HL Deb 30 April 1885 vol 297 cc1084-92

Bill read 3a (according to Order). On Motion, "That the Bill do pass?"

LORD NORTON

said, he rose to move an Amendment on Sub-section 2 of Clause 3, which gave a mother power to appoint provisionally, by deed or will, a guardian or guardians to act jointly with the father after her death. He proposed to insert the following Proviso:— But no such provisional appointment of guardians to act with the infant's father shall take effect unless confirmed by the Court upon evidence sufficient in its judgment to prove that the father is unfit to be the solo guardian. As the clause stood, a mother might appoint guardians to act with the father, unless the sanction of the Court should be refused. He thought it better, conversely, that such appointment should be invalid unless confirmed by the Court. Every father should not be obliged to void a formal appointment by proving himself fit to be sole guardian. The hostile guardian should be made to show cause for his appointment at all.

Amendment moved, In line 25, to leave out from]"infant" to the end of the sub-section, and insert, "But no such provisional appointment of guardians to act with the infant's father shall take effect unless confirmed by the Court upon evidence sufficient in its judgment to prove that the father is unfit to be the sole guardian."—(The Lord Norton.)

LORD FITZGERALD

said, he hoped their Lordships would not accept the Amendment, as it involved an essential inroad on the principle of the Bill, which was based on what was for "the welfare of the infant." The Amendment sought to substitute "the moral unfitness of the father." A dying mother anxious for the welfare of her children would naturally wish to nominate a guardian to act with the father if she knew that the latter was not a fit person to whom alone to intrust the welfare of his offspring. If the Amendment were agreed to, a guardian so nominated would not be able to act unless a Judge should be satisfied that the father was absolutely unfit to fulfil his paternal duties, and this condition precedent might fail to be established in cases where it would yet be of the greatest importance for the welfare of the children that the mother's guardian should be accepted as the father's coadjutor. It might be greatly for the welfare of the infant that the father should not be the sole guardian without imputing to him any moral delinquency.

LORD INCHIQUIN

said, he should support the Amendment. If it were inserted in the clause the principle would be recognized that the father was the person primarily responsible for the welfare of his children, and that he had a right to be their sole guardian unless proved before a Court of competent jurisdiction to be unfitted to exercise the right. If this principle were not established in the Bill, a guardian nominated by the mother would in almost every case be confirmed in his position by the Courts of Law if appeal was made to them, for Judges would be loth to disregard the wishes expressed by a mother on her death-bed. The dual control of father and guardian which the clause contemplated would work well in very few cases indeed.

THE LORD CHANCELLOR

said, that if this sub-section of the clause had been omitted an important class of cases would have been left wholly unprovided for. He was bound to admit that the present Amendment would not have that result; but the reason why it was better to provide for that class of cases in the manner proposed by the clause might be stated very shortly. In the first place, it was not plain how the Court would deal with the word "unfit," and whether it might not lay on the person making the application a burden greater than ought to be done. Secondly, and connected with the same idea, there might be circumstances not of the gross character to which reference had been made, and not necessarily involving moral unfitness on the part of the father, which might make it highly desirable and almost necessary for the welfare of the infant that a guardian should be associated with him. Suppose there was a father not a profligate or drunkard, but impecunious, hiding here and there to avoid his creditors, and unable out of his own means to provide for his children. In the present state of the law with regard to the property of married women that case was much more likely to occur than before. The mother might have to provide out of her own means for the maintenance of the children, and at her death might dispose of those means for that purpose and desire to appoint a guardian to act with the father. He was not at all sure that the Court would say that such a case came under the meaning of the word "unfit." But he was quite sure that the Court would say that it was desirable that the guardian, if a fit and proper person had been appointed by the mother, should in such a case be associated with the father.

