HL Deb 18 July 1839 vol 49 cc485-94
Lord Lyndhurst

regretted at that late hour to call their attention to the Custody of Infants' Bill, but he thought he should be justified in their Lordships' opinion when he stated, that his noble and learned Friend, the Lord Chief Justice of the Queen's Bench, was now present, and had attended there the whole evening; and in consequence of his duties on the circuit, he would not be able to attend the discussion of this bill on any future occasion, and he was sure their Lordships must be most anxious and desirous to hear the opinion of his noble and learned Friend on this bill. He stated this in justification of bringing forward this question at so late an hour, but their Lordships would recollect, that this subject had been discussed on a former occasion, and twice in the other House of Parliament, and it would not necessarily occupy much of their time and attention. In a late Session of Parliament, a bill similar to the present, but differing in some of its details, came from the other House, which passed that House by a very large majority. When the discussion came on in their Lordships' House there was a very thin attendance; but after a long discussion, the second reading was lost by a small majority—a majority of two voices, there being nine votes for the second reading, and eleven against it. The bill had come again up to their Lordships, having passed the House of Commons by a majority greater than on a former occasion; and he thought, therefore, considering the sanction it had received—considering that their Lordships could hardly be considered as having expressed any opinion upon it, he came to the consideration of this question without any prejudice against it, and he was sure that on entering upon the subject it would receive their most anxious consideration. The first point to consider was, what was the state of the law with respect to the subject to which this bill applied? By the law of England, as it now stood, the father had an absolute right to the custody of his children, and to take them from the mother. However pure might be the conduct of the mother—however amiable, however correct in all the relations of life, the father might, if he thought proper, exclude her from all access to the children, and might do this from the most corrupt motives. He might be a man of the most profligate habits; for the purpose of extorting money, or in order to induce her to concede to his profligate conduct, he might exclude her from all access to their common children, and the course of law would afford her no redress: That was the state of the law as it at present existed. Need he state that it was a cruel law—that it was unnatural—that it was tyrannous— that it was unjust? When he said that it was a cruel law, who was it that knew the love a mother had to her offspring, the delight she received in their smiles, the interest she took in all their sorrows, and the happiness she had in the superintendence of them; who did not agree with him in saying, that to deprive her of all this from base motives was one of the most cruel inflictions that could be put on her? But when he stated further, that the determination of the father might effect this without reference to the character of the mother, she being the most virtuous of women, whilst he might, for the base object he had stated, from motives of self-interest, deprive her of that access to her children—did he not make out the charge which he had originally made, that the law was a cruel, an unjust law? And if he made out such a case for the satisfaction of their Lordships, did it not follow, almost of necessity, that they would agree with him that it was the duty of the Legislature to find some remedy? He would further state, and it must strike their Lordships as an extraordinary feature in this subject, that the law he had stated applied only to legitimate children—it applied only to the issue of a virtuous mother. If the child were an illegitimate one, and the mother in consequence profligate, the law was then directly the reverse; the father then had no control over the child. In the one case, a pure virtuous female was deprived at the bare will of her husband of all access to her child; in the case of the profligate woman, as he had stated, the father had no absolute control over the child, and the mother might dispose of it as she thought proper. Mere general statements of cases of this kind were not sufficient to impress their Lordships with the cruel operation of this law; something of detail was necessary to make an impression on the mind; and, therefore, with a view of showing them how the system worked in practice, and also to satisfy them that he had correctly stated the law on the subject, he would refer to three or four cases arising out of this law, that their Lordships might see how cruelly it worked, and how it was abused. In the first case that he should refer to, the father was a French emigrant, who married a woman possessed of some landed property, yielding 700l. a-year. A settlement was made on him on their marriage of the interest of 200l. in the event of his surviving his wife. They had one child, which was an infant at the breast at the time that he referred to. The husband was dissatisfied with the settlement, and endeavoured to induce his wife to make a will in his favour. There were reasons which induced her to refuse him. What did he do? He immediately threatened to take possession of the child, and take it to the continent by law. The child was not weaned, and the mother, in the greatest distress and agony, thought she had a right to it under the circumstances, and made her escape to her mother's. The father got hold of the child by stratagem, which made it necessary for the mother to make an application to the Lord Chancellor for relief. The case was heard by Lord Eldon; he said he was powerless, and the mother was obliged to see her child put in the care of a stranger. Here was a case of extreme cruelty and hardship, and all inflicted for the basest purposes. Another case, which was the second he would refer to, was the case of a man named Skinner, who had treated his wife with the extreme of brutality and cruelty. A separation had taken place between them; he was living with another woman in a state of adultery. He had a daughter, six years of age, and he insisted on getting possession of his child. The case came before his noble and learned Friend near him, and an agreement was come to to place the child in the custody of a third person. The husband, dissatisfied with this agreement, took the child from that person, and from all custody of the mother, and put her into the custody of Delavards, the woman with whom he was living. An application was made to the Court of King's Bench, of which court his noble and learned Friend was a judge, for a habeas corpus to have the child brought up and delivered up to her former custody. His noble and learned Friend, he believed, was most desirous to give relief. There was a breach of agreement, and his noble and learned Friend took some time to consider the case, and consulted the other judges of the court, but they were satisfied that be could not interfere, and he was obliged to desist. Here was a case of extreme hardship and cruelty—the father living with another woman. Another application was made to the court by the mother, but the court said as the law now stood, it could offer no redress. The third case to which