Lords Sitting of 6 February 1891

PHYSICAL EDUCATION IN ELEMENTARY SCHOOLS BILL. [H.L.]
A Bill for the promotion of physical education in Elementary Schools—Was presetend by the Lord Chaworth (E. Meath); read 1a; and to be printed. (No. 30.)

CUSTODY OF CHILDREN BILL. [H.L.] (No. 18.)
Order of the Day for the House to be put into Committee, read.
Moved, "That the House do now resolve itself into Committee."
LORD MORRIS: My Lords, before we go into Committee I take the liberty of trespassing upon the time of the House. This is a Bill which anybody who reads it must see interferes with the ordinary parental right, a right which is not only recognised by the Common Law, but is founded upon the law of nature. However, from facts which have been brought before the House, as well as from a general consensus of opinion as I understand upon the subject, it is admitted that there is an evil which should be remedied, and that that right of parents should be controlled in consequence of its having been so much abused in many Ways, upon which I do not intend to enter into detail. Those reasons were put forward very strongly upon the occasion upon which this Bill was sent to the Standing Committee last year. I would only suggest to your Lordships that the Common Law right of parents to the custody and control of their children should be interfered with only so far as it is found to be absolutely necessary; and, as I understood the remarks of the noble and learned Lord on the Woolsack, he said he would bring in a short Bill which would meet that admitted evil. My noble and learned Friend opposite (Lord Herschell) said that what was wanted was some power by which parents who were not proper persons to be entrusted with the care and keeping of their children should be dealt with, that some power should be vested in the Judges of the Court to refuse to deliver up children to
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parents who have proved themselves unfit to have the guardianship of their children. To that extent I agree, and I have no objection to the Bill. But the Bill, in my opinion, goes much further, and in a few minutes, by reference to its provisions, I shall explain why I think it goes much further. The Bill of the noble and learned Lord upon the Woolsack is substantially comprised in the 1st clause as it has come before the Standing Committee. That, in my opinion, until I hear something to alter it, meets the admitted evil, because it provides that if the Court
"Is of opinion that the parent has abandoned or deserted the child, or that he has otherwise 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."
That appears to me to entirely cover the admitted evil by providing the power which the noble and learned Lord opposite said should be vested in the Court, not to deliver up a child to a parent who has disentitled himself to the custody of the child. But in the Standing Committee two other clauses were added to the Bill as it was introduced by the noble and learned Lord on the Woolsack. One of those clauses has no connection with the subject except in so far as it may throw a difficulty by the imposition of a penalty in the way of a parent who otherwise has established, as he is entitled to show that he has a right to the custody of his child. Clause 2 proceeds upon the hypothesis that the Court has made an order, or is about to make an order, for the restoration of his child to a father who is otherwise properly entitled to its custody. The clause provides that—
"If at the time of the application for a writ or order for the production of the child, the child is being brought up by another person, or is boarded out by the Guardians of a poor law union, the Court may in its discretion if it orders the child to be given up to the parent
—which can only be if the Court thinks the parent a proper person to have the Custody—
"further order that the parent shall pay to such person, or to the Guardians of such poor law union, the whole of the costs properly incurred in bringing up the child, or such portion thereof as shall seem to the Court to be just and reasonable, having regard to all the circumstances of the case.

