Lords Sitting of 5 June 1890

DE WAHULL BARONY.
Petition of Constantia Elizabeth Chetwood-Aiker, of Stoke Bishop, in the County of Gloucester, widow, as heir lineal and representative of Sir Richard Chetwood, the claimant to the title in the time of Her Majesty's predecessor, King James the First, and also of the several persons her ancestors who received the accustomed summonses to Parliaments, to Her Majesty, praying Her Majesty to be graciously pleased, on sufficient proof of the petitioner's right and descent being made, to admit her succession, and to declare that she is of right entitled to bear the title, honour, and dignity of Baroness de Wahull in the Peerage of England, with succession to her heirs general, and also to assign to that title, honour, and dignity such precedence as Her Majesty may be graciously pleased to declare, or that Her Majesty might be graciously pleased to make such other order or to give such directions in the premises as to Her Majesty might seem meet, together with Her Majesty's reference thereof to this House and the report of the Attorney General thereon thereunto annexed: Presented (by command), read, and referred to the Committee for Privileges to consider and report.
The Lord Reay—Took the Oath.

SAT FIRST.
The Earl of Craven, after the death of his father.
MERCHANT SHIPPING ACTS AMENDMENT BILL.—(No. 57.)
Returned from the Commons with the Amendments agreed to.
BUSINESS OF THE HOUSE.
Standing Orders Nos. XXXIX. and XLV. considered (according to Order) and dispensed with for this day's sitting.
CUSTODY OF CHILDREN BILL.

  (No. 98.) SECOND READING.
  Order of the Day for the Second Reading, read.
  THE LORD CHANCELLOR: My Lords, this Bill consists of but a single clause, and I do not think anyone who takes an interest in the subject will say that it goes too far. It provides that where the parent or guardian of a child

  3
  applies to the High Court, or the Court of Session, for a writ or order for the production of the child, and the Court is of opinion that the parent or guardian has so conducted himself that the Court should refuse to enforce his right to the custody of the child, the Court may, in its discretion, decline to issue the writ or make the order. Tour Lordships will remember that when my noble Friend the Earl of Meath introduced a Bill on the subject I considered it was my duty to point out certain objections to it, and that Bill was ultimately withdrawn. Another Bill has been introduced by my noble Friend, which I must say seems to mo to be free in a great measure from those objections; but I am not at all certain that even in its present form there may not be objections to some of its clauses. I believe great mischief has been done, and is constantly being done, by persons being permitted to exercise the important functions of parents very much to the injury of their children; but, at the same time, while recognising that a measure of this kind is desirable, it is necessary to be careful not to go too far in the direction of substituting other control for that of parents, or cutting down or in any way seriously affecting parental rights. One may very readily be tempted to go much too far when influenced by feelings such as are not unnaturally raised by incidents of the kind we have heard of. I am sorry to say that many other such instances have since been called to my attention. Still, when I ask your Lordships to read this Bill a second time, I do not propose to make it in any way a rival to the Bill which my noble Friend has upon the Paper, and which, I understand, he intends to bring forward. On the contrary, I would suggest that both Bills should be referred to the same Committee; and, if with proper security for preserving parental rights, additional security can be given in the interests of the children, I should be very glad indeed to concur with the noble Lord as to some form in which such additional protection can be given. At the same time, I think we are all agreed that the subject is one which demands legislation, and the Bill which I now propose is for the purpose of giving additional security to children by giving further powers to the Courts,
  4
  which, except in certain instances, have not thought themselves authorised to withhold children from their parents' custody. I think it may be very fitly discussed in Committee, and I will only now ask your Lordships to read the Bill a second time.
  Moved, "That the Bill be now read 2a.—(The Lord Chancellor.)
  LORD THRING: The noble and learned Lord on the Woolsack has given so much encouragement to the Bill which stands in the name of my noble Friend Lord Meath, that I will make very few observations upon this measure. The Bill which the noble and learned Lord proposes adds, in my judgment, and, I think, also in your Lordships' judgment, very little to the existing powers of the law. What is really required is that poor children should have the same benefit before the law as the children of the rich possess at present. It has, I believe, been decided by the Court of Chancery that a parent who has misconducted himself cannot demand to have the custody of his children given back to him. Again, it has been decided that a parent who misconducts himself can have his children taken away from him. That was done in the famous Shelley case. The Court of Chancery, therefore, protects rich children when parents who have misconducted themselves want to resume the custody of their children, and it also takes away from them that custody when, in the judgment of the Court, they do not deserve to have it. Then there was also the case, to which I pray the attention of the Lord Chancellor, of "Lyon v. Blakey," in which, I think, Lord Eldon decided that an aunt who had brought up two or three young ladies, and intended to provide for them, should retain the control of them he refused to give back those children to the custody of the father, on the ground that the father had really and truly relinquished their custody. Those are suggestions which I trust the noble and learned Lord will see are desired to be embodied in Lord Meath's Bill, or in some other measure which may be approved of in Committee. The proposition is that where a father in poor circumstances practically relinquishes the custody of his children by acquiescing