he should refer, was the case of Mr. and Mrs. Ball; they were separated by a decree of the Ecclesiastical Court in consequence of the adultery of the husband. In this case the child was above the age of nurture; she was desirous of remaining with the mother, and the father would not allow it. She was placed in a situation where she had no society but the society of a woman of all work. Application was made to the Court for assistance and relief. The case came on before Sir J. Leach, who at that time held the office of Vice-Chancellor. The counsel had stated— The question really is, whether a child is to be deprived, by the brutal conduct of the father, of the company, advice, and protection of a mother, against whom no imputation can be raised? The Vice-Chancellor said— Some conduct on the part of the father, with reference to the management and education of the child, must be shown, to warrant an interference with his legal right; and I am bound to say, that in this case there does not appear to me to be sufficient to deprive the father of his common law right to the care and custody of his child. It resolves itself into a case for authorities; and I must consider what has been looked upon as the law on this point. I do not know that I have any authority to interfere; I do not know of any case similar to this, which would authorize my making the order sought in either alternative. If any could be found I would most gladly adopt it; for in a moral point of view I know of no act more harsh or cruel than depriving a mother of proper intercourse with her child. I was myself counsel in two cases in which Lord Eldon refused petitions precisely similar. 'Smith v. Smith' one of them, was precisely similar in its facts to the present case, except that the father's object there was to compel the mother by such means as are now complained of, to give up to him some property, which was settled to her own separate use. My course of argument in that case was, that as the law allowed the mothers of bastards to retain possession of their children till the age of seven, à fortiori, must the law allow the care of legitimate children to be vested in the mother (the child in that case was under seven). The Lord Chancellor, however, refused the order, and before any further proceedings were had, either the mother's or the child's death determined the question. That was a very strong case; yet the Lord Chancellor held that the court had no jurisdiction. The petition in behalf of Mrs. Ball and her daughter was dismissed. There was only one case more with which he should trouble their Lordships. It was that of Mrs. Greenhill. That lady while residing in the country with her three children, for the benefit of her health, was informed that her husband, who was at sea in his yacht, was living in adultery with a woman named Graham, whom he had on board with him, and by whose name he sometimes passed. Astounded at this intelligence Mrs. Greenhill went to Exeter, to consult her mother as to what she should do. She was advised to institute proceedings in the ecclesiastical court for a separation, on the ground of adultery. The husband, knowing the power which he had, sent his attorney to her, offering, if she discontinued the suit, to settle an allowance on her, which she refused, and would have nothing but what the law allowed. He then sent again to inform her, that unless she gave up the suit, he would take away the children; and on the refusal of Mrs. Greenhill to give them up or to discontinue the suit, he issued a habeas corpus to obtain possession of the children. The case was argued in the first instance before Mr. Justice Patti-son, who took time to consider it, but he at length found that he was utterly powerless, and the order was made. It was then suggested that a court of equity might afford Mrs. Greenhill some relief, but there she fared no better; and this amiable lady, against whose purity of conduct not an imputation was even attempted to be cast, was obliged to separate herself from her friends in this country, and go with her three children to reside on the continent, to avoid the service of the process of the court, and the consequent separation from her children. He had now, he trusted, stated sufficient to show that the law as it now stood on this matter was cruel, unjust, and unnatural. If he made out that proposition, the next step was to show that it was the duty of the Legislature to provide a remedy, and then the only question was, whether the remedy proposed by this bill was such as they ought to agree to. He did not ask that the possession of the children should be taken from the father and given to the mother. What he asked was more moderate. It was, that the mother should, where she had cause of complaint in being separated from her children, go to a judge of one of the equity courts, and if' she made out a sufficient case, she should have access to the children under such restric- tions as the judge should think proper. Another provision of the bill was, that where a sentence of a court separated the husband from the wife on the ground of adultery of the former, the court should make such regulations for the intercourse of the mother with the children as it might deem necessary. If any alteration in the form of these clauses were required, the committee would be the proper place for their discussion. He had heard of many objections to the bill, but he had not heard of any which appeared to him to be valid. It was said that the wife was so subject to her husband by common law, that a much larger alteration in the law than the present bill contemplated would be necessary to release her from many hardships to which she was exposed; but certainly it was no fair answer to this bill, that because you could not remedy all the grievances existing, you should not attempt the remedy of one particular case of which the remedy was in your power. But then it was said, that such an alteration should not be made in the law to meet only a few cases of the kind contemplated by the bill. Why were the cases so few? Because the law on the subject was so clear and precise, that no remedy could be obtained even where the grievance was greatest and the hardship most severe. Neither was it a good objection to the bill, that a large portion of the time of the courts would be taken up by such cases, which would thus be greatly increased. Give the power to a judge to redress the grievance, and what would happen? If the party complained of conceived that his conduct was bad, and that he was in the wrong, he would not go into court, but allow the matter to be settled by the mediation of friends. There was little fear, then, of having any great increase of these applications, for it was well known that women will suffer much before they resort to a court for redress, but surely that was a good reason why redress should be given when a case of grievous wrong had been made out. He was unwilling at that late hour to trespass longer on the indulgence of their Lordships. This measure had been twice under the consideration of the other House, once under that of their Lordships, and had frequently been discussed by the press, and it was impossible he could pass over all the objections that had been urged. He had laid before their Lordships cases of great hardship, and he now called on them to sanction the remedy, by assenting to the second reading of the bill. The noble Lord moved that it he read a second time.