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The admitted evil already met by the non-delivery of a child to an unfit father does not require that clause. That is a clause introduced in order to throw a difficulty and to inflict a penalty, or it is an attempt to create a contract between a parent otherwise properly entitled to the custody of his child, and somebody who goes here under the name of "another person." This is really an attempt to extend the law of contract. If a person asks another to visit him at his house he cannot send in to his guest a bill when he goes away for the cost of his entertainment. As the old rule says, "That which was begun in courtesy cannot end in contract;" but here, according to this clause, what is begun in charity is to end in contract, and the person who is supposed to have been doing a good charitable action is to get back all his expenditure. This clause appears to me to be entirely unconnected with the purview of the Bill. It is a clause under the guise of protecting children from injury at the hands of improper and unfit parents to enable individuals and institutions supposed to have been acting from charitable and philanthropic motives to recover that which they could not recover by any process known to the law because there is no liability under such circumstances. Then the 3rd clause is either unnecessary or mischievous, or probably both. As I have said, as the 1st clause entirely covers the admitted evil and does what is required, what is the necessity for another clause? The object of the Bill, as enacted by the 1st section, is to give to the Court a discretionary power, because it directs that the Court shall, if it thinks fit, refuse to enforce the right of the parent; but this clause gives no power to the Court; on the contrary, it withdraws all power from the Court, and makes the office of the Judge to a great extentmerely ministerial, for it provides that
"Where a parent has abandoned or deserted his child or allowed his child to be brought up by another person at that person's expense for such a length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties,"
the Court shall not order that child to be delivered up to the parent. Now, when the Court comes to the conclusion that
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the parent has been unmindful of his parental duties, whatever that may mean, on the hypothesis—for I am asuming that under the clause he is a fit and proper person, otherwise he would not be entitled to get the custody of his child—then what is the Court to do? The Court has no discretion. It shall not make an order for delivery of the child to the parent unless it is satisfied, that is, unless he is able to show that it is for the welfare of the child that he should have the guardianship. I suppose that he can benefit the child in some way in a material point of view in the world; that it would be actually a benefit to the child to be taken from the custody in which it is. That clause appears to me to be of a most dangerous character, going far beyond the evil which is complained of, or any reason which has been brought forward for altering the Common Law of the land. It does appear to me that when your Lordships are asked to interfere with a right of this sort, which is coeval with our very law, you should be very cautious in going beyond the absolute necessity of the case. If I have demonstrated, as I venture to think I have, that the necessity of the case is met by Clause 1, there is no necessity for Clause 2 (and I do not see that Clause 2 has any connection with the subject except indirectly), and Clause 3 goes far beyond it. The noble and learned Lord opposite is reported to have said, on the Second Reading of the Bill, that the only difficulty which arises in the matter is the religious difficulty; but I am not referring to anything connected with the religious aspect of the matter. I object to Clauses 2 and 3 as being out of the pur-view of the Bill and beyond the scope of Clause 1, which embodies and carries out the intention, and which would have amply met the evil which is admitted to exist.
LORD THRING: My Lords, I desire to say a few words in answer to the noble and learned Lord who has just spoken. I confess I cannot understand his fastidiousness about the feelings of such parents as the Bill deals with, and their Common Law right of parental control. What have we to deal with here? We have to deal with the control of drunken fathers and profligate mothers over children who have been saved from

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misery, degradation, and ruin, and have been properly brought up by charitable persons or institutions. What possible necessity can there be that such parents should exercise any control whatever? The noble and learned Lord says that the costs are intended to be a penalty. No doubt they are so intended. They are intended to be a penalty, and it is a just penalty too. Is it right or fair that a man should desert his child, abandon it in the streets, leave it to be brought up by other persons, and then come to the Court and say, "I am entitled by my parental right to the custody; give me back that child?" The least he can do, the very smallest measure by which he can attempt to atone for his wickedness, wickedness which might have had terrible consequences, is that he should be willing to pay something towards the cost of the maintenance and bringing up of his rescued child. Is it right or just, when an institution supported by charity, which renders the greatest possible service to the community in saving these children, has been for years at the cost and trouble of bringing them up that drunken and profligate parents are to be allowed to come and take them without paying even one penny towards their maintenance? If you like to call it a penalty, a penalty let it be; but I think it is one of the most righteous, one of the justest penalties that could be inflicted. So far as to Clause 2. Then, with regard to Clause 3, my noble and learned Friend says it is useless and against the Common Law. I do not think it is against the law. As the noble and learned Lord on the Woolsack has said, this is simply a clause inserted to give the children of the poor the same benefit as that now possessed by the children of the rich. I have only to make a child a ward in Chancery to-morrow, and everybody knows that the noble and learned Lord on the Woolsack will, in his character of Lord Chancellor, take care that that child shall not be delivered up to a parent who, in the language of this Bill, "has shown that he has been unmindful of his parental duties." This is not an entirely novel interference with parental rights of control. That interference took place in Shelley's case, and in innumerable other cases which have occurred in the Court
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of Chancery, in which the reason why the child was not given up was not always that the parent was profligate or dissolute, but simply that it was better for the welfare of the child that it should be removed from the custody of the parent. And what does this Bill do? It gives to the poorer children the same protection as that extended to the children of the rich—it gives to the institutions and noble people who are working for these children, claiming through the children themselves the same privileges as would be possessed if there were money settled upon them, and they were made wards of the Court of Chancery. It is out of my power to conceive how any noble Lord in this House should oppose the Bill as being opposed to the Common Law; for, as I have shown, it is strictly in accordance with the law in affording to children much needed protection, without which all efforts to save them may at any time be thrown away.