  5
  in their being brought up by somebody else, the children of a poor person should have the same protection as the Court of Chancery would give in the case of children of richer parents. Then with regard to the question of the father's misconduct, the noble and learned Lord is, of course, quite aware that it is utterly impossible to prove misconduct is many cases, for the simple reason that the child has been picked up as a waif and taken charge of, or else the child may have been handed over by a father or mother who has disappeared. Such parents will sometimes go away for years, and my noble Friend will, I believe, be able to give numerous examples where that has occurred. They then return at the critical moment of the child's existence, and demand that he shall be handed over to them, if a girl, for the vilest purposes, and if a boy, for the purpose of getting the benefit of his labour. I think those propositions, therefore, should be embodied in some formal way, so as to provide that where a parent relinquishes the custody of his child, he should, before he is allowed to resume possession of it, be obliged first of all to show that he deserves to have the custody by paying such a sum as the Court shall think tit and proper to the foster parent for its maintenance; but, above all, if he relinquishes the custody of his child, he should be called upon to prove that he is worthy to have the child given back to him, that he is able to properly maintain and educate it, and that it would be more for the child's benefit that it should go back to the father than that it should remain with the foster parent. I quite agree with what the noble and learned Lord has said with respect to the absolute right which the parent has at Common Law, but I would submit to your Lordships that the real consideration is what is for the benefit of the child, not what is for the benefit of the parent in this matter. In considering what is best to be done, we must consider what is best in the interests of the children, and this appears to me to be one of the most urgent matters which your Lordships can have to consider. I believe there is no cruelty equal to the cruelty, in many cases, of rending poor children from their foster parents, and handing them back to their natural guardians.
  LORD EMLY: My Lords, I, of course, entirely agree with what my noble and learned Friend has just said, and with what the Lord Chancellor has said with regard to the importance of legislating upon this subject; but I would venture to suggest to my noble Friend that without some important Amendments very injurious effects may be produced by a measure of this kind. It might be used for very dangerous purposes. Take the case—a very common one—of a wretched, half-starving mother, who, stifling her conscience, sells her child to a proselytising society. In a little time her conscience pricks her, and, stung by compunction, she tries to recover him. If she had so conducted herself that the Court did not think her fit to have his custody, although some other institution conducted on the principles of her own religion might be ready to take charge of him, she is under this Bill to be refused redress, and unless she can show that she is herself a proper person to have the custody of the child she could not get him away. I submit to your Lordships that, if I am correct in my interpretation, some Amendment should be made to meet the difficulty which at present might arise. Because, observe what happens. The law would be giving its sanction to the making of an immoral contract. I am sure that every one of your Lordships will agree with me that to induce persons by bribery to violate their consciences, whatever religion they may belong to, or whatever religious views they may hold, is to strike at the very foundation of natural morality, and any measure which would lead to that result your Lordships would, I am sure, be unwilling to pass. But I will now take a stronger case. Take the case of a child whose father is dead. By the law that child is bound to be brought up in the father's religion; but by this Bill, if unamended, should there be misconduct on the part of the mother surviving, the Court would have to decide that the child should be placed in an institution where a religion totally different from that of the father was taught. I, of course, entirely acquit the noble and learned Lord of any intention to give a charter to proselytism, but I submit to him that in those particulars the Bill requires amendment. I have no doubt that he will be far better able than I to

