§ Amendments reported (according to Order).
§ Clause 3 (Mother may appoint guardian).
THE EARL OF LIMERICKsaid, he objected to the provision in the clause which gave the mother of the infant power to appoint and nominate a guardian by deed or will. Whatever was to be done on behalf of the wife ought to be done openly during her lifetime. It ought not to be possible for her to make an arrangement in secret, which should be kept secret until after her death. It was a dangerous and invidious power to give to enable a wife to appoint a guardian by will. He, therefore, proposed to amend the sub-section of the clause by providing that the Court might, upon the application of the mother of an infant, appoint a person or persons to act as guardian or guardians jointly with the father if the Court was satisfied that this was necessary or desirable.
§
Amendment moved,
In Sub section 2, line 22, leave out from ("The") to end of sub-section and insert ("court may, upon the application of the mother of any infant, appoint some fit person or persons to act as guardian or guardians of such infant after her death, jointly with the father of such infant, if satisfied that such appointment is necessary or desirable for the welfare of such infant."—(The Earl of Limerick.)
§ LORD FITZGERALDsaid, the objections of the noble Earl would in some respects apply to any appointment of a guardian by will, for until the death of the testator, if it was the testator's wish, the provisions of a will must be kept secret. As the clause stood, it was the clause of Lord Cairns; and the Amendment would restore the clause to its original form. There might be cases in which the wife had the strongest reason for believing that her husband was not a proper person to be intrusted with the charge of their children after her death.
LORD INCHIQUINsaid, he could not agree with either the Amendment or with the clause as it stood. The noble and learned Earl (the late Earl Cairns) said that in case of a temporary differ- 619 ence between the husband and wife the latter might make an application to the Court to annoy him and put him upon his defence. In any case the clause would be a fruitful source of inconvenience. The person or persons appointed by will would most likely be hostile to the husband, and even if not hostile could scarcely assert a claim to act without offending the father. The father might say that if he was to be interfered with the children might be taken from him altogether, and he would not leave them any of his property. There might be individual cases in which the father should be interfered with; but for that the law already provided. He should, therefore, move that the sub-section of the clause be omitted.
§ Amendment moved, to leave out Subsection 2.—(The Lord Inchiquin.)
§ LORD WATSONsaid, he approved of the clause as it stood rather than of the proposed Amendment. The clause could have no operation until it was proved that the father was not a fit person to have the control of the children, and that the person nominated was a fit person. A person nominated as guardian would have to make up his mind before applying to the Court whether he was likely to obtain the confirmation of his appointment. He would enter the Court with the responsibility that the case for his appointment must be proved.
§ THE LORD CHANCELLORsaid, there was some inconvenience in having two Motions before the House at once. He had already explained that the law at present was very different from what it would be under that clause. It was true that the Court had power to take children from their father, either in the lifetime of the mother or at any other time, for causes which the precedents had established as sufficient. But that power was circumscribed by the rules for its application laid down by Lord Eldon and other Judges, and was never exercised save in the most extreme cases, not only of immorality or profligacy on the part of the father, but of such immorality as was proved to be likely to directly influence or affect the child. Even if the father was living in scandalous profligacy, but did not bring his children into the society of his paramour, or did not deprave the child 620 by wicked teaching, the Court would not interfere. The cases chiefly meant to be provided for by the sub-section were those in which, in the opinion of all reasonable persons, it must be altogether wrong to allow the child to fall back under the power of the father. Take an extreme case. When the father and mother were living apart, and when there were young children, girls, living under the care of the mother during her life. In such cases, after the mother's death the children fell back under the power of the father, however undesirable such a result might be, and even if the mother, herself being pure and blameless, had obtained a divorce from her husband. In such a case as that, this clause would enable the wife to anticipate and make provision for the event of her own death, and to name the person whom she would wish to succeed to her own place, so far as that was possible. But the clause as framed by his lamented Friend Lord Cairns did not give her an absolute power, or enable her to do even this, for any reasons which were not grave reasons. The Court could only confirm the exercise of the power in cases where it was absolutely necessary to do so for the benefit of the child.
