HL Deb 09 July 1924 vol 58 cc348-75

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly:

(The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Principle on which questions relating to custody, upbringing, etc. of infants are to be decided.

1. Where in any proceeding before any Court (whether or not a Court within the meaning of the Guardianship of Infants Act, 1836) the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question shall have regard solely to the welfare of the infant, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.

VISCOUNT CAVE moved to leave out "have regard solely to the welfare of the infant" and insert "regard the welfare of the infant as the first and paramount consideration." The noble and learned Viscount said: I put down this Amendment in the hope of persuading your Lordships to remedy what I think an oversight, or at all events a defect. It is proposed by Clause 1 of the Bill to enact that in considering the question of custody and matters of that kind the Court shall have regard solely to the welfare of the infant. I am sure that the right course is to make the welfare of the infant the paramount consideration, and it was my duly, in a recent case which came before this House judicially, to lay that down as the rule of our Courts, but I think it is a mistake to say that the Court shall shut its eyes to every other consideration.

The Act of 1886 provides that the Court shall consider the conduct of the parents, and the wishes as well of the mother as of the father. I do not sec why those considerations should be excluded, as they would be excluded I think by this Bill. The conduct of the parents is surely material in considering what is to become of their children. The wishes of the parents, who may possibly agree, ought also to be considered, and may very likely be of more value than the opinions of the Judge himself not guided by those wishes. There are other matters which also ought to be considered, such as the responsibility of the father for his children, the special suitability of a mother to have charge of young children, questions of religion, and matters of that kind; indeed, all the facts ought to be before the Judge, and he ought to be entitled to take them into his mind in coming to a decision. I, therefore, propose, instead of saying that the sole consideration shall be the welfare of the infant, that the welfare of the infant shall be the first and paramount consideration, and that we should leave the Judge at liberty to consider the other matters also. I beg to move.

Amendment moved— Page 1, lines 18 and 19, leave out ("have regard solely to the welfare of the infant") and insert ("regard the welfare of the infant as the first and paramount consideration"),—(Viscount Cave.)

THE LORD CHANCELLOR

I have listened to the speech of the noble and learned Viscount, and I think that he has made out his case, the more so because his Amendment covers the substance of what is dealt with in an Amendment which comes later, and I think that the words, as he proposes to insert them, are better than the words as they appear in the Bill. It is true, as he says, that we ought not to look solely at the welfare of the infant, because there may be other considerations which affect the welfare of the infant which should be taken into account. After all, the infant is a member of a social unit, the family. I need not say more than that I am prepared to accept the Amendment.

On Question, Amendment agreed to.

VISCOUNT FITZALAN OF DERWENT moved to add the following proviso to the clause:— Provided always that, where the religious education of an infant is in question, the Court, in deciding that question, "shall take into consideration the wishes of the parents so far as they shall have been ascertained concerning such education, and where it appears that the wishes of the parents differ, or during their joint lifetime have differed, the Court shall take into consideration any agreement at any time entered into between the parents touching the matter in question.

The noble Viscount said: I understand that this Amendment is considered in some quarters unnecessary, and I admit that after the Amendment of my noble and learned friend below me, which has been carried, it may be argued that my Amendment is still more unnecessary. At the same time, I hope your Lordships will be kind enough to accept it. The noble and learned Viscount who moved the last Amendment alluded to the question of religion, but the word religion does not appear in the Bill, and I venture to think, and others agree with me, that in a Bill of this character affecting children questions of religion should not be altogether ignored. That being so, I hope your Lordships will agree to this Amendment. Further, so far as my co-religionists are concerned, it is the rule that in the case of a mixed marriage there shall be an agreement respecting the religion of the children. That agreement has no legal force, and is not binding in any way, nor does the allusion made to it in this Amendment give it any legal force whatever. Still, I think there may be cases of difficulty and dispute as to the religion of children, and if such cases do arise the Judge might well take into consideration any such agreement that has been previously come to, and it should be left to his decision as to whether he will act upon it or not. I understand that when a similar measure was before the Committee presided over by my noble friend Lord Banbury of Southam, an Amendment of this character was brought forward and it was intended by the Committee that it should be incorporated in the Bill. Therefore, if that Bill had matured we should have it now in the Bill.

Amendment moved— Page 1, line 25, after ("father") insert the said new proviso.—(Viscount FitzAlan of Derwent.)