  7
  suggest some way of meeting these difficulties. It appears to me there are two very obvious ways of doing it. One would be that the Bill shall only apply to the case of recognised and legal institutions; and the other that the Court shall have power, in cases where it thought fit not to order the child to be returned to the parent, to place him in an institution in which, having reference to the religion of the parent, it would be proper he should be placed. I will venture to make one other observation, and that is that among those Amendments I trust there will be one requiring that in all cases the alleged misconduct of parents or guardians, or their competency to have charge of the child, should always be inquired into in open Court.
  THE BISHOP OF CARLISLE: My Lords, before this Bill is read a second time I desire to say a few words on the general subject. If I may be permitted to say so, I approve of the Second Reading, and I am glad the noble and learned Lord on the Woolsack has stated that there is really no intention of offering opposition to the other Bill which is to be brought before us by the noble Earl on the other side of the House. I will express no opinion on the Bill which has been presented by the noble and learned Lord on the Woolsack, but I would venture to say that if we pass that alone we shall only have touched the fringe of a very important subject. The Bill that is to come on afterwards has been aptly described as one for the better "protection of children," while that presented by the noble and learned Lord has reference only to the "custody of children." That is, no doubt, a very important matter; but looking at the subject from the noble Lord's point of view, the consideration of what is best for the children themselves rather than what are the legal rights of parents, is the most wholesome point of view from which to regard it. Cases of this kind have been brought under my notice. A boy has, for instance, been put into a public institution, and has been there taken great care of. The father and mother are, I will not say extremely depraved persons, but extremely careless persons, in whosehouse the child would get no good and they very rightly acquiesce in the provision that has been made for
  8
  him he remains there for a certain time, and then when the parents find that he has been taught to read and write—better taught than they had any right to expect—they make the base calculation that they can turn the boy to good account, and they go to the institution and apply to have the boy given up to them in order that they may make use of him for purposes of mendicity of various kinds. It is clear that to give way and recognise the legal right of parents of that kind would be really to sacrifice the best interests of the children; and that if you could only look to the best interests of children you would refuse to hand them over to such parents, and would continue the child at the institution in which the parents had assented to its being placed. That is the kind of case which presses upon my mind, and that is the kind of case which it appears to me will be met by the Bill of my noble Friend opposite. While I do not doubt the wisdom of the Bill of the noble and learned Lord on the Woolsack, I do supremely rejoice that it is not to go by itself before the Committee, but that it will probably go pari passu with the other Bill. I hope they will be considered by the same Committee so that we may have the benefit of both these Bills.
  THE LORD CHANCELLOR: I would propose that this Bill be committed to the General Committee. Although it does touch upon questions of law it deals with the general subject, and may, therefore, very well be dealt with by the Committee.
  On Question, agreed to.
  Bill read 2a (according to order), and committed to the Standing Committee for General Bills.

COURT OF CHANCERY OF LANCASTER BILL.—(No. 93.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE LORD CHANCELLOR: My Lords, this Bill is, I believe, identical in most of its provisions with a Bill which was proposed by the noble Lord opposite in 1883. It is practically to give greater facilities for the performance of the work of the Court of

  9
  Chancery in the County Palatine. The matter to Liverpool, Manchester, and, indeed, the whole of Lancashire is, of course, extremely important. There are a great number of places in regard to which it is very desirable to give facilities for the trial of cases in the County Palatine, and it is the object of this Bill to remove the difficulties at present standing in the way. My Lords, I have stated the substance of the Bill, and I move that it be read a second time.
  Bill read 2a (according to order), and committed to the Standing Committee for Bills relating to Law, &c.

OFFENCES COMMITTED ABROAD BILL.—(No. 94.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE LORD CHANCELLOR: My Lords, this is a Bill which, for many reasons, has been proved to be urgently needed. One very important feature of the Bill is this: Where persons are guilty of an offence by reason of receiving goods known to be stolen, that offence is known in this country as felony. There is no such thing in other countries as felony; and the result is that where the offence has been committed abroad which would constitute a felony if done in this country, it is not felony, having taken place abroad. Therefore, the receiving of goods knowing them to have been stolen is one which cannot, in proper language, be so described if the goods have been received knowing them to have been stolen abroad. That is one of the classes of offences with which the Bill proposes to deal, and I believe it will be found to be one which can best be made effective by discussion in Committee, in order to see whether the proper technical phraseology is adopted. I hope that will be done in Committee in a way which will enable your Lordships to see that the Bill deals effectually with a matter which is of importance.
  Moved, "That the Bill be now read 2a."—(The Lord Chancellor.)
  LORD THRING: My Lords, this Bill is a most important one, and it will, in almost every sentence and line of it,
  10
  require severe scrutiny. I only trust that the noble and learned Lord, in pity for the limited intelligence bestowed on the human mind, will have a Memorandum prepared regarding it for presentation to the Committee. This Bill affects many statutes, including the Fugitive Offenders' Act, and the Acts referring to jurisdiction abroad. I would submit to the noble and learned Lord that without some Memorandum or summary of the Acts to which it relates, it would hardly be possible for any Committee to grope through its mazes. I would also suggest, with great respect to the noble and learned Lord on the Woolsack, that Section 4 of the Bill should be re-drawn, for, as it stands at present, I defy any human intelligence to understand its meaning.
  LORD HERSCHELL: My Lords, the noble and learned Lord on the Woolsack, in giving an account of the scope of his Bill, has dealt with only a very small portion of it. The provision of which he spoke is one of a very desirable character, and I should imagine that nobody could seriously object to it. It makes a change in the law which, in my opinion, is very necessary, because the law in that respect has always seemed to me to be somewhat absurd. But the Bill is of a wider scope than would have appeared from the speech of my noble and learned Friend, because it deals very largely with the power of arrest and trial of persons who commit offences out of Her Majesty's dominions, and not within the realm of any civilised State; and it provides practically for their trial in any part of Her Majesty's dominions. Very largo powers of arrest are given, and they may be exercised not only by British, but by foreign officials. It seems to me that those provisions require the very closest scrutiny, because I can conceive various cases arising which, under the Bill as it now stands, would be likely to create considerable diplomatic difficulties with Foreign Powers. The arrest of a person by the authority of the Government of a country outside its own dominions must obviously always be a matter of very considerable delicacy. We should be effecting that arrest in a place where our laws do not prevail and where Her Majesty's Government and officials have no authority; and the power that is given here to authorise the arrest under