§ THE MARQUESS OF SALISBURYsaid, he must protest against the use which had been made of the name of his noble and learned Friend the late Earl Cairns, whose authority was so great in that House. He knew that at the end of last Session his late noble and learned Friend had expressed himself privately as perfectly horrified with this Bill, and his wonder that it had ever been allowed to pass the House of Commons. What Earl Cairns might have said to the Committee to mitigate legislation which he did not feel himself strong enough to avert in the way of compromise he did not know; but as the noble and learned Earl was now no more, he asked their Lordships to dismiss from their mind any prejudice in favour of this Bill which might be raised by citing the name of Earl Cairns. It was impossible to exaggerate the importance of the decision at which they had arrived, because it was a decision which might affect the happiness of any married man who had the misfortune to be a widower. A man might be exposed to interference to which he had never been exposed before. It became them, 621 therefore, to watch whether the securities were sufficient to save a father against whom there might be no complaint from undue and improper interference. The language of the noble and learned Lords who had spoken was very different from that of the Bill. They said it was necessary, where a wife was living separate from her husband, and the father's influence would be dangerous to the children, that they should be saved from his influence; but there was nothing of that kind in the Bill. If their language could be imported into the Bill he should not have so much objection to it. The Bill said nothing of the cases to which the Lord Chancellor had referred, or of a father who wilfully corrupted his children's mind. It allowed a wife, by a will secretly made and locked up in her desk, to appoint any guardian or guardians, male or female, no matter what their character or capacity as guardians, who were to have equal power with the father; and if there were two of them they could outvote the father in everything which appertained to the bringing up and management of his own children. What security was there that the wife would exercise such a power wisely? None whatever. Of course, in a vast number of instances the power would not be exercised at all, or if it were it would be rightly exercised; but there might be a case where a woman, living in loneliness, subject to the influence of mischievous or gossiping persons, misled by false stories, or guided by mistaken spiritual advisers, might exercise this power in circumstances which would make it improbable that she was exercising it wisely. The mother would have the power of projecting into the family of the father two representatives of her own, who would have the right of determining how the children should be educated. Let their Lordships consider what cases might arise. There might be the case of a Catholic or a Protestant mother, the father being of the opposite religion. Or there might be a very Low Church father and a very High Church wife, and the latter might appoint two High Church guardians, who would proceed to bring up the children in a manner wholly opposed to the wishes of the father. The Bill would enable the wife to exercise after her death a. power which she could not 622 have exercised while living. The two guardians appointed by her would obtain a power which she never possessed, and however odious they might be to the father, she, being dead, would be incapable of retracting what she had done. Keeping cases of scandal out of view altogether, they would wreck hundreds of households if they were to allow guardians to be forced into a family at variance with the opinions of the father. The father might be a man who took an old-fashioned view as to the way his daughters should be educated. The wife might be a strong-minded woman, and appoint as guardian a woman with a taste for male studies and occupations. They might, on the other hand, have a father with an austere view of the duties of life, and wished to bring up his sons in virtue and frugality, and perhaps an undue abstinence from the amusements of the world; and the friends of the wife might be of an opposite character. They might be persons who had a great love of amusement, who might, perhaps, attach an exaggerated importance to our great national sports at Epsom and Newmarket. What would be the effect on the children? It was bad enough for the father, for he could not imagine anything more deplorable to a father than having his children wrested from him in this way, and brought up in a manner he did not approve of. But what would be the effect on the children? There would be constant squabbling between the father and the guardians as to what kind the religious teaching should be—what morality should be considered right or wrong. It would completely wreck the morals and the faith of the children, who would see those who had the bringing of them up differ on every point on which their bringing up depended. He was aware the answer would be that this was not to take place unless a Court deemed it necessary and desirable. No doubt, there was a great deal of majesty in a Law Court, and his noble Friend thought he had disposed of every question when he said it would be decided by a Court. For his own part, however, he was not an absolute believer in the divinity of a Court. He was not prepared to give that absolute confidence to the Court except under well-defined conditions. Under the Bill, if only a single Judge thought it desirable not to interfere 623 with, the dying wishes of a wife, the guardians she appointed would be thrust upon the father.
§ THE LORD CHANCELLORNo, no. The burden of proof was the other way.
