GUARDIANSHIP OF INFANTS BILL. [H.L.] (Hansard, 26 March 1923)

§ LORD ASKWITH
My Lords, it will not be necessary, I trust, to detain your Lordships very long over the clauses of this Bill. The Bill proposes to deal with the position of women and the rights and responsibilities of parents in regard to the guardianship, custody and maintenance of infants. It provides that the mother of every legitimate infant shall be guardian jointly with the father for all purposes, and shall have equal authority, rights and responsibilities. It also provides that both the parents of every legitimate infant shall be liable for the maintenance and education of that infant according to their means. The rest of the Bill is machinery, and is rather long owing to the insertion of the Scottish provisions.
The Bill is similar in principle to that which was introduced last year. It has since been deprived of some of the frills and furbelows and put into a more working dress, owing to the evidence that was given before the Joint Select Committee of both Houses. The reason for my suggestion that it may not be necessary to detain your Lordships is this. Two years ago in another place the principle was accepted on Second Reading. Last year your Lordships accepted the principle and gave the Bill a Second Reading, and both Houses of Parliament referred it to a Joint Select Committee. That Committee sat for three days and heard a great deal of evidence, but they had not completed their work by the end of the Session. Owing to the shortness of last Session the Bill was not introduced; but in its new and clearer form I ask your Lordships to give it a Second Reading.
If it is read a second time, I propose that it should go, with the concurrence of another place, to a Joint Select Committee. The six Peers who were members of that Committee are all willing to continue their work, and the permanency of your Lordships' House will allow them to sit; but the Members from the other House may have to be changed. Yet it should be practically the same Committee and should be able to continue the task of 632 taking evidence upon this not uninteresting subject. I beg to move that the Bill be read a second time.

§ THE LORD CHANCELLOR
Lords, it is convenient that I should state at once what course His Majesty's Government propose to take in this matter. It is the fact, as the noble Lord has said, that a similar Bill was last year referred to a Joint Select Committee. The Committee proceeded some way, but its deliberations were interrupted by events leading up to the Dissolution. It, therefore, did not come to the end of the Bill. If your Lordships think it right that the Bill should again receive a Second Reading, and go back to the same or another Select Committee the Government have no objection to that course. At the same time I hope that what I say will not be deemed to involve a pledge that support will be given to the Bill at any future time. That must depend upon the form in which it emerges, and upon further consideration.
Having said that, I do not like to let the Second Reading go without making a few comments upon the proposals in the Bill, because they are proposals of very great importance. As your Lordships know, the present law is this: When the parents are living together the father is the sole guardian or the child, and after his death, the mother. But the Court has wide powers of interference in the event of misconduct on the part of the guardian, and when the parties separate, or when a magistrate makes a separation order, the question of the custody of the children is almost always, or very commonly, taken into account and dealt with by the court. That is in very general terms the present rule.
This Bill proposes that even when the two parents are living together in the same household, the father and mother shall be joint guardians with equal powers, and if they disagree they can call in the assistance of the Court—it may be the High Court, or the county court, or the petty sessional court. That, of course, is a tremendous change. It may be right or it may be wrong, but it is a very big change. I look upon it with some misgiving not only with regard to its effect upon the harmony of many 633 thousands of homes where perfect harmony now prevails, but also with regard to its possible effect upon the discipline of the children, who may find a divided authority in the home and may perhaps, as children will, take advantage of it. There is also the objection that it may possibly throw a very great burden upon our Courts. I think—I am only stating my own opinion—that there is much to be said for the view that somebody in the household must decide, and if you must have somebody to decide you naturally give the decision to the head of the house who, in nine eases out of ten, or perhaps more, provides the means out of which the children are maintained and educated. This is a matter which I hope the Select Committee will look into with great care.
Having dealt with that, the Bill goes on to determine how the funds for the education and maintenance of children shall be provided, and the proposal is that they shall be found by the father and mother jointly, in proportion to their means. If funds are not found the other spouse—in most cases, the mother—can take legal proceedings to enforce payment of time amount which is required. That power to take legal proceedings to enforce payment is given not only to the mother hut to the next friend of the infant. I do not know whether your Lordships are familiar with the system of next friends. The next friend is, of course, anybody who can be got to take proceedings in the name of the infant. So the effect of this proposal is this. Suppose a child is sent to school and the father cannot pay the charges, or is unwilling to pay such high charges, or suppose the son is sent to a University and the father is not willing to pay such an allowance as the mother or the Judge thinks sufficient, the father may be prosecuted. He can be brought into court, and brought into court not only by his own wife—which is not a very desirable thing—but by anybody in the name of the infant. Or the son may say: "The allowance is not enough. I will get somebody to sue in my name, and make my father pay something more." That really is a very serious thing. I do not want to pronounce upon the Bill finally now, but I think that is the kind of thing the Committee ought very carefully to consider.
634 I want to refer to one other provision only—one which rather surprised me, and created some indignation in my mind. It is provided by Clause 7 of the Bill that an order for payment of money under this Act may be enforced in the same manner as an affiliation order. That really is an astounding thing. I pass over the absurdity of it as machinery. The High Court may make many of those orders, yet the High Court never makes an order for affiliation or enforces it. The, same applies to the county court. It is only the magistrates who enforce an order for affiliation. That is, however, an obvious mistake in the machinery of the Bill. At the same time I think it is most insulting thing that when a man has declined (perhaps quite reasonably from his point of view) to make a certain allowance, and the Judge thinks he ought to make that allowance, the order should be enforced upon him as if he had had a bastard child. People are to resort to the Affiliation Acts and enforce an order against him as if he was in that position. It is an astonishing thing to provide for such a proceeding.
People often complain about legislation by reference—sometimes without very much cause—but I never in my life saw a more unhappy instance of legislation by reference than that in this Bill. I cannot help thinking that it at all events ought to be cut out. I do not want to trouble your Lordships with a long argument. I have said enough to show that if the Bill should be read a Second time and sent to a Committee, it will require very careful consideration indeed from that Committee.

§ LORD PHILLIMORE
My Lords, I hope your Lordships ultimately will pause before passing this very drastic change in our law. I should like to endorse all that the noble and learned Viscount on the Woolsack has said, with this reservation, that I think he has omitted to tell your Lordships that with regard to infants of very tender years the mother now has preference to the father. That would still remain the case even if this Bill does not pass. I ask your Lordships to think what this Bill comes to. A father wishes to send his son to Harrow; the mother thinks Eton best. Or the father says: "All my people have been at Oxford: I should 635 like him to go to Oxford. "The mother thinks Cambridge best. You will have them going to the Courts—I do not know whether it is to be the stipendiary magistrate or a county court judge, or a Judge of the High Court—to decide to which school or University the boy shall go.

§ LORD ASKWITH
My Lords, I think the sort of case referred to by the noble and learned Lord who has last spoken is really one that might arise once in a thousand times, and if it did arise it would be decided by the Court in accordance with that which was best for the child. The principle of improving the status of women and considering carefully the question of the guardianship and custody of children and also their maintenance, not only in cases which come before the High Court of justice, but also in those which come before the lower courts, is one which is very important at the present time. Since our last meeting in the autumn there has been collected by the favour of the Foreign Office and Colonial Office a vast mass of material from all parts of the world on 636 this subject. In nearly every one of the States of the United States of America this principle of equal guardianship is already the law. It is also the law in British Columbia, where, I understand, it is working extremely well.

§ LORD ASKWITH
My Lords, I beg to move that this Bill be referred to a Joint Committee of both Houses of Parliament.