  11
  such circumstances, not only by British officials but by foreign officials, of any person accused of a crime of this character might, it seems to me, give rise to difficulties of a very serious character; because, of course, a person being accused (at least I presume so) of a crime as mentioned in the 5th section, 1st sub-section, for which he can be tried under this Act, means accused by any person who may choose to make such accusation; it cannot mean accused in any official or authoritative manner, because no official authority exists in the place where the crime is suppossd to have been committed. But one can conceive that, under such circumstances, the question of a crime committed by a person found outside Her Majesty's dominions which would lead to his arrest by an officer of a Foreign State might obviously give rise to some very awkward questions indeed. I am not calling attention to these matters in any spirit of hostility to the Bill. I can quite understand the difficulties which arise when British subjects commit offences outside the territory of any civilised Power, and I entirely sympathise with the desire expressed of bringing them to justice, the more especially as they very often do great mischief to the country of which they are unworthy subjects. But I mention those matters for the purpose of calling attention to the important character of the Bill and the extreme care and attention which will have to be devoted to the consideration of all its details, as well as the close scrutiny which will be necessary into the effect of its provisions before it can be allowed to pass into law.
  THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY): I am sure your Lordships will sympathise with the noble Lord who has just sat down when he says that a Bill of this kind needs careful scrutiny. No doubt some of its provisions are, to a certain extent, novel, and deal with very difficult subjects, but I think they deal with a growing evil. If we had only to deal with countries with which we are able to conclude Extradition Treaties—with civilised countries of that character where we could use sufficient influence—there would be less difficulty and less need for a Bill of this kind; but the
  12
  House is well aware that in recent times a new sort of dominion has been slowly growing which is expressed in a great variety of ways. Sometimes it is called a Protectorate, sometimes a sphere of influence, sometimes a region in which another Power has interests, and so on; but without some authority of this kind there is no doubt that persons of unruly spirits, who are to be found on the outskirts of civilisation, may do a great deal of mischief and cause a great deal of trouble, and there may be no means of bringing them to justice. That is, I think, the motive which has induced the production of this clause. I quite admit the great difficulties which attend the question: but I want to press upon the noble and learned Lord and upon the noble Lord behind me that they are not difficulties of our seeking; they are not difficulties even which have arisen from previous complications; but they are difficulties, which have arisen out of the curious conditions of International relations which: have from time to time grown up. The point in which I am—I will not say most interested, but which interests me very much—is the trial of British subjects in: this country for offences committed abroad. With most civilised States we have Extradition Treaties, and most of them allow us to extradite our own subjects to be tried for offences committed abroad. On the surface that seems a reasonable arrangement; but when you; come practically to work it, you are asked to send your own subjects for trial to a place where you cannot reasonably have any conviction that the trial will be conducted according to any principle which, in this country, we have been accustomed to consider inseparable from justice. It would be invidious to suggest instances where such differences exist; but in some there is a great delay in dealing with prisoners, and in others great corruption is found, considerations which make it very desirable that we should, as far as possible, try our own subjects in this, country for any crimes they may have committed abroad.
  THE LORD CHANCELLOR: I must apologise to your Lordships for having referred in a somewhat perfunctory manner to the provisions of the Bill, but I thought its details would be best dealt with in Committee. That was the

  13
  reason why I made but short reference to it. I gave one example only of some of the difficulties which might arise when you are dealing with questions involving the consideration of foreign law, but I quite agree with my noble and learned Friend that it is a matter which must be very carefully looked into in Committee. For that reason it appeared to me there was no great necessity for any considerable amount of explanation at this stage. I would suggest that the Bill should be referred to the Grand Committee on Law.
  Bill read 2a (according to order), and committed to the Standing Committee for Bills relating to Law, &c.

PROTECTION OF CHILDREN BILL.— (No. 68.)