§ THE MARQUESS OF SALISBURYThe words of the Act were—
The court, after her death, if satisfied that such appointment is necessary or desirable for the welfare of the children," &c.He did not say that in a considerable number of cases the Judge would not insist on confining the confirmation to cases of proved incapacity or unfitness of the father; but they had no security whatever that that would universally be the case. If they laid down in an Act of Parliament what they required to be done, no doubt the Judges would give effect to their wishes; but if a Judge were to decide, without any guidance whatever, whether he would set aside the nomination of guardians by the mother, the decision would be left absolutely to the accidents of his own individual disposition. The Judge's intentions might be good, but then he might be a man with peculiarities. For instance, he might think that religion was not of much importance. He had been treating the matter on the supposition that the High Court would have to decide the question; but, under the provisions of the Bill, a County Court Judge would have the power of forcing guardians into a family at the will, perhaps, of a wicked, an infamous, or a frivolous wife. He could not conceive that their Lordships would, with light hearts, make such a revolution in all English families as was shadowed forth by this Bill. If words were introduced to supersede the father, where he was shown unfit to have the guardianship, he would not resist any such proposal; but the Bill, as it stood, seemed to him to be the greatest interference with the rights and privileges which men valued more than they did their own lives, on the mere opinion of a County Court Judge. To oust the father from all care of his own children seemed to him so unwise, and so unlike anything ever done in legislation before, that he earnestly hoped the House would pause before agreeing to it. He thought the best plan would be not to divide, but to bring up a clause dealing with those cases on which they were all agreed.
§ EARL GRANVILLEsaid, the noble Marquess had spoken in an impassioned way against reference to the opinion of the late Earl Cairns, and had called on their Lordships not to allow their minds to be biassed by what had been said in that connection, and then the noble Marquess proceeded to give a very strong expression of opinion on the part of Earl Cairns against the Bill, which, it appeared, had been confided to the noble Marquess last year. He (Earl Granville) thought it better to be guided by the public utterances of Earl Cairns; and, so far as he knew, Earl Cairns had never expressed his opposition to this Bill, though he had said it was a Bill which required great care and attention with regard to its details. Acting upon that opinion, Lord Cairns suggested that the Bill should be referred to a Select Committee, and in that Select Committee he took immense pains himself. It was an extraordinary thing for the noble Marquess to ask the House to vote against a clause on the authority of Lord Cairns, which Lord Cairns himself had framed. The noble Marquess went further, and made a speech in which he spoke of the danger of giving a posthumous power to a wife to overrule her husband in respect of guardians, and then, at the end, the noble Marquess anticipated what their answer would be—namely, that they should read the words of the clause, which showed that there was no such power given. The Bill provided simply that the Court should have power to intervene, and if it thought proper might confirm the appointment of the guardians so nominated. But if the noble Marquess was right, the argument was strong against the power which the Court of Chancery possessed in regard to children. Then he said he was putting his case too weakly; this decision was to be taken, not by a Court of Chancery, but by a County Court Judge.
§ EARL GRANVILLEOf course the noble Lord was quite right to cheer his Leader, whatever he might say. But he was going to state what was in the Bill itself. If the noble Marquess had read the Bill, he would have found that it was in the option of either of the parties to go to the County Court Judge or require the case to be taken to a higher Court, 625 and if first decided by the County Court Judge, there was a right of appeal to the highest Court in the Kingdom. He really never saw a case which more completely disposed of the arguments of the noble Marquess than the present.
§ LORD BRAMWELLpointed out that by the 5th clause of the Bill the wife would have the power to go to the Court in the lifetime of her husband; and it occurred to him that unless some such provision as that under consideration were inserted, the wife, if she had reason to be dissatisfied with her husband, would be almost driven to go to the Court in his lifetime to get the power to appoint guardians, and scandals would thereby arise which otherwise would never be made public.
§ Amendment negatived.
§ On Question, That Sub section 2 stand part of the Bill?
