(No. 98.) SECOND READING. (Hansard, 5 June 1890)

§ 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a Bill on the subject I considered it was my duty to point out certain objections to it, and that Bill was ultimately withdrawn.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.

§ 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.