  SECOND READING.
  Order of the Day for the Second Reading, read.
  THE EARL OF MEATH: My Lords, I desire, in the first place, to return my thanks to the noble and learned Lord on the Woolsack for having brought forward a Bill dealing with the custody of children, and that having found it necessary on a former occasion to oppose the Bill which I brought forward for the adoption of children, he had the frankness to acknowledge that there were grievances to be redressed. Quite unexpectedly by me he has responded to the appeal which I made to him upon that occasion that he should bring forward, on the part of the Government, some measure which would protect the children. I therefore return him my most sincere thanks for having done so; and I have also to thank him for having permitted me to bring forward a second time this Bill for the Protection of Children. It would have been quite in his power to prevent this Bill being brought forward; he has not only done that, but he has informed your Lordships as I understand that he will allow it to be read a second time and referred to the Committee before which his own measure will go. I hope some legislation may result therefrom, which will remove these poor children from the risk of ill-treatment and the sufferings which they undergo when, after, perhaps, many years of kind attention and care, they are claimed by brutal and unworthy
  14
  parents who demand as a legal right that the children shall be handed over to them. The Bill which I ask your Lordships now to read a second time has been framed with the view of avoiding the contentious subject of adoption, and yet, at the same time, of protecting from the abuse of parental authority children over whom their parents have relinquished control. Your Lordships will notice that all those contentious questions have been avoided which raised debate upon the occasion of my former Bill being presented. I then produced some 30 cases in which children had been taken away from happy homes by their parents, just at the age when they could be made of use to them, regardless of the children's interests, and I showed that in a great number of those cases the children had relapsed into misery and crime. Since that time I have received a number of letters from persons who are interested in this question, and there are one or two of the cases mentioned there to which, if your Lordships will allow me, I will call attention. There was a case which has been brought to my notice in which a child was taken into a home and supported for several years. The mother died of a broken heart from the cruel treatment of her husband he was a hopeless drunkard, and, though he had been well-educated, and was formerly in a good position, he had lost every thing through drink, and was, in fact, living on the charity of his neighbours. When the child, a girl, was seven years old, the father came to the home to remove her.
  "I found," says the lady who writes to me, "that the father had several people outside; having taken legal advice, I found that we could not resist the father's claim, and that we could not prevent him exercising his rights, though he had no lodgings to which he could lake the child, and that she would he exposed to all kinds of evil, religious and moral."
  That is a case, my Lords, which I point out as a very good example of the instances which have been sent me. There is one more, however, to which I will refer. A man was sentenced to five years' penal servitude for burglary. His two infants were taken into the home. The wife was also a drunkard and was convicted of crime. When they were released from prison their first act was

  15
  to demand their children, both of whom were almost dead of starvation when they were admitted. Those who had taken care of and maintained the children had no power to keep them, however wicked or depraved the parents were, and they had to be given up. There are a number of such cases, but I am not going to inflict them upon your Lordships. I think I have read enough in conjunction with the cases I read on the previous occasion to show that there is really a necessity for some legislation of this character. In fact, it was acknowledged by all the noble Lords who spoke upon the last occasion, and it is generally admitted that there is great need for legislation which does not improperly interfere with the exercise of parental authority, to prevent cases of hardship and of injury to children where they have been deserted and brought up by persons other than their parents. The Bill is intended to prevent the abuse of parental authority, and it is a very short one. By the 1st section it provides that where a parent has relinquished his control over his child, and such child has been maintained by others out of private funds in a proper manner, the parent shall not be entitled to resume the custody or control of such child until he has repaid to such person or persons all costs properly incurred by such person or persons in bringing up such child. The parent, however, though he may be willing to repay the costs incurred in bringing up the child, shall not be entitled to resume custody of it unless the Court shall be of opinion that it is for the child's benefit he should do so. The Bill, however, gives power to the Court before which the case comes to waive such repayments in such cases as it may think fit. As has been said by the noble and learned Lord behind me, I think there can be no question but that in these days public opinion and feeling is more acute than in former times with regard to the way in which children are treated, and in accordance with that general feeling I do not think it is right that the law should consider the benefit of the children as subordinate to the interests of the parents. By Section 2, a foster parent may be similarly protected in reference to payments by Poor Law Guardians. Section 3 simply gives a definition of the
  16
  meaning of the words "parent" and "child." Then Section 4 provides that—
  "For the purposes of this Act a parent shall be deemed to have relinquished the control of his child if tie has abandoned or deserted his child; or has been guilty of such misconduct as would, according to the law for the time being- in force as administered by a Court of Equity, disentitle him to the custody of his child; or if he, knowing that his child is being brought up by a foster parent, has not taken any proceedings to resume the custody of such child for so long a time or under such circumstances as, in the opinion of the Court having cognisance of the case, to indicate that the parent has acquiesced in the bringing up of such child by the foster parent."
  If I might be permitted at this stage, as I did not speak on the occasion of the Lord Chancellor's Bill being brought forward, I would ask a question which I think the noble and learned Lord might desire to answer, and that is, What is the actual law on the subject at present? Speaking as a layman, I cannot find out what the law actually is upon which Magistrates act at present. It appears that when children are claimed by parents under these circumstances the Magistrates either refuse to interfere altogether or they grant a summons, and the child is obliged to be handed back to the parents. In the Bill which has been laid upon the Table of your Lordships' House only those cases are mentioned where the matter has been brought to the cognisance of the High Court; but, as far as I can make out, such matters are not brought to the cognisance of the High Court at all. I should like, as a layman, to know what would be the course which persons having the custody of a child should take if they thought they were justified, under the Bill of the noble and learned Lord, in retaining the child. Of late years, my Lords, much attention has been drawn to this subject, and it is being more and more recognised that the interests of the child ought to be regarded as paramount where they clash with the old Common Law rights of the parent. By my Bill all complications from changes in the law by the transference of authority to persons other than parents, or in regard to the law of devolution of property, are avoided. There can be no fear of its encouraging or permitting the sale of children, or of proselytising, as the parents can always, on paying the costs which have been