LORD CARSON

Personally, I doubt whether this Amendment is germane to the clause at all. The clause merely fixes the principle relating to the custody and upbringing of children, and says that there should be no more preference to the father than to the mother, or to the mother than to the father. I cannot see how the question of religion is germane. Assuming that it is, I suggest to the Lord Chancellor that it is entirely out of order, having regard to the Amendment that has just been passed. It would not fit in with that Amendment, which I think rightly enacts that the one consideration in deciding the question of guardianship is that the Court shall have regard to "the welfare of the infant as the first and paramount consideration." If that is to be the first and paramount consideration, how are you to bring up, in the determination of that question, agreements which may have, been entered into under entirely different circumstances, and where it would be impossible to carry out those agreements without in many cases disturbing the settled views and settled religious principles which have been inculcated in the upbringing of the child?

An agreement may have been entered into at the time of marriage, but events may have happened which have led to the children being brought up, some in one religion and some in another, contrary to that agreement. Some of the children may have been brought up in one way and some in another, and the Court may be called upon to separate the guardianship of those children, although they are of one family, in consequence of an agreement which is entirely out-of-date at the time when the matter has to be settled. So long as you leave it to the Court to determine, and determine as the "first and paramount consideration," the welfare of the child, all such questions as these would be carefully considered, but to bind the Court down by an agreement, which may be entirely out-of-date, would really take away all the force of the Amendment you have just passed.

VISCOUNT FITZALAN OF DERWENT

May I point out to the noble and learned Lord that the Amendment does not bind the Court? It only calls attention to this matter.

THE LORD CHANCELLOR

The noble and learned Lord has, I think, put his finger on the crucial difficulty in this Amendment. The purpose of the Bill is to provide the principle on which questions relating to the custody and upbringing of children are to be determined, and it lays down this principle, now that Lord Cave's Amendment has been passed, that what is to be looked at is the welfare of the child, not as the only consideration but as the principal consideration in the matter. The Amendment, the sincerity of which one appreciates and recognises, provides something that is concerned only with religious education. If you are going to specify, you must specify a great deal more than that. You specify the well-being of the child as the paramount consideration, but if, after that, you are going into a variety of subjects, you are undoing the advantage you have in laying down the general principle in the Bill. If you introduce one subject by itself—religion—the Judge who is to deal with the matter naturally asks why it has been put in. And if there is an agreement that the child is to be brought up, let us say, as a Mahomedan—an agreement entered into before marriage—the learned Judge will feel that he has to look at that agreement in a special way.

No doubt, you are to look at the well-being of the child, but if you are specially told to take into consideration the wishes of the parents so far as they have been ascertained in regard to religious education, that is something which any Judge would look at as cutting down to some extent the general principle of the Bill. I see nothing but endless difficulty if this Amendment is put in. It is surely the best course to take the general principle as laid down in the words of the noble and learned Viscount's Amendment and make the well-being of the child the first consideration. It is then possible to look at all the circumstances of the case, take into consideration any such agreement as was mentioned by the noble Viscount, so far as it affects the well-being of the child, and leave the Judge perfectly free. I hope the noble Viscount will not press the Amendment.

On Question, Amendment negatived.

LORD RAGLAN moved to add the following proviso:— provided that when the Court is in doubt as to the direction in which the welfare of the infant lies it shall in the case of a boy incline to the opinion of the father and in that of a girl to the opinion of the mother.''

The noble Lord said: This Amendment differs from that which your Lordships have just rejected in that it makes no attempt to fetter the discretion of the Court. It is merely intended to give them assistance in questions of difficulty. I listened very carefully to the Second Reading debate, and it appeared from the speeches of several noble Lords that the Court might find itself in considerable difficulty in certain cases. They might have to decide whether it would conduce to the welfare of the child that lie should be educated at Oxford or Cambridge, or whether he should be brought up as a Baptist or a Primitive Methodist. In these cases I think it would be much better to have recourse to what I may describe as the old established principle, that in questions affecting boys the father is the best judge and in questions affecting girls the mother is the best judge.

Amendment moved— Page 1, line 25, after ("father") insert the said new proviso.—(Lord Raglan.)

THE LORD CHANCELLOR

If the last Amendment was a difficult one this is much more difficult. Conceive the position of a County Court Judge. He asks in the first place: "Am I in doubt?" If you put a question like that you always find that there is some element of doubt. Then he says: "What am I to do.' Am I to look at the father?" He may not be a good person to look at, but the learned Judge says: "If it is a boy I am to incline to the opinion of the father about the disputed question, and, if it is a girl, I am to incline to the opinion of the mother." Really Judges are sensible people, and I think one may leave them alone without any such statutory direction as that they are to incline in one way or another if they find themselves in doubt, as they unquestionably will if they are encouraged to he in doubt. I would respectfully suggest, to the noble Lord that this is not a good Amendment to press.