THE MARQUESS OF SALISBURY

said, he felt that in discussing this question they were likely to fall into a fallacy if they were to imagine that it was possible in the majority of cases for the guardian to act with the father. He would be appointed against what the father conceived to be his rights, and would be received as an invader in the house. The children would be subjected to what had been called, with reference to political events, "dual control," and to all the evils attributed to that form of government. On every point the two influences would struggle. If there was a question of religion they would have the father teaching Protestanism and the guardian Roman Catholicism, or vice versä, or the father teaching Low Church doctrines and the guardian High Church doctrines, with the effect not that the child would take its choice, but that he would learn to disbelieve both. Again, with regard to morals. One view of life would be presented by the father, another by the guardian, and the child would not adhere to one or the other, but would take the negative result, and treat the question of morals as unimportant. The noble and learned Lord told the House that "unfitness" was a thing very difficult of proof, and, therefore, the father was to be ousted of his rights, not upon proof, but upon suspicion. Then his noble and learned Friend on the Woolsack spoke of the uncertainty of construction to which words would be exposed. That was true. The Court often applied to words a very different construction from what might have been intended by their author. Lord Cairns passed one of the most important measures with respect to real property which had been passed for many years. That measure was brought before the Court in a case which had attracted general attention, and Lord Cairns told him that the decision at which the Court had arrived in that very carefully-drafted Act of Parliament was the reverse of what was intended. When the noble and learned Earl told the House that the interpretation of the word "unfit" would occasion very great difficulty, would not the interpretation of the word "desirable" also be difficult? He was old-fashioned enough to believe that by the law of Nature and the law of God the father was the person who ought to have the care of his child, and that to disestablish the father altogether of his rights and to say that the Judge should act solely with reference to his own view of the welfare of the infant would be to disregard rights held sacred from the beginning of our polity, and resting on far deeper foundations than most of those which we deemed firmly established. He hoped that the Amendment, which had been drawn in a spirit of compromise, would be accepted by the House.

Amendment (by leave of the House) withdrawn.

Amendment moved, In subsection (2.), line 25, to leave out from ("death") to ("infant") in line 26, and insert ("if it be shown to the satisfaction of the court that the father is for any reason unfitted to be the sole guardian of his children.")—(The Lord Inchiquin.)

On question, That the words proposed to be left out stand part of the Bill? Their Lordships divided: —Contents 53; Not-Contents 69: Majority 16.

Clause 5 (Court may make orders as to custody).

EARL BEAUCHAMP

thought that Clause 5 ought to be carefully considered, as it gave the Court an unlimited power respecting the management of children, even in the lifetime of the father. As the clause stood, a quarrelsome or vindictive wife might take proceedings against her husband with respect to the children, and heavy costs might be incurred. How were those costs to be borne? The clause would be productive of much mischief and tend to promote matrimonial differences, unless it were safeguarded as Lord Cairns had proposed to safeguard it. He would, therefore, move as an Amendment the introduction of words limiting the operation of the clause to cases when the husband and wife were separated either by decree of the Court or by deed. Their Lordships had divided on this question last week; but he would take the sense of the House again on the subject.

Moved to insert at beginning of 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 Earl Beauchamp.)

LORD FITZGERALD

said, he objected to the Amendment on principle. It was not necessary that there should be a quarrel between husband and wife for the intervention of the Court to be invoked. There might be reasonable differences of opinion, not inconsistent with amicable relations between the parties, which could only be satisfactorily settled by the Court. The Amendment was not only contrary to the spirit of the law of the Church, but was also against the policy of the law, which did not encourage, and, indeed, for a long time did not recognize, separation of husband and wife; and it was a hard thing to impose as a condition precedent to the grant of relief in such cases to a wife that she should leave her home and children.

LORD BRAMWELL

said, he was surprised at the arguments of his noble and learned Friend. The clause was a mischievous one as it stood. There might be nothing wrong in the husband's conduct; yet, because his wife entertained different views from him as to the bringing up of the children, or had a trifling difference with him, which good sense and good temper would have got over, a permanent quarrel was to be established between them, and the man was to be subjected to the annoyance and expense of legal proceedings. There was no justification for interfering with the present law. No doubt, there were Petitions in favour of this clause; but, as he had often said, it was the discontented who petitioned, and though those who were satisfied with the existing law might be the overwhelming majority, they were not heard of. He had asked the opinion of a learned Judge who had thought and written as much about our laws as any man, and his learned friend said—"If two men ride on one horse one must ride in front." He declared that rather than pass the clause in its present form he would hand over to the mother the whole government of the house and children. He did not intend to say anything uncivil of women, or to suggest that they were particularly prone to mischief; but undoubtedly this clause would give a wife great power of worrying her husband. He might not only have to pay his own costs in proceedings which she instituted, but probably the costs of his wife, for counsel and solicitors were in divorce proceedings regarded as "necessaries," for which the husband was liable. This would really add another to the terrors of matrimony.