  17
  incurred, resume possession or control of children, and even if they are too poor to pay those costs, the Court can give possession of the children without payment, if it considers it would be right from any cause that the parents should resume possession of the children. I hope your Lordships will permit this Bill to be read a second time, and that you will think it right that it should be referred to the same Committee to which the noble and learned Lord's Bill has been referred, in order that the two measures may be considered together. There is, in my opinion, no question that the handing back of these children to their parents is, as a general rule, very adverse to the interests of children themselves. A gentleman who has for years been at the head of an institution for the reception of lads reclaimed from the streets writes to me that he has gone through the brief history of the boys who have been received into that institution for the last two and a half years, and he finds that of the whole number about one in eight has been injured by the parents coming and claiming them as soon as the boys have been taught a little, and are able to be employed as errand boys; so that in about 12.5 of the cases in which their funds and labours have been expended in the work of rescuing such children from ruin their efforts have been thrown away. A lady who has the care of girls writes to me in a similar way. She says that the proportion of relapses into crime among children when returned to their parents equals 16.9 per cent., as against 6 in the cases where they have not been returned to their parents; and that in the Felton School 23 per cent, of the children returned to their parents are re-convicted, as against 5 per cent, of those who are otherwise provided for. I will not detain your Lordships any further. The discussion upon this subject has practically been going on now for some time, and I think, therefore, your Lordships are all more or less in possession of the facts of the case. I only ask your Lordships to permit the Bill to be read a second time, and to refer it to the same Committee as that which will consider the Bill of the noble and learned Lord on the Woolsack.
  Moved, "That the Bill be now read 2a."
  LORD HERSCHELL: My Lords, I should desire to make a few observations to the House upon this Bill, and particularly with reference to its bearing upon the Bill of my noble and learned Friend on the Woolsack, which has been read a second time. I am very glad they are both to go to the Standing Committee, because I cannot help feeling that some measure of protection for children is necessary beyond that which would be afforded by the provisions contained in my noble and learned Friend's Bill. It would be necessary, in order to prevent the parent obtaining possession of his child under the measure proposed by my noble and learned Friend, for the person seeking to withhold the child from its parent to prove that such parent had been guilty of some misconduct, and that he or she was unfit to have the care and custody of the child. Now it is, of course, obvious that the difficulty of bringing forward such proof would often be immense, and in many cases it might be impossible to bring forward evidence to support such an allegation. I do not think where a parent has relinquished the control of his child to others who have cared for it, brought it up, and expended money upon it, that he can reasonably be allowed to assert a right to resume possession of his child without first restoring to those persons the money they have so expended. But I do not think it would do to make that a condition absolute in all cases, because there may be cases where a parent can prove that he is perfectly fit to have the possession of his child, that he can afford to properly maintain it, and that he can provide for it a happy home, that he is not in any way to blame, and that his circumstances are such that it would be absolutely debarring him of the custody of his child altogether if he were compelled to pay those expenses before the child could be handed over to him. Therefore, I think my noble and learned Friend has wisely left to the Court the determination of the question whether the parent should first be compelled to pay the whole, or some portion, or none at all, of those expenses, at the same time enabling the Court, if it should think fit to do so, to enforce payment of those expenses before the child is delivered up. That would, of course, throw upon the parent the onus of showing