LORD RAGLAN

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause I, as amended, agreed to.

Clause 2 agreed to.

Clause 3:

Amendment of 49 & 50 Vict. c. 27. s. 5 with respect to the custody and maintenance of infants.

3.—(1) The power of the Court under Section five of the Guardianship of Infants Act, 1886, to make an order as to the custody of an infant and the right of access thereto may be exercised notwithstanding that the mother of the infant is then residing with the father of the infant.

(2) Where the Court under the said section as so amended makes an order giving the custody of the infant to the mother, then, whether or not the mother is then residing with the father, the Court may further order that the father shall pay to the mother toward" the maintenance of the infant such weekly or other periodical sum as the Court, having regard to the means of the father, may think reasonable.

(3) Where at the time when any such order whether for custody or maintenance is made the mother is residing with the father of the infant, the order shall not be enforceable whilst she so continues to reside with him.

(4) Any order so made may, on the application either of the father or the mother of the infant, be varied or discharged by a subsequent order.

VISCOUNT CAVE moved to leave out Clause 3. The noble Viscount said: I have put down upon the Paper, purely on my own behalf, a proposal to reject this clause, because I thought it desirable to give those in charge of the Bill notice that we should desire some explanation of its meaning and purpose. It is, to me, rather a difficult and perplexing clause. What the clause proposes, as I understand it, is that while husband and wife are still living together in one house it shall be open to the wife to apply to the Court for directions as to the custody of the child and, further, to ask the Court to order the father to pay a weekly sum to the wife for the maintenance of that child. If the section stopped there it would create a somewhat absurd position, for you would have a household in which, in fact, the custody of the child was in the father but, under the order of the Court, some other arrangement was made, and the whole thing would be absurd.

But the clause does not stop there, for it provides that such an order shall have no effect so long as the parents continue to live together. I admit that this improves the proposal, but I still see grave difficulties in the way. In the first place, this kind of question would arise only where there were differences between husband and wife, and the wife who, while continuing to live with her husband, makes this kind of application and obtains an order for him to pay money, for disobedience to which order he may perhaps in time be sent to prison, does incur a somewhat serious risk. This is not an imaginary suggestion for, at the time when the previous Bill was before the Select Committee, it was strongly urged on the part of the Home Office that we were putting upon a mother too great a risk by inviting her to make this kind of application to the Court while she was still living in the same house with her husband.

In the next place, this kind of order would surely create a very strange position in a household. It would be a cause of friction, and you would have put into the hands of a wife who is still part of the household a weapon which she could use, and I dare say from time to time would use, against her husband in a somewhat novel way. She would tell him: "I have got this order which compels you to give up your child and to pay me so much a week out of your earnings and which I can enforce by a strict process of the Court, and, if you do not do what I say in this way or that, I shall enforce the order." I do not think that this is quite a fair position in which to put a father.

The third point which I wish to make is that you are putting a premium on separation. If you are going to give a wife an order contingent on her leaving her husband I think you will put an inducement before her to separate from her husband. Instead of doing that which, in my experience, all the Courts try to do and keeping husband and wife together, you are really taking a step which may force them apart. Those are, I think, serious considerations, and I should like to know what is the answer to them. I was told a little time ago that this clause was a compromise. I am always rather afraid of compromises, especially in matters affecting children, but I do not think that it is much of a compromise, because I read only yesterday, I think, a report of a meeting of a very important association connected with what is called the women's movement in which an important speaker said that this Bill was of no use at all and that they certainly did not accept it as any answer to their demands. If, therefore, this is a compromise, it is a compromise on one side only, and is not accepted by both sides.

I am not at all obstinate in this matter, and if I can be persuaded that there is some good reason for this clause, and that it will work, I do not, of course, want to press my own views against the views of other people; but as matters stand to-day I do see great danger in the clause. I will add this: I am thinking of the child and of the harmony in the house; I am not thinking so much about this equality between two persons who never could be exactly alike which people are always pursuing. I read with some regret the Preamble to the Bill, because I am sorry that the question of children's welfare should be used as a means for following cut this theory of equality. I am all for fair treatment of both sexes, but I think, in this matter, that it is the child that we must think of, and not any theory which one association or another may hold.