LORD NORTON: My Lords: I cannot help thinking that if the noble Lord beside me (Lord Morris) has been too fastidious about this Bill as an interference with the right of parental control given by the Common Law, the noble and learned Lord who has just sat down goes as much too far in the other direction. He laughed at the fastidiousness of my noble Friend with regard 'to parental rights, upon the assumption that all the parents dealt with in the Bill are drunken. When parents so claim their children it will be the duty of the Court to distinguish between honest, if unfortunate, parents, and those who are not fit to have the custody of their children; and if the Judge is to look upon all these parents as drunken and profligate persons, he has already forestalled his conclusion, and must regard this Bill as a measure simply for preventing such children ever getting back into the hands of their parents. I confess myself that I look with the greatest suspicion upon any Bill of this sort, because I think it is too much the tendency at the present time to let the State undertake private and parental responsibilities; at the same time, I know very well and fully admit the necessity for the protection which it is the main object of the Bill to afford. It not infrequently

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happens that a child who has been brought up carefully in an industrial school, or some otter public institution, and trained to a trade is taken back by the parents, and introduced again into a vicious life, and thus all the care and public money expended on the child has been thrown away. But the check against such an evil must be imposed in the most guarded manner, and I think the Bill should not go an inch further than is absolutely necessary in interfering with parental responsibility and control. I thinkwe ought to go into Committee, as we are all agreed upon the necessity for such a Bill, and the only question is as to the form in which it shall be passed.
THE BISHOP OF CARLISLE: My Lords, I should like to say a few words before the subject drops. It strikes me that the difference which arises between the noble and learned Lord who spoke first and the noble Lords who followed him depends upon an article; one seems to have taken the definite article and the other the indefinite article. All the difficulties which have been suggested by the noble Lords who have spoken appear to me to rest upon the apparent reading of "a" instead of "the" in Clause 2. That clause runs thus—
"If at the time of the application for a writ or order for the production of the child"—
not "any" child, but "the" child. "The" is interpreted and defined by Clause 1. The fact there referred to of the child having been deserted by worthless parents, who have shown themselves to be unfit to have the custody of the child, applies to Clause 2, as I understand it; and, therefore, all that has been said about courtesy not being capable of ending in contract appears to be disposed of by those words. Surely there can be no question of courtesy whatever here; it is a case of the most discourteous possible kind, if the term be permissible in such connection, namely, the abandonment and unkind treatment of the child. Now, if my view is right, that that idea runs through the whole of it, we have nothing to do with the possibility of injustice towards respectable parents, or with want of consideration for their parental rights. This I apprehend, and I shall be corrected if I am wrong, is a Bill which distinctly from end to end deals with parents who have proved
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themselves to be unworthy of being guardians of their own children; and if that is borne in mind, I venture to think the objections raised against the Bill altogether fall to the ground.