LORD BRABOURNE

said, that it was his duty to make an earnest appeal to their Lordships not to accept this Amendment, which those who promoted this measure considered well-nigh fatal to it. Of this the House might be assured, since he (Lord Brabourne) had received many letters and communications to that effect from different parts of the country. He would respectfully entreat their Lordships not to consider the question now before them as if it was one affecting only or principally the class to which they themselves belonged. In that class the clause might, indeed, not be required, and the Amendment might be innocuous. But in the poorer ranks of life such cases as the following sometimes had to his knowledge occurred. A husband would leave his wife either to get work elsewhere, or to go on what was known as "a drunken spree." During his absence the wife supported the children by her hard-won earnings. Then the husband would return, and it was more than doubtful whether the couple could in a legal point of view be held to have been living "separately." As the law now stood, the husband could use the threat of removing the children from the custody of the mother to some place or person disapproved by her, as a means of extorting from her money to squander upon himself. By this clause as it stood, the wife could in such a case apply to the Court for an order as to the custody of the children. The Amendment of the noble Earl would enact that before she could so apply she must separate from her husband. But she might not wish to do this, and might still cherish a hope to reclaim him. He (Lord Brabourne) would leave the two noble and learned Lords who had spoken to discuss the question of costs. To his mind, there was a higher question involved; here was a remedy which it was admitted on all sides that the wife should have, and he protested against its being made a precedent condition that she should separate from her husband. It was all very well to talk of a "dual control;" but all the legislation of late years upon these subjects had been in the direction of elevating the status of the woman, and giving her some share in the direction of her children and household; and having presented many Petitions from wives and mothers who took a deep interest in this question, on their behalf and in their names he earnestly asked the House to reject the Amendment.

On Question? Their Lordships divided:—Contents 35; Not-Contents 69: Majority 34.

LORD DENMAN,

in moving, as an Amendment, after Clause 5, to insert the following new clause:— In case of the conduct of any father making it wrong for him to have the custody of his infant children or child, and if his wife, their mother, should have a separate household, she, by the order of the Probate and Divorce Court or other court of the High Court of Justice, or of the nearest county court, shall have all the rights which other householders possess, or may in future possess, at every election of Members of Parliament and at all other elections, said, he could not expect their Lordships to admit a disfranchising clause in the Bill; but as on December 4, 1884, he alluded to the case of "The King v. Greenhill," 1836, referred to by his lamented Predecessor on July 28, 1839, he wished to show that some married women ought to have votes.

Amendment negatived.

On the Motion of The Lord FITZGERALD, the following new Clause was inserted:— In England and Ireland the High Court of Justice, in any division thereof, and in Scotland either division of the Court of Session, may, in their discretion, on being satisfied that it is for the welfare of the infant, remove from his office any testamentary guardian, or any guardian appointed or acting by virtue of this Act, and may also, if they shall deem it to be for the welfare of the infant, appoint another guardian in place of the guardian so removed.

Amendment moved, After Clause 10, to insert as a new clause— ("Nothing in this Act shall prejudice the sole authority of the father, as now recognized by law, in the matter of the religious education of his children.")—(The Lord Braye.)

LORD FITZGERALD

said, he hoped the noble Lord would not press the Amendment, as he thought it would be introducing into the measure a dangerous element. It was a well-settled principle, and he hoped it would not be shaken, that the children should be brought up in the religion of their father. There was nothing at all in the Bill to derogate from that, and he thought the Amendment entirely unnecessary.

LORD STANLEY OF ALDERLEY

said, if the framers of the Bill had no intention of altering the existing state of the law, why should they hesitate to affirm it by this Amendment? The tendency of the Bill appeared to be of an opposite nature, and to leave it to a County Court to decide what was most for the welfare of a child; and this might include the religious bringing up of a child.

On Question? Their Lordships divided—Contents 7; Not-Contents 56: Majority 49.

Clause disagreed to.

Motion, "That the Bill do pass,"agreed to; Bill passed accordingly, and sent to the Commons.