Amendment moved— Page 2, lines 4 to 24, leave out Clause 3.—(Viscount Cave.)

THE EARL OF WEMYSS

I wish to express an earnest hope that the noble and learned Viscount will not press this Amendment. I am sure that if he had devoted as many hours as I have to the Committees which prepared the way for this Bill he would share my sentiments and do nothing to destroy the compromise at which we arrived. To eliminate Clause 3 is not only to take away a very important clause but to take away that which, in my opinion, is the one real justification for the introduction of this Bill. It is only fair to confess that many of us who were on the Committees fell that many of the grievances that were brought forward to justify the introduction of a Guardianship of Infants Bill were illusory, that they were more sentimental than practical, and were really brought forward as part of the policy of equal citizenship and a desire for the impossible ideal of absolute equality between the sexes. But I think we wore all agreed that it had been proved to us that the laws of maintenance and custody were unfair upon women at the present time, and I think that every single member of both Committees—I do not even except the noble Earl, Lord Onslow, who may have wished to see the proposal amended—felt that something ought to be done. I will go further and say that even men like Sir Chartres Biron and Sir Paul Lawrence, who objected in toto to the principle of equal guardianship, admitted, so far as I remember, that some improvement should be made in the laws of maintenance.

The noble and learned Viscount drew a picture of one side of the medal, and it is quite true that anything of this kind might be open to the objections that he put. But these objections have been pointed out to women, and they are prepared to accept the risk. There is another side of the medal. Take a woman who is married to a brute who neglects her, illtreats her and half starves her. She has no money, and has no other home to which to go. What is she to do? She has to choose between semi-starvation with her husband or complete starvation without him. The noble Viscount said he did not like this Bill because it was a compromise and had not been accepted by women as a whole. I venture to say to the noble Viscount that I do not think he is quite acquainted with the facts. It is true that women who belong to the extreme societies do not accept it, but these are only one or two groups, and as a whole I think women responsible for the organisation of women have accepted the Bill as a compromise, which certainly falls short of what they had hoped for but by which they are willing to abide. People outside them may be almost neglected, and if your Lordships pass the Bill without amendment it will remove a difficult question from practical politics. Therefore, I hope that the noble Viscount will see his way not to press his Amendment.

EARL BEAUCHAMP

My Lords, I should like to reinforce what has been said by the noble Earl. I do not speak from the point of view of sex equality, but I venture to hope that in this case the noble Viscount in charge of the Bill will adhere to the Bill as it stands. We are dealing with imperfect people in an imperfect world, and it is extraordinarily difficult, I think, to lay down in the clauses of a Bill the exact phrase which will suit each case which comes before the Courts. As I understand it, the object of this clause is really to keep the home together. I am sure that the noble Viscount does not look forward to the exercise of this power by an unfortunate woman, but it is a power in reserve so that a man who is behaving badly shall know that the woman has this power and is able to go to the Court and obtain an order. If he amends his ways and behaves better then the order under Clause 3 is not put into active operation, because the husband and wife are continuing to reside together and the man, presumably, is behaving better. As I say, there are two stages in the matter and the man has two chances of behaving better. Therefore, being an old-fashioned person and thinking it better for the children to have a father as well as a mother in the house, I think it is more likely to prevent the, evil father from continuing in his bad ways, and I hope the noble Viscount in charge of the Bill will adhere to the clause.

THE EARL OF ONSLOW

As my name has been mentioned perhaps I may be allowed to explain what I think was the view taken by other members of the two Committees which sat to consider the Bill during last Session and the Session before. With the first Committee I need not deal. The second Committee heard all the evidence on the subject and then Lord Wemyss drafted a very able Report with which I find myself in agreement on general principles. There were, however, one or two provisions to which I had ventured to put down Amendments. I thought that if provision was made for orders of the courts of summary jurisdiction for payment by the man to his wife of a weekly sum while she was still living with him it might lead to domestic trouble and perhaps violence. I therefore put down an Amendment, and the Committee, for the reasons which I gave, hesitated to propose a change in the law in that direction. When, however, we had considered as far as Clause 9 or 10 an Amendment was moved which changed the main principle of the Report to a considerable extent, and the result was that further consideration of the draft Report was proposed. Then, owing to the General Election, we never considered the Report further, and the Bill lapsed with Parliament, and my Amendment was never considered by the Committee.