THE EARL OF MEATH: The noble and learned Lord on the other side of the House who is a distinguished countryman of mine has always shown himself a great supporter of law and order, and I have looked up to him as one who has always supported the honest and the just and the upright man in his own country, while his hand was always found raised against the dishonest and the cruel and the evil-doers. I cannot understand why the noble Lord should, upon this particular occasion, have accepted, as it were, a brief from the drunken and disreputable parents, because it is altogether contrary to his usual practice, and I earnestly hope your Lordships will give no support to the objections he has raised. But he goes on to say, that in taking charge of these children the people who do so are acting exactly as the host does who invites you or I to his house, and who would have no right to send us in a bill because we are thus entertained. I perfectly agree with the noble and learned Lord if that were the case, but I do not think it is the case as regards these children. As a rule, the class of children the Bill is intended to deal with are children who have been thrown helpless on the streets, and wickedly deserted by their parents, and who are taken by the hand by benevolent persons or by charitable institutions; and I see no hardship whatever in making such parents, where it is possible to do so, refund to those benevolent individuals or charitable institutions at least a portion of the money that has been expended on the care and training of their children. If all parents were honest and just, kindly and true, towards their children, there would, of course, be no reason for bringing in a Bill of this sort; but unfortunately we, as legislators, have to look at the world as it is. We all know that there is a section of the population, numerically large, though comparatively perhaps but a small section, who as parents do neglect their children. It is well known to all your Lordships that there is a certain number of parents who treat their children

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cruelly, neglect and desert them. I was very pleased to hear my noble friend (Lord Norton) that he agrees in the necessity for the measure, in so far as Industrial schools are concerned. He acknowledged that children are taken from. Industrial Schools by worthless parents, and in many cases relapse in to vice. I know that to be the fact. I was told a short time since by the manager of one of these schools that no fewer than one-fourth of the children who go back to their parents relapse; whereas only 1 in 20 relapse of those who are placed out by the Industrial Schools, and are taken care of. I need act point out how great the difference is between one-fourth and one-twentieth. I hope, as the noble Lord is himself acquainted with the fact that in the case of Industrial Schools there is an evil to be remedied, he will not oppose the Bill which the noble and learned Lord on the Woolsack has brought in for that purpose. It has been very truly said that if we do not take care to form these children the world will deform them. If we do not take them up they will be disfigured and degraded; the image of God which is in them will be obscured, and perhaps at last extinguished. For my own part, I feel deeply indebted to the Lord Chancellor for bringing in the Bill, and I hope it will be passed just as it stands. It has been thoroughly sifted by a Committee, comprising some of the most eminent Members of your Lordships' House, and the only reason why it did not pass the other House last Session was because of the unfortunate congestion of business in that Assembly. I trust, for the sake of the neglected children, that the Bill passing your Lordships' House, as I hope it will, at such an early date as this, will now become part of the law of the United Kingdom.
LORD HERSCHELL: My Lords, I think there has been some misapprehension as to the effect of this Bill. The 1st clause simply enables the Court, where a parent has deserted his child or abandoned it, or shown that he has been careless of its welfare, to refuse to give it up to him, unless satisfied that the circumstances have become such that he ought to have it. Then, all the 3rd clause does is to provide that he should show those circumstances. If it is shown
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to the Court that the parent has a bandoned or deserted his child, or allowed his child to be brought up by another person at that person's expense under such circumstances as to satisfy the Court that he has been unmindful of his parental duties, an order shall not be made for the delivery of the child to him, unless he satisfies the Court that he is a fit person. So that where a parent applies for the custody of a child which has been taken care of by others, Clause 3 only throws upon him the onus of proving that he is fit to be entrusted with the care of it. Surely there is nothing unreasonable in empowering the Court to say to a man who has behaved in that way, "Before the Court is forced to give you the custody of the child you shall show that you are a fit person to have it."
On Question, agreed to.
House in Committee accordingly.
Clause 1.
THE LORD CHANCELLOR: My Lords, I propose to amend Clause 1 for a reason which I will explain. The mode in which the Bill was moulded in Committee has led to the putting together of a number of provisions in a way which may possibly be misunderstood. I am not quite certain that I entirely agree with the criticism that has been made in regard to what I may compendiously call the "conscience clause," which at present forms part of Clause 1. It has been suggested that it would be there so limited in its operation that it would only apply to Clause 1, so that in the construction of the clauses as they stand, if any case should arise under, I will say, Clause 3, this proviso coming under Clause 1 might be considered to be limited to that clause, and not to extend to the other clauses of the Bill. As I have said, I am not altogether convinced that that is the true construction which should be placed upon the 1st clause; but it appears to me, if there is the least doubt about it in the mind of the noble Lord, it had better be swept away. It is very easy to alter the clause for that purpose. What I propose to do is to let Clause 1 come to an end at line 11 at the words "the Court may in its discretion decline to issue the writ or make the order," leaving out the rest of

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the clause. I then propose to put in the conscience proviso as a separate and independent clause at the end of the Bill. Under those altered circumstances I think no one can doubt that that clause will have its full operation upon every clause in the Bill.
