SECOND READING. (Hansard, 17 May 1886)

§ THE LORD CHANCELLOR (Lord HERSCHELL)
, in moving that the Bill be read a second time, said, that a measure having for its object the amendment of the law relating to the guardianship of 1147 infants passed the House of Commons early in the Session of 1884, and came up to their Lordships' House towards the close of that Session. On the suggestion of Lord Cairns, whose loss he deplored very much, and who, he believed, would have been a supporter of the measure, it was considered too late to deal with it that Session, and on that ground the Bill was not proceeded with. In the Autumn Session of that year the Bill was again introduced by his noble Friend on his right, received a second reading, and was referred to a Select Committee. On that Select Committee were his noble and learned Friend (the Earl of Selborne), Lord Cairns, his noble Friend on his right, and other noble Lords. In the result the measure came back in a considerably modified form, and met in the House with other modifications. The Bill passed their Lordships' House, and was sent down to the House of Commons, where it received a second reading; but it was not read a third time, owing to the Prorogation. That Bill was, with one substantial exception, precisely the same as the Bill now before their Lordships. He would not argue on the justice of such a measure, except to say that, in a matter in which many of the women of this country took the deepest interest, a Parliament of men returned entirely by male electors should take care that no injustice was done to women. Even if they introduced a modification of the franchise, men would still form the vast majority of the electorate, and so long as they had the power in their hands they were bound to try to look at the question as women looked at it. They should look at the nature of the case, and dispose of it as justice demanded. The Petitions which had been presented, and which were not the work of any organization, but had come spontaneously from different parts of the country, showed that there was a deep and real feeling in favour of the Bill, and the letters he had received confirmed that view. The provisions of the Bill might be summed up chiefly as three. It was proposed that where the husband had not appointed a guardian to his children the wife became the guardian, and even where the husband had appointed a guardian that the wife became guardian jointly with the person so appointed. The Bill retained to the full the superior right of the father while 1148 living; but when the father was dead he was not considered just that the right which he possessed while living could [...]ought to be handed over by will to other, so as to make the mother [...] stranger to the children. It was considered only right that the mother, to whose care the children owed so much in early years, should have a voice in the guardianship. The Bill then provided for another case. If the mother by will had chosen to appoint a provisional guardian on her death, if it could be shown to the Court that the father was not fit to be the sole guardian of the children, the guardian so appointed by the mother might be allowed to act jointly with the father, or as the Court ordered. That would not deprive a father who was fit to be the sole guardian of his right. There were many cases in which, though extreme unfitness could not be shown, yet it would be possible to show that the father was not fit to remain sole guardian of his children. In extreme cases of bad morals or indecency the Court had power to prevent a father acting as guardian of his children, and that power would remain. Then there was a provision to enable the Court, upon the application of the mother, to permit access to the children and to give instructions as to their custody. The Court was to have regard to the welfare of the infants, to the conduct of the parents, and to the wishes of the mother as well as the father, and such instructions might be varied or discharged from time to time as the Court might think fit. The only new provision was to the effect that in any case where a decree of judicial separation or divorce had been pronounced the Court might declare the parent whose conduct had been the cause unfit to have the custody of the children; and in such a case the parent so deprived would not be entitled on the death of the other to the care or custody of the children.

§ LORD BRAMWELL
said, that no provision was made in the Bill for costs of proceedings, though, as they all knew, there were such things as vexatious applications. As the law now stood, if the wife sued for divorce or separation, her husband was liable for the costs of her 1149 solicitor. He did not know whether that would be so in a case under this Bill. He thought it would be desirable that such provision should be made as to costs. It might prevent vexatious applications against the husband.

§ LORD ASHBOURNE
said, he was glad to be able to support the second reading of the Bill, as he thought that in its present shape it was very much improved. He thought, however, that it would require to be closely and carefully examined in the Committee stage. He referred chiefly to Clause 2, which was almost the principal clause in the Bill, and which seemed to be an absolute statement that no matter what her condition or her conduct the wife was to be the guardian of the children.

§ LORD HALSBURY
said, he would urge that there should be proper safeguards in the Bill to insure the fitness of the guardian appointed by the mother.

§ EARL BEAUCHAMP
was glad that Clause 7, refused last year, had been introduced into the present Bill; but he thought that the powerful reasons which induced the promoters of the Bill to restrict the sole guardianship of the mother in that clause were also applicable in restraint of the power of appointment given in the first paragraph of Clause 3.

§ THE LORD CHANCELLOR
said, he thought the point raised by his noble and learned Friend near him (Lord Ashbourne) was really met by the provision in Clause 6, by which the Court might not only remove a testamentary guardian, but any guardian under this Bill, wherever it would be deemed to be to the welfare of the infant. As to the suggestion of his noble and learned Friend on his right, he could only say that he would carefully consider the matter.