I based that Amendment on the views very strongly expressed by Sir Ernley Blackwell of the Home Office, who told us that out of ninety-nine cases of wife murder during the years 1901 to 1922, eighteen were connected with the question of obtaining separation orders. He also said there were many cases in which juries have found verdicts of manslaughter and others of causing serious bodily harm to women. A Bill was before the House of Commons last Session, and I think it has now passed the other House, and has reached this House, dealing with an amendment of the Summary Jurisdiction (Married Women) Act of 1895. As Lord Wemyss says, under the Common Law, before a woman can make an application for a separation order, she must have left her husband. This has prevented a large number of women from making applications, because they have no other place to go to, and I think everybody is agreed that on this question of separation a woman should be allowed to remain in her husband's house until she has made application. That is what this Bill will make possible. This question of maintenance, however, is a separate one. Not having heard what the noble and learned Viscount will say in reply. I agree with what has been said by my noble and learned friend behind me, and if he were to press the matter I think I should support him in going to a Division.

LORD ASKWITH

Having had charge of the two Bills previously before the House I should like to endorse what was said by the Chairman of the Committee. This is a compromise really between those who considered that maintenance should be given to the wife while living with her husband under the same roof, and those who thought that that would create difficulty, but that a wife, before the separation, should know what maintenance she was likely to have. There are instances of difficulty arising owing to a woman who has had a cruel husband being unable to get an order unless she has first separated from her husband. She is then without means, perhaps, to go to another home, if she could get one. She is without her children, and the man will not receive her back, and the home is broken up even if she fails to get an order. Therefore, she has been put in an exceptional position, in which she suffers very great hardship.

It is the last part of Clause 3 to which I think Lord Cave has alluded in his remarks. But supposing that Clause 4 is passed, under subsection (4) of that clause after the woman's death an order may be made for payment to the guardian towards a child's maintenance, although, while the woman is alive, she is precluded from having any maintenance without first separating from her husband. Lord Onslow alluded to a Bill which has passed through the House of Commons without any amendment on this particular matter. Clause (3) says that where any order is made it will not be enforced while a married woman continues to reside with her husband. The House of Commons in that Bill endorsed the principle that such orders for maintenance might be obtained while a woman still resides with her husband, which would give her an opportunity of getting justice without first breaking up her home.

LORD BANBURY OF SOUTHAM

My Lords, I earnestly hope that my noble and learned friend will adhere to his Amendment. I do not understand the point of view of the noble Lord who has just sat down. So far as my experience goes, the position at present is a very simple one. If a woman is ill-treated by her husband, and her husband is, in her opinion, unfit to have the custody of the children, all that is necessary is for her to go before a court of summary jurisdiction and ask for a separation order, coupled with the custody of the children. Only a fortnight ago I was chairman of a bench of magistrates before which a woman came and asked for a separation order because her husband had cruelly treated her. We listened to the case and came to the conclusion that she had been badly treated by her husband. We asked her whether she was quite determined not to go back to her husband. The bench of magistrates with which I am connected nearly always, before coming to a decision, tries to see if it cannot reconcile the parties and keep the home together. This woman, in a very determined voice, told me that she was not prepared to go back to her husband. We therefore gave her a separation order and the custody of the two children, and, having ascertained the means of the father, we made an order for what we thought to be a proper amount for the father to pay.

In these circumstances why alter the law? Why say that, though a woman is living with her husband, she may go before a Court? She will have to prove that he has treated her badly, that he is not fit for the custody of his own children, and she will demand that a payment be made by him to her, and then she has to go back and live with her husband. I suppose the majority of your Lordships are married men. Picture to yourselves what would happen if such a thing were to occur in your own households. At once a bone of discord would be introduced between husband and wife, and the probability, if not the certainty, would be that a separation would at once ensue.

I listened with great attention to the speech made by the noble Earl, Lord Wemyss. I understood him to say that when he was acting as Chairman of a Committee a certain number of women connected with various women's institutions gave evidence before him, that they had very many illusions, that their chief desire was to have equality of the sexes, and that something must be done. I believe that he was absolutely right in giving the reason for the introduction of this Bill. It is not because the Bill is wanted, it is not because this clause is a good one; it is because a lot of women, having formed themselves into a society, must have something to do to justify the existence of the society, and the payment of a secretary. Therefore they say: "We must have equality of the sexes," and they bring forward ideas which probably some female friend of theirs has put into their heads, some other female friend having first imparted it to her, and that idea has probably been transmogrified during its passage from one woman to another. Having formed the society and having come to the conclusion that something must be done, they bring forward a Bill in Parliament.