LORD NORTON: There is no definition of the circumstances under which the Bill is to apply. The clause begins with a parent's application for the production of a child. That is presumably from some custody in loco parentis, but there is no description of the sort of custody. When any parent applies for the production of his child, he is to sue for a writ of hebeas corpus. What an idea for these poor wretched parents, who are really in view, whom most of your Lordships who have spoken on this subject have rightly supposed to be of the lowest possible class, both morally and in their circumstances! They are to go to the High Court in England, or to the Court of Session in Scotland, for a writ, or order, Such parents would be prevented from ever attempting to get back their children, and they would have to submit to any deprivation whatever their right might be. The fees alone would bar them. My noble Friend Lord Meath, in his original Bill, for which this is a substitute, mentioned no Court at all, but merely said that the parent should be enabled to get the custody of the child under certain circumstances, without saying, by what proceeding. The means here provided are far too high—so high, in fact, as to be entirely out of the reach of the class of parents to whom the Bill refers. It seems to me, also, that the discretion of these Courts is unlimited. The parent may be refused the custody of the child if the Court considers him unfit. Now, considering what strong views many have as regards education, it seems to me an extremely wide discretion to give the Court, to allow anyone inloco parentis to have the custody of his child if the Judge considers that the parent has misconducted himself. I will only ask the noble and learned Lord whether he really thinks that the High Court is fit for this purpose? I should myself have thought that the Court of Petty Sessions would have answered better for the only necessary
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purpose. The Magistrates in Petty Sessions have conducted all the affairs, cunnected with our Reformatory and Industrial Schools and all cases of the kind connected with matters now dealt with by this Bill; and I think that if these cases were brought before the Courts of Petty Sessions, they would be fairly and fully and safely dealt with, and those Courts would be within the reach of these poor people, whereas the Courts prescribed by this clause would be entirely out of their reach, and there might just as well be no legislation at all on the subject.
THE LORD CHANCELLOR: I do not know whether the noble Lord is quite familiar with the law on this subject. Apparently he is not, because he seems to be under the impression that the present Bill is an endeavour to make some alteration of the law in this direction of dealing with the custody of children. He objects to the High Court being designated as the tribunal to deal with these applications, but he is probably not aware that that is the only Court to which you can apply for a writ of habeas corpus; and if his case is a good one, that these applications shall not be made to the High Court, the Bill can have no operation at all. If he will be good enough to look at the 1st clause he will see that it commences by referring to cases
"Where the parent of a child applies to the High Court, or the Court of Session, for a writ or order for the production of the child."
That is the only condition under which the Bill comes into operation, and the Bill has no reference to such a subject-matter at all as my noble Friend refers to. It does meet the difficulty which constantly arises where a writ of habeas corpus is moved for by a parent, and where the Court has felt itself bound upon that application to give the custody of a child to the parent, although, in the judgment of the Court, that parent may be a very unfit person to have the custody of it. But the law as it stands at present has not said that the Court shall have the discretion of refusing to give up a child to its parent where the Common Law says he has that right. I think I might for answer refer the noble Lord to my noble and learned Friend behind him, and I might ask him whether he thinks it would be an improvement

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in this Bill to repose the power which I propose to vest in the High Court, in the hands of every Magistrate in the Kingdom. However, there is no such question before your Lordships, for the Bill only applies to cases where the application is necessarily made to the High Court.
Amendment moved, to omit the latter part of Clause 1 after the word "order," in order to insert the said words as a separate Clause at the end of the Bill, agreed to.
Clause 2.
