Lords Sitting of 24 March 1873

MINUTES.
PUBLIC BILLS—First Reading—Drainage and Improvement of Lands (Ireland) Provisional Orders (No. 2)* (46).
Second Reading—Custody of Infants (38).
Committee—Poor Allotments Management* (20–43).
Committee—Report—Bastardy Laws Amendment (29–44); Supreme Court of Judicature (14–45).
Royal Assent—Local Government Provisional Orders [36 Vict. c. i].

BASTARDY LAWS AMENDMENT BILL.
(The Earl of Shaftesbury.)
(NO. 29.) COMMITTEE.
Order of the Day for the House to be put into Committee, read.
Moved, "That the House do resolve itself into Committee."—(The Earl of Shaftesbury.)
THE MARQUESS OF SALISBURYsuggested that the Bill should be sent to the Committee pro formâ. He would
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remind their Lordships that on the second reading he drew attention to the unsatisfactory state of the existing law with regard to cases of bastardy, and pointed out that even with the Amendment which this Bill proposed to make, no real improvement would be effected. As their Lordships were doubtless aware, the Bill had been introduced with the object of remedying a curious slip in the Act of last Session. It had been rendered necessary through a blunder of the other House, and it was no doubt highly necessary that the blunder should be rectified as soon as possible. But as the Legislature had commenced once more to deal with the matter he thought they should not confine themselves to the defect in the Act of last Session, but see to improve the whole law. At present the law was so complicated and puzzling that it was a troublesome and difficult matter to ascertain accurately how cases of this description should be dealt with. By way of illustration, he might refer to Clause No. 3, which altered certain forms in an enactment of

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1845; but on referring to that Statute he found it was one explaining, referring to, and reciting another Act which had been repealed, so that some of the Act of 1845 rested on nothing at all, and Clause 3 of this Bill altered forms which had not now any existence at all. In fact, these forms were placed in mid-air, with nothing in particular for them to rest upon, and the clause referred to forms which had no legitimate existence whatever. It was not surprising that with such a law as this justices of the peace and others should be puzzled how to dispense the law, and that the law should work unsatisfactorily. No blame whatever rested on Mr. Charley who introduced the Bill in the other House—the alterations to which he had just referred were made during the progress of the Bill through that House. If their Lordships committed the Bill pro formâ, he (the Marquess of Salisbury) would on the Report introduce Amendments which would repeal any portions of former Acts which it was necessary to deal with, and would re-enact any provisions in those Acts which it was thought necessary to continue. This he thought was a more work man like way of proceeding than that of referring to a number of previous Statutes without quoting the portions that were to remain in operation. He believed there was to difference on the matter between him and the noble Earl (the Earl of Shaftesbury) who had charge of the Bill, and he thought the mode of proceeding which he proposed had the sanction of his noble Friend the Chairman of Committees, whose opinion on questions of form their Lordships all so much respected. He might add that he did not think his noble and learned Friend on the Woolsack had any objection to the Amendments in point of form. He (the Marquis of Salisbury) begged, therefore, to move that the Bill be now committed pro formâ, so as to enable him to have his Amendments printed. When the Bill next came before their Lordships they would have full opportunity for discussing any Amendments and additions which he might propose.
THE EARL OF SHAFTESBURYsaid that, as his noble Friend had explained, neither he nor Mr. Charley was answerable for the portion of the Bill that required correction. His only wish was to have the object of the Bill carried out in the most effective manner; and, there-
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fore, he had no objection to the course proposed by the noble Marquess.
THE LORD CHANCELLORsaid, he had looked over the Amendments which the noble Marquess proposed to insert in the Bill, and he could not see any objection to them in point of form. But he would suggest to his noble Friend who had charge of the Bill (the Earl of Shaftesbury) whether in its next stage a clause ought not to be introduced to confirm orders made by justices in ignorance of the flaw which had been discovered in the Act of last Session.
Motion agreed to; House in Committee accordingly; Bill reported without Amendment; Amendments made; Bill recommitted to a Committee of the Whole House on Thursday next; and to be printed as amended. (No. 44.)

CUSTODY OF INFANTS BILL—(No 38.)
(The Lord Chelmsford.)