Lord Wynford

agreed with his noble and learned Friend that the law was as he had stated it, and that some change in it was necessary, but he denied that the bill would effect the alteration required. On the contrary, he thought the bill was a mischevious one, which would do much harm, and no good where the good was most required. He was anxious that in case of unhappy differences between the father and mother, care should be taken of the interests of the children, and at the same time of the rights of the husband. He had on a former occasion said that he should be ready to concur in any measure which would keep both those objects in view. His noble and learned Friend had truly said, that the custody of the children belonged by law to the father. That was a wise law, for the father was responsible for the rearing up of the child; but when unhappy differences separated the father and mother, to give the custody of the child to the father, and to allow access to it by the mother, was to injure the child for it was natural to expect that the mother would not instil into the child any respect for the husband whom she might hate or despise. The effects of such a system would be most mischevious to the child, and would prevent its being properly brought up. If the husband was a bad man, the access to the children might not do harm, but where the fault lay with the wife, or where she was of a bad disposition, she could seriously injure its future prospects. These were objections which would prevent him giving his support to the bill in its present shape. If, instead of this bill, his noble and learned Friend would bring in a bill to lessen the expense of debarring the profligate father from exercising authority over his children, he (Lord Wynford) would readily join his noble and learned Friend; but he thought they ought also to prevent the improper access of an angry woman to the children of her husband. In his belief, where the measure, as it stood, would relieve one woman, it would ruin 100 children. On these grounds, he moved that the bill be read a second time that day three months.

Lord Denman

was of opinion that this bill ought not to be settled by the votes of the Law Lords merely. They might bring forward the result of their experience, but he thought the measure ought to be carried or rejected by the sense of the House at large. Some alteration, and that of a sweeping character, in the present law on this subject, was absolutely necessary to the due administration of justice, and for the prevention of the frightful injuries to society which the present system gave birth to. In Skinner's case, which was tried before the court of Common Pleas, it was settled, that though the Court of Chancery had, the court of lacy had not, the means of depriving the husband of power to remove his child. In the case of the "King v. Greenhill," which had been decided in 1836, before himself and the rest of the judges of the Court of King's Bench, he believed that there was not one judge who had not felt ashamed of the state of the law, and that it was such as to render it odious in the eyes of the country. The effect in that case was, to enable the father to take his children from his young and blameless wife, and place them in the charge of a woman with whom he then cohabited. After having looked at this bill with the most anxious care, and with a deep feeling of the impolicy and impropriety of going about to change the law without a strong probability of great benefit resulting, he did believe that the measure did apply as substantial a remedy as could be applied, and that there was no ground for apprehending that any evil consequences would result from the change Indeed, the probable danger appeared to him to be nothing; while the present law was cruel to the wife, debasing to the husband, and dangerous, and probably ruinous to the health and morals of the children, who could not have any such sure guarantee against corruption, under the tutelage of a profligate father as the occasional care of a mother. The principle, then, of the bill seeming to him to be correct, he must say he thought their Lordships would incur a grave responsibility if they threw out, without reading for the second time, a bill which had been Sent up to them, now for the third time, by such large majorities of the House of Commons.

The Lord Chancellor

said, the great danger in the Legislature endeavouring to arrange the disputes of husband and wife Was, lest they should lose sight of that which ought to be the primary object of all courts of justice—the conservation of the rights of the children. Now, he could not but think that in this bill that had been too little attended to. He thought besides, that objections existed to the machinery of the first two clauses, which must render it impossible for their Lordships to adopt the bill. All the beneficial purposes which the present measure was intended to effect might, he conceived, be secured by extending the power of that jurisdiction with which alone the control over matters of this kind rested. Such powers, however, when given ought to be exercised with the greatest caution, and always with a view to the interests of the children.

Amendment negatived. Bill read a second time.

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