LORD MORRIS: I move that Clause 2 be omitted from the Bill. I would wish at the outset to set myself right with the House. I thought that I had, in terms which to my own mind appeared clear, admitted that there was an evil which ought to be remedied, and that I considered that evil was amply remedied by Clause 1. That has been called by my noble and learned Friend opposite being "very fastidious" about the right of parental control, and he rather read us a homily—I will not say complacently denounced me—because my opinions do not exactly coincide with his. I confess that I am conservative in legal matters; and I am always desirous of avoiding extremely radical measures, especially measures of such a description as that which was passed by the Revolutionary tribunal in France, that the State should be regarded as the parent of the children of citizens. The noble Earl from Ireland upon the Cross Benches says I am acting contrary to my position as a supporter of law and order. I do not think I am. On the contrary; I think I am supporting it in objecting to an irritating legislation, irritating, I say, when it goes one iota beyond the admitted evil, an evil which I have not denied. The noble Lord does not explain why that remedy is not amply given by Clause 1, when under that clause no unfit person can again get the control of his children. The right rev. Prelate who spoke upon this subject said the difficulty arose from a confusion between the articles, not the Articles of the Church, but the definite and indefinite articles. With great respect to the right rev. Prelate, I do not think I have fallen into that mistake. Indeed, he could scarcely have attended to the
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speech of the noble and learned Lord opposite, who pointed out that in every case the parent must show that he is fit to get back his child, that he is not a drunken or dissolute person, or of such a character that he should not be entrusted with the custody. If he does not get back his child cadit quæstio; but if he does get back his child upon showing that he is a fit person, not withstanding that he must, under Clause 2, pay as he would have to do had the child been at a hotel or boarding house, the expenses incurred during the time that the charitable institution or persons have been taking care of it and getting money from the public under the representation that they were maintaining, bringing up, and educating the child. Does the right rev. Prelate suppose that this is to be upon the application of and that the payment is to be made in the case of a drunken parent? It is not. It is to be in the case of the proper and respectable parent, whose child has been taken from him under circumstances which the Court would consider improper. If that is so, why is he to pay for what has been done without his consent? But is getting hold of a child any reason for creating a contract and making a person pay whom the law has decided but the moment before is a proper person for having the custody of his child? If we are to suppose that this Bill is only to apply to dissolute parents I do not object to it; but the object of putting it in is, as a penalty or a contract, or whatever you like to call it, that the parent is to pay a lump sum of money, although the Court has decided that he is a proper person to have the custody of the child. I do not see the necessity for it. What becomes of the "drunken and dissolute persons"—using all the expletives you please—when the clause applies to a person who is considered fit and proper to have the custody of his child? On these grounds, in order that it may not be said that this Bill has passed your Lordships' House unanimously. I venture to say that I object very strongly to Clause 2, and I move its omission.
LORD HERSCHELL: The noble and learned Lord says this clause goes beyond what is necessary. Now, I cannot admit that any clause goes beyond what is necessary which only goes as far as is just. Of course, if it goes beyond what

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is just, I admit that would be a very good ground for omitting it, but I cannot admit for a moment that this clause does go beyond what is just. In the first place, I would say I regret that the speech, of the noble and learned Lord betrays the most absolute lack of confidence in the Judges of the High Court of Justice in England and the Court of Session in Scotland. His whole speech is founded upon his utter disbelief in the discretion with which they are entrusted, because nothing can be done under this clause except what they in their discretion think right. Of course, if you cannot trust the High Court and the Court of Session, well and good; but I confess that I should have expected to hear that from any quarter rather than the quarter from which it came. My noble and learned Friend says this only applies in the case where you are going to give the custody of the child to the parent, and, therefore, that in such a case it can never be reasonable that he should be called upon to pay the past expenses of bringing up his child. Is that really so? A parent may have neglected his child most grossly and improperly; he may have left others to bear the burden of bringing it up which he ought to have borne, and yet he may come to the Court under such circumstances and demand to have back his child. Surely it is not unjust that the Court should be empowered to say to him, "Notwithstanding your past misconduct we are not going to deprive you for ever of the custody of your child; under the circumstances, we think you may safely be trusted with its custody; but, at the same time, having regard to your conduct in the past, we think it only reasonable you should recoup to those who have borne the burden you ought to have borne the expense they have incurred." He has neglected his duty; somebody else has performed it for him; you say, nevertheless, you will not deprive him of the custody of his child. The noble and learned Lord, in order to justify his case, must say there cannot be a case in which a parent should be compelled to pay anything. In order to show that this clause ought not to be inserted my noble Friend must go the length of saying there is no case in which the Court trusts the child to a parent again in which it ought to
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call upon him to bear the burden which he has cast upon others. It seems to me that it is a discretion which may safely be left to the Courts, to say in such a case how much the parent shall be compelled to pay for the support of his child. I think they may well be trusted not to do so where it would be unreasonable.