SECOND READING.
Order of the Day for the Second Reading, read.
LORD CHELMSFORD,in moving that the Bill be now read the second time, said, the object of the measure, which had come up from the Commons, was to extend the power of the Court of Chancery with regard to the custody of infants in cases where differences existed between the parents, and the family home had been broken up. Before 1839 the position of a wife, driven from her home and compelled to separate herself from her husband by reason of his misconduct, was very miserable; because she might have been deprived of all access to her infant children and from all intercourse with them. By an Act passed in that year, which was known as Talfourd's Act, that position was slightly alleviated. Talfourd's Act empowered the Court of Chancery not only to give the mother access to her children, but also to order them to be delivered up to her and remain in her custody till they were seven years old; but with regard to children above that age there was very little mitigation of the state of things existing previously to 1839. The position of a wife separated from her husband was. rendered still more distressing in consequence of the manner in which the Court of Chancery dealt with separation deeds. At the present moment, by cruelty and

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adultery the husband might drive the wife from her home, and she, to avoid the scandal arising from proceedings in the Divorce Court, might agree to a deed of separation. This deed might contain a clause giving the children to the mother; but if so, the deed was not in the slightest degree binding, because if the husband did not choose to be bound by it, and refused to give her the children, and if she appealed to the Court of Chancery for its interpretation, the Court must refuse its aid on the ground that it was contrary to public policy for the husband to relinquish his duty in the care and management of his children. If the conduct of the husband had been so gross that in the opinion of the Court he was not a fit person to have the custody of his children the Court, might by means of a clause in the separation deed hand them over to the wife; but before the Court would take that step it must be proved to its satisfaction that the conduct of the husband had been so gross that the removal of the children was positively necessary in their own interests. No cruelty to the wife, and no adultery, except it were committed in the home of the children, would induce the Court of Chancery to enforce a separation deed of that kind. This nap of the Court had consequently the effect of preventing that which was so frequently sought—a private arrangement where by the scandal of publicity was avoided. The Divorce Court had assumed the power of directing, in the case of a judicial separation, in the custody of which parent the children should remain; but no judicious adviser would counsel a wife to resort to the Divorce Court if a proper arrangement for herself and her children could be come to without recourse being had to such a step. The late Lord Penzance had stated a very strong opinion in favour of private deeds rather than Court orders for the separation of a husband and wife who had differences. There was another reason why private arrangements should be favoured—that private deeds left the door open for reconciliation, while proceedings in the Divorce Court completely closed it. The main clauses of this Bill were only two in number. The first empowered the Court of Chancery to order the wife access to and the custody of infants under 16 years old. That age was mentioned because it was the one at which
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in this country children had the legal right of choosing their own guardians. The second clause provided that no deed of separation was to be held invalid by reason of its containing a provision that the father shall give up the custody and control of the children to the mother; but there was a proviso that the Court need not enforce such a provision if it should be of opinion that it would not be for the benefit of the children to give effect to it. The third clause enacted that nothing contained in the Bill should render valid any agreement by the father to give up the custody of the children on condition of any pecuniary consideration to be paid to the father. He proposed to strike out that clause as unnecessary, seeing the power that was to be given to the Court of Chancery by the other clauses. Some persons were anxious to have this Bill extended to Scotland; but that could not be done, the law as regards infancy being quite different in Scotland from what it was in this country. In Scotland a child of 14 years old might choose its own guardian.
Moved, "That the Bill be now read 2a"—(The Lord Chelmsford.)
Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Friday next.

SUPREME COURT OF JUDICATURE BILL—(No. 14.)
(The Lord Chancellor.)

COMMITTEE.
Order of the Day for the House to be put into Committee, read.
THE LORD CHANCELLORsaid, that though he proposed to move that the House go into Committee on the Bill, according to Notice, he proposed that it should only be committed pro formâ, and with the view of inserting, on the Report, Amendments which might be printed before the Bill came on to be regularly discussed in Committee. Under these circumstances, he hoped the noble Lord (Lord Denman) who had given Notice of a Motion to defer the Committee on the Bill for six months would not think it necessary to move that Amendment to the Motion which he was now about to make. He had intended, with the permission of their Lordships, that the Committee on the Bill should be taken next Monday; but as the noble Duke (the Duke of Somerset) had post-

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poned his Notice on the subject of the works at Alderney to that evening, he would name to-morrow week for discussing this Bill in Committee.
Moved, "That the House be now put into a Committee on the said Bill."—(The Lord Chancellor.)
LORD DENMAN,yielding to the request of the noble and learned Lord on the Woolsack, would not move his Amendment.
Motion agreed to; House in Committee accordingly; Bill reported, without Amendment; Amendments made; Bill re-committed to a Committee of the Whole House on Tuesday the 1st of April next; and to be printed as amended. (No. 45.)
House adjourned at a quarter before Six o'clock, till To-morrow, Twelve o'clock.