  19
  that he was fit to be allowed to take back the child, and that the child's interests could be safely entrusted to him. It seems to me there is all the difference in the world between that onus being thrown upon the parent and casting upon the person who has taken care of the child and brought it up the burden of proving that the parent has disentitled himself to the custody. I quite agree in what has been said by a noble Lord that there has hitherto been too great a regard for what is called the sanctity of the parental authority, even after parents have violated every duty which they can owe to the children to whom they have given birth. It seems to me there has been too little regard paid to the interests and welfare of the children. It is certainly terrible to reflect how often it has been the case, and may be still, that a child who has found the lack of parental care supplied by those who have taken the place of real parents to it, who have done for the child, land well done for it, all that parents ought to do for a child, has been torn from those foster-parents at a time when it has learned to love them and feel grateful to them, as to those to whom alone its gratitude is due, to be handed over to parents in name only, who can afford it no proper education or maintenance, and who have shown themselves—himself, or herself—utterly unfit to train it for its future life. I agree, at the same time, that we are not lightly to regard the relation of parent and child, and that we ought not lightly to set aside the right which the parent has hitherto had in law to the custody of his child. But it appears to me that that right is fully guarded in the Bill which my noble and learned Friend has proposed, because the provisions of the Bill are only to operate where the parent has relinquished the control over his child, to other persons who have brought it up. The parent is only in that case to be regarded as having abandoned or deserted it. Surely if a parent has abandoned or deserted his child, and left the duty of its care to others, it is only reasonable that the Court should have power to require him to repay what those others had spent, and to inquire whether it would be good for the child to remain where it is rather than that it should go
  20
  back to the parent who has deserted it. With regard to the question of misconduct, the Court of Equity will interfere with the exercise of the parental right to custody in proper cases and upon sufficient evidence, and this Bill would apply that principle equally in cases of the kind I have been describing. Another category to which the observation might be applied is that class of cases where the parent knowing that the child is being so brought up has refrained for so long a time from making application for the custody of his child that he may be taken to have really acquiesced in its being so brought up. In none of the cases is the barrier to the parents resuming the custody made absolute, but the matter is left in the discretion of the Court, which must be satisfied that it will be for the child's interest before the parent can be permitted to resume possession of it. I submit to your Lordships that that is a provision which is eminently reasonable. With regard to the observations which have been made by Lord Emly, I certainly should feel very much regret if any measure of this kind should be taken advantage of for the purposes of proselytising in reference to the children, and I do not think there would be any real difficulty in providing against it, if it were thought to be at all possible. Where the parent himself or herself is shown to be unfit to have the custody of the child, I think if it was proved to the satisfaction of the Court that a child was being brought up in an institution where the religious teaching was other than that its parents accepted, and that there was some other institution the religious teaching in which was in accordance with their views, and where the child would be equally well-cared for, there could be no objection to giving power to the Court to transfer the child from one institution to the other. But that is a matter which would require consideration. There seems to me to be no insuperable difficulty in striking against the danger which the noble Lord has suggested. I trust that the result of the consideration of these two measures combined may be one measure which will afford better protection to children, and secure them against many of the hardships they have now to undergo.
  EARL PERCY: I am sure your Lordships will agree with the last remark of the noble and learned Lord Lord Herschell in hoping that the issue of sending these two Bills to the same Committee may be the production of a measure which will strengthen the hands of the law in dealing with the very hard cases which have been referred to. To my non-legal mind this seems a matter of the greatest difficulty to deal with. We all seem to know generally what we want; but if we can judge from the measures which have been successively laid before us we do not quite see how to meet the requirements of the case. The first Bill on the subject which my noble Friend Lord Meath presented to your Lordships' House was generally understood to go too far. The noble Lord has now presented another Bill which we have before ns. That measure was stopped in its progress by the notice which the noble and learned Lord gave that he proposed to bring forward a measure on behalf of the Government. I presume from the fact of that measure having been brought forward that the Government is of opinion that Lord Meath's Bill is not absolutely necessary, and that, at any rate, the provisions which it embodies are not altogether needed, because otherwise the Government measure would have been more exhaustive. But, my Lords, if it be the case that we require some further legislation than that embodied in the Lord Chancellor's Bill, I do not doubt that it would be of great importance if, before we go into Committee, the noble and learned Lord and the noble Lord who has introduced this Bill would consider what the best means would be of meeting the difficulties which have been mentioned with regard to this species of legislation altogether. I should like to say a few words here with regard to the first clause, which provides for cases where a parent has relinquished the control over his child, and certain provisions follow. One of the instances by which the noble Lord sought to support this Bill was a case in which the parents of the child had suffered a lengthened term of imprisonment, and he asked your Lordships whether it was not a very improper thing that the child should have been returned to parents after they had come out of prison under such circumstances.
  22
  That, I think, would depend entirely upon the circumstances of the particular case; but as far as any objection on that account goes, there is nothing, as far as I can see, in this Bill which makes the imprisonment of the parents tantamount to the relinquishment by them of control over their children. We ought, I think, clearly to understand what it is intended that this legislation should do. I am strengthened in that remark by the words which occur at the end of the clause—
  "If the Court having cognisance of the case is of opinion that it is not for the benefit of the child that he should be brought up by the parent instead of the foster-parent."
  That is going rather far I think. What does "the benefit of the child" mean? To put an extreme case: suppose the foster-parent is likely to leave the child a large fortune, and the natural parent is not so happily circumstanced; is the Court to decide that it is not for the benefit of the child under those circumstances that he should be restored to his natural parent? It is impossible, I think, that my noble Friend can mean that. Unless something is introduced to make that a little plainer, I think it may lead to very great difficulty. Then the noble Earl has said that it would be right the Court should consider what is for the benefit of the child, rather than what is for the interest of the parent in the matter, and other noble Lords used the game language. It is not simply a question, I beg leave to say, of whether it is for the benefit of the child that it should be restored to its parent, or left in his custody. The assumption of the law, so far as I understand it, is that parents were by nature intended to have the control of their children; that that control is proper for the child, à priori, and that it is only where it is clearly proved that the child would suffer morally or physically by being left to its parents that he can be taken from their custody by the State. The benefit to the child is not the question; the question is, whether there is not a natural right existing in the parent, which only the strongest reasons can justify us in depriving him of. I confess I think the Committee will find some difficulty in welding these two measures into one; but I am very glad that the matter has been brought forward, and that your Lordships' atten-