LORD NORTON: My Lords, I should like to say one word upon what has fallen from the noble and learned Lord opposite. I maintain that this clause is not only right, but that it is absolutely essential, and one of the most important clauses in the Bill. There is no penalty imposed upon giving back a child to the parent, as my noble Friend behind me says, but it is at the discretion of the court to order that the whole, or any part of, the expenses incurred in maintenance shall be returned by the parent upon getting back his child. Let me point out to the noble Lord the importance of that proviso. In the case of Industrial Schools, the parent is made to pay as much as the Magistrates think he ought to pay of the expense incurred during the time the child has been brought up in the Industrial School. He is ordered to pay as much as he can. That is found to be the most important provision in the Act. It is the only check upon abuse. The Industrial Schools of this country are abused now to an enormous extent, and unless there was a check in the nature of demanding a payment as far as possible from the parent the abuse would be unlimited. In fact, the Act would operate as a premium upon neglect by parents, because it would be, on the part of the State, absolutely and unconditionally undertaking the care of children who are deserted or neglected by their parents. Without some check on such conduct these Acts would positively be most mischievous, and so far as a parent's liability to pay for his child's education is right and just, it is essential as a check against abuse. The Court would take into consideration what parents have already paid and their power to pay or refund more; but they should, as far as they can, be compelled to recoup the State Institution or benevolent persons for the expense they have been at in taking care of their children and relieving them of the duty which naturally and properly devolves upon them.
THE BISHOP OF CARLISLE: As the noble and learned Lord who proposes the omission of this clause has referred to a few words which fell from myself, I should like to add a few remarks. One is not obliged to agree entirely with a statement which comes from any authority however eminent. I did not agree with the statement which comes from the noble and learned Lord, and therefore it was that I ventured to trouble your Lordships with the remarks which I made. Both upon my objection to the clause on the one hand and the reason which I should have given for supporting it, all I should have said has been very much better said by the noble and learned Lord opposite, and I think it is quite unnecessary for me to say anything more in that respect. All I would say is that it seems to me the fatal mistake under this clause is in forgetting that a man or woman does not always remain for 10 or 15 years what they have been. A man may have been a very improper person to have been entrusted with the custody of his child for a certain period; he may have deserted the child in the most abominable way, and the child may have been taken charge of by others and put into an Industrial School; but 10 years afterwards that man may have become a thoroughly reformed character, and may come before the Court to demand his child under such circumstances that the Court would consider he should have the custody of it. But he has, in the first instance, committed a great fault by abandoning his child; and if the Court thinks that the circumstances are such as to justify putting the burden or penalty upon him of recouping the expense of the child's bringing up, I cannot see what possible injustice there can be, except upon the impossible hypothesis of the High Court of Justice or the Court of Session being totally dead to all feelings of duty and good sense in the matter. Therefore, seeing that it is a matter which is discretional with the Court, and that it is perfectly possible that cases of the description contemplated may arise—and I believe that evidence would show such cases have arisen—it does seem to me a most wise provision that the Court should have this power of making parents pay, supposing the circumstances justify it. I would
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add; with regard to the noble Lord who spoke last, that many such cases as those to which he referred have been brought under my notice in Industrial Schools I know that children are put into the schools at a certain age, and are practically abandoned by their parents; but that when those children have been brought up, trained, and educated, and are likely to become useful, they are demanded by their parents, it may be for the purpose of making beggars of them, or for making use of them in other and worse ways. It is not right that for such purposes against the welfare of the children, parents should be allowed to claim them, and there ought, beyond all doubt, to be some kind of restriction put upon that abuse of the Industrial Schools. Upon those grounds, I think this is a most admirable clause.
On Question, "That Clause 2 stand part of the Bill," agreed to.
Clause 3 agreed to.
New Clause—
"Upon any application by the parent for the production or custody of a child, if the Court is of opinion that the parent ought not to have the custody of the child, and that the child is being brought up in a different religion to that in which the parent has a legal right to require that the child should be brought up, the Court shall have power to make such order as it may think fit to secure that the child be brought up in the religion in which the parent has a legal right to require that the child should be brought up. Nothing in this Act contained shall interfere with or affect the power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice."—(The Lord Chancellor.)
LORD NORTON: It really does appear to me that we are very tender about conscience or religion in this matter. It would seem that an idea has got abroad among the public that benevolent persons who take care of neglected and abandoned children have principally in their minds some proselytising object. Well, anything of that kind ought certainly to be checked, but I would only venture to ask the noble and learned Lord on the Woolsack, as he says I have no knowledge of the law——
THE LORD CHANCELLOR: I did not, indeed.