§ VISCOUNT CRANBROOKsaid, he hoped the clause would not be struct out altogether, as he felt the force of the remarks of the noble and learned Lord who had just sat down, as the wife might be driven into Court to do what, under the Bill, she could do in private. He thought it would be most undesirable to drive the husband and wife into a quarrel. There were many cases in which a wife would endure a great deal for the sake of the children rather than raise a scandal.
THE DUKE OF RICHMOND AND GORDONsuggested that it would be well to strike out this particular clause then, and to bring up another clause which would more completely meet the views of noble Lords on the third reading. He thought the power of the wife in respect to appointing guardians to act after her death should be confined to cases in which the husband had been guilty of misconduct as to make him an improper person to have the absolute control of his children. What was desired was, the introduction of words which would set out the cases in which it would be desirable the wife should have the power to appoint guardians.
§ THE LORD CHANCELLORhoped his noble and learned Friend would not agree to the suggestion. It would be better to amend the clause on the third reading if thought necessary.
§ On Question? Their Lordships divided:—Contents 42; Not-Contents 28: Majority 14.
§ Amendment disagreed to.
§ Clause agreed to.
§ Clause 5 (Court may make orders as to custody).
§ EARL BEAUCHAMP moved an Amendment limiting the power of the Court to make an order to cases in which the father and mother are separated by deed or decree of a Court or otherwise. He explained that the Amendment was drafted and proposed by the late Lord Cairns, when the Bill was before the Select Committee. If some such alteration were not introduced into the clause a mother would be able to make an application to the Court upon any frivolous pretext. To prevent such occurrences the power of applying to the Court ought to be limited to cases where the parents had separated. Under the clause as it stood husbands would be at the mercy of their wives, should the latter choose to carry their domestic quarrels into Court.
§
Amendment moved,
In page 2, line 12, to insert at the beginning of the clause ("Where the father or mother of any infant are living separate under a separation by deed or decree of the Court or otherwise.")—(The Marl Beauchamp.)
§ LORD FITZGERALDopposed the Amendment. There was no public expression on the part of Lord Cairns as to the proposal contained in the clause. Was it not a shocking thing that this right should not be given to the wife unless she was divorced or lived separately from her husband?
§ LORD BRAMWELLsaid, that by the clause as it stood when the husband and wife were living together the wife might require the Court to make an order, the effect of which would be to transfer the control of the children, which the father now rightly possessed, to both father and mother. That would be a Dual Control of the most vicious kind. The reason why this right should be given. to the wife when living separately was that she was no longer a member of the household, and then it might be proper that she should have a voice in the management of the children. When husband and wife were separated in that way there was no increase of scandal 627 in her going to the Court. What he remembered that great lawyer and. consummate Judge, whose loss he so much regretted, did when he dealt with this provision was, he objected to it on the ground, among others, that every little quarrel between husband and wife, which might otherwise be easily made up would enable her to rush off to the Court.
§ LORD BRABOURNEsaid, that whilst the Law Lords on the Select Committee had differed upon this Amendment, the three Lay Lords had all voted against it; and as he had the honour to be one, he wished to say why he had ventured to dissent from Lord Cairns's opinion. In most cases of husband and wife disagreeing, the wife would never desire to apply to the Court, and the question would never arise. But there might be cases—as for instance, when it had been agreed before marriage that the children of one sex should be brought up in one religion, and those of the other sex in another—in which the wife might desire so to apply. If this Amendment were carried, she could not do so whilst she lived with her husband; but the moment she separated from him, "either by the decree of a Court or otherwise." she could make the application. Therefore, this Amendment would offer a direct premium to the wife to separate from her husband, by making that separation the only way by which she could acquire a right which it was generally conceded that she ought to have. His (Lord Brabourne's) noble and learned Friend (Lord Bramwell) said that the clause without the Amendment would strike at the supremacy of the husband; but he should recollect that the whole of this Bill was based upon the desire to elevate the status of the mother, and give her a greater right over her children than she had hitherto possessed, and if his noble and learned Friend wished to maintain unimpaired the entire supremacy of the husband, he should have opposed the Bill upon its second reading.
§ On Question? Their Lordships divided:—Contents 28; Not-Contents 30: Majority 2.
§ Amendment disagreed to.
§ Clause agreed to.
§ Bill to be read 3a on Thursday next.