  23
  tion has been called to it; and I trust that the labours of the Committee upon the Bills will bear good fruit.
  THE LORD CHANCELLOR: My Lords, there are a few additional remarks which I wish to make upon the present Bill. I think that some of the observations which the noble Earl has made are very material; but it seems to me that they would rather require discussion in Committee, and not to be discussed now, in dealing with the principle of the measure, because they are matters which, as it appears to me, can only be dealt with by detailed machinery. Let me take the most obvious suggestion with regard to the condition precedent to acceding to the demand of the parent that his child should be given back to him, that all monies paid on the child's behalf for its maintenance and education should be paid. I confess I regard that provision with exceeding jealousy; it looks to me very much like giving a sort of lien upon the child. It was not with that object at all that it has been put into the Bill. The object is to interpose a barrier against the demand of an unworthy parent to re-take possession of his child, I cannot doubt that that is the real object, because, regarding it merely as a matter of repayment, no one would suppose that the charitable institution or private person who has taken care of and brought up the child would willingly give him up upon being repaid the money which had been expended upon him. But if the real object is to impose a barrier to the resuming of possession by unworthy parents would it not be better to put that provision into the Bill, that an unworthy parent is not to be allowed to exercise that parental right which the Common Law gives him? Then I quite admit that, unless you make some provision with regard to the onus of proof, it may be very hard upon the charitable parson or institution that they should be called upon to submit to the child being taken away by the parent, unless they could give actual proof of the parents' misconduct when the parent who had disappeared re-appeared to claim him. There would, however, be no difficulty in changing the onus of showing misconduct; and if a child has been so deserted, and the parents have left it to the care of others, it would certainly not
  24
  be unreasonable to provide that, before the child should be allowed to be restored to him, the parent should show what was the reason of the desertion, how the child came to be abandoned, and that he or she is now in a position to resume possession of the child, and to take back again the parental control which they had voluntarily abandoned. And so with regard to the observations which have been made by the noble Earl who has just sat down. Unless some provision is made with reference to the principle on which the Court is to act where you have such words as "for the interest of the child," it seems to me that the Legislature will be abandoning its duty and throwing it upon the Judges without affording any guide to them in dealing with the very difficult problem which they have to solve. I think it ought to be explained in the Bill that what is meant by the expression "interest of the child" is not merely its pecuniary interest, but its moral and religious interests. Then, the moment you mention the religious interest, it is obvious that you raise a question which my noble Friend pointed out was one of the sources of danger in attempting legislation upon this subject. All I can say is, that I will listen with very great attention to any suggestions which may be made upon the clauses of the Bill to which reference has been made by noble Lords; and if the Bill can be so moulded, following the principles which it embodies, as to give effect to what is desired, as far as I am concerned I shall have very great pleasure in giving my assistance. One point more with regard to the duties which the Magistrates have to discharge. I confess I should regard with very great jealousy any proposal to submit questions of such importance and difficulty as those now under consideration to any other tribunal than the High Court. I certainly would not be a party to referring them to any other tribunal. Questions of this character affecting the relations between parent and child ought not to be remitted to Petty Sessions or Courts of inferior jurisdiction. If any such proposal were made, I am afraid I should be found on the opposite side. With the general objects of the noble Lord I am in hearty agreement. We are endeavouring to reach the same

  25
  goal. The only question is as to the mode in which that is to be done, and if the two Bills can he welded together satisfactorily I shall be very glad.
  Bill read 2a (according to order), and committed to the Standing Committee for General Bills.

  CUSTOMS AND INLAND REVENUE BILL.
  Brought from the Commons; read 1a; then Standing Orders Nos. XXXIX. and XLV. having been dispensed with, moved that the Bill be now read 2a; agreed to; Bill read 2a accordingly; Committee negatived: Bill read 3a, and passed.
CONTAGIOUS DISEASES (ANIMALS) PLEURO-PNEUMONIA BILL.— (No. 105.)
  DEEDS OF ARRANGEMENT BILL.— (No. 106.)

    WORKING CLASSES DWELLINGS BILL.—(No. 107.)
    Brought from the Commons; read 1a, and to be printed.
    House adjourned at twenty-five minutes before Six o'clock, till To-morrow, a quarter-past Four o'clock.