LORD NORTON: What is the legal right of a parent under circumstances such as those to which this clause

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applies—that is, condemned as unfit to have his child, as to the religious instruction required? The clause might at least be so worded that the parent shall be bound to show that his child is being improperly taught in a religious point of view, and not that the Court shall be bound to form an opinion that the child is being taught a different religion. At all events, the proof should come from the parent that his child is being taught in some religion different from his own. We might have to provide for not only the Christian religion, but Mahommedan and Buddhist, and all denominations, and even Agnostic, probably the character of religious belief of most of the parents to whom the clause would apply.
THE LORD CHANCELLOR: I am bound to say that I share the difficulty of the noble Lord in understanding what the proposition is with which I have to contend. I certainly did not say the noble Lord knows nothing about the law, for I believe he is a distinguished member of the Bench of Magistrates in his county, and that on that Bench which he adorns he administers justice to the great satisfaction of all those amongst whom he performs his duties. But really and seriously, I have great difficulty in understanding what the noble Lord wants to know. If he will be good enough to look at the language of the section I think he must admit that it is, as it seems to me to be, very plain. It provides that—
"Upon any application by the parent for the production or custody of a child, if the Court is of opinion that the parent ought not to have the custody of the child."
That is one branch; then it goes on—
"And that the child is being brought up in a different religion to that in which the parent has a legal right to require that the child should be brought up."
That is the second branch of the proposition. It must, therefore, appear to the Court that the parent is unfit to have the custody, and that the child is being brought up in a different religion. The order is to be made after the child has been brought before the Court, and after the Court has been satisfied, upon summons presumably by the applicant, that the child has been brought up in a different religion to that which the parent
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has a legal right to require. I pause there to point out that those words are general. They do not give any definition of what "religion" is to be held to mean. So far as I can judge of what the noble Lord means, he means that there should be an enumeration of all the different religions of the world among which mankind is divided, and that in regard to each of them he would have special protection thrown around it.
LORD NORTON: No.
THE LORD CHANCELLOR: Then I positively declare that I do not know what the noble Lord does mean; but perhaps he will allow me to point out to him with regard to this point of religion, whatever the legal right is of the father to have his child brought up in the religion which he desires it should be brought up in, provided always, of course, that the child has not arrived at such a period of life that it has formed opinions of its own, it goes on to provide that—
"Nothing in this Act contained shall interfere with or affect the power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice."
So that the hypothesis upon which this clause is introduced is that a child is being brought before the Court not able to exercise its own free choice in point of mind, education, and age, and that the father has a legal right to direct in what religion it shall be brought up, that legal right being then invaded, then that is one of the matters which is left in the discretion of the Court. I cannot forbear repeating what my noble and learned Friend said across the Table just now, that the noble Lord really seems to have a very great distrust of the sense of justice of the High Court. What is the difficulty which the noble Lord has in his mind about it? Does he think that the protection which is given to the rights of parents in this regard ought to be confined to one or other of a certain number of religions, which he wishes to see introduced into the clause? I have no right to ask him for an answer, but perhaps the noble Lord will explain before he proceeds to divide the House, if he does divide it, what it is he does mean, and what religions he wishes to have enumerated. If the noble Lord can make an

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intelligible clause by his Amendments he must forgive me for saying that he will do that which he did not accomplish in his speech.
LORD NORTON: I was only suggesting the addition of such words as, "if the parent can show the Court" that the child is being brought up in a different religion from that which he approves. By what means is the Court to ascertain, and to secure the religion which the parent condemned as unfit? I only propose that the onus probandi should be on the parent to show that the child whom he has abandoned and is not allowed to take back, is being educated in a different religion. How also is the Court to secure this peculiar teaching, and from what funds?
Clause added.
Report of the Amendments to be received on Monday next; and Bill to be printed as amended. (No. 31.)

PRESENTATION TO BENEFICES BILL. [H.L.] (No. 5.)
House in Committee (according to order); Bill reported without Amendment; and to be read 3a on Monday next.
House adjourned at half-past Five o'clock, to Monday next, a quarter before Eleven o'clock.