Your Lordships will remember that only a few days ago the noble Earl, Lord Birkenhead, in describing a speech made by the noble and learned Viscount on the Woolsack, said that what he gathered that the Lord Chancellor desired was that something must be done, and he characterised the frame of mind of those people who said that "something must be done" by saying that they did not in the least know what ought to be done, or what they wanted to be done, but they felt that something must be done, and therefore they brought forward a Bill, which we rejected by a large majority only yesterday afternoon.

LORD BUCKMASTER

My Lords, whatever may be the reasons against this clause, surely those advanced by the noble Lord who has just sat down can hardly be regarded as cogent or convincing. My reason for saying that is this. He starts by comparing the position of a woman if this Bill were passed with the position which she holds to-day, and he seems to have overlooked the fact that at the present moment separation orders cannot be granted by a court of summary jurisdiction, except for persistent cruelty and, I think the words are, "wilful neglect." But this Bill contemplates that a woman may be prepared to live with her husband notwithstanding that causes exist which might entitle her either to a separation or to a divorce, and noble Lords who have from time to time opposed the provision contained in my Bill for divorce on more extended grounds can hardly support the noble Lord when he suggests that the right course for a woman to take in order to obtain her rights is to separate herself from her husband, and then apply to the magistrates for relief. It seems an extraordinary argument to be advanced by any one who says that the real desire of the bench of magistrates over which he presides is to maintain the unity of the family, and to prevent the husband and wife from separating. The noble Lord talked of these associations of women, of whom I know nothing at all—

LORD BANBURY OF SOUTHAM

Neither do I.

LORD BUCKMASTER

Then, if you know nothing whatever about them, why do you suggest that they are responsible for this Bill? And why do you suggest that in the introduction and support of this Bill people are being influenced by a variety of uninfluential opinion, formed by women who meet together for the purpose of doing nothing except discuss abstract laws. Behind this Bill, as I read it, there is a real feeling that a woman who is living with her husband may frequently find that his conduct, owing to drunkenness, violence, or other gross excess, renders him wholly unfit to have the custody of the children, to which by law he is entitled, and this Bill, enables her to ask the Court to decide the circumstances so that that custody should be hers or his. What is there that is contrary to any principle of reason or justice in such a provision as that? Further, the woman cannot get maintenance excepting under this Bill, and she cannot get maintenance if at the time when she applies, she is resident with her husband. She can only get maintenance at the time she is separated from him. I sincerely hope that your Lordships will not cut out of this Bill what appears to me to be one of its most valuable provisions

VISCOUNT ASTOR

My Lords, I should like to support what has just been said. I understood from the noble Viscount, Lord Cave, that his desire, as I am sure it is the desire of all your Lordships, is to keep the home together. I venture to suggest that we are far more likely to keep the home together, and not to break it up, if the wife is not compelled to leave the home before she can make her application for maintenance. What happens now is that the woman has to leave the home before making her application for maintenance. If she fails, she has neither maintenance nor home. In addition to that, in many cases I understand that the lawyers of the husband bring a charge of desertion against the woman for having left her homo. I venture to suggest that we are far more likely to keep the home together if this Amendment is not pressed. The noble Lord, Lord Banbury of Southam, referred to the support which the Bill with Clause 3 in it was receiving from women's organisations. He said that he did not know the personnel of these organisations. I can assure him that most of them have plenty to do without taking up your Lordships' time where there is no justification for legislation. They are very able women in touch with many of the human tragedies of life, and in their opinion the home is far more likely to be maintained if Clause 3 remains in the Bill. I venture to hope, therefore, that the noble and learned Viscount will not press his Amendment.

LORD BANBURY OF SOUTHAM

The noble and learned Lord, Lord Buckmaster, is apparently also of opinion that women's associations are at the bottom of the Bill—which is of interest.

LORD TERRINGTON

As a member of the Committee which sat on this subject, I should like to assure the noble Lord, Lord Banbury of Southam, that, apart from the earnest body of women whose evidence we took, there was strong evidence from other people. I entirely endorse what the noble Earl. Lord Wemyss, has said about the Committee, and I consider Clause 3 is absolutely vital to the Bill.

THE LORD CHANCELLOR

We have listened to an important and interesting debate—important because of the contributions made by various noble Lords, and interesting in the way in which the discussion has developed. It began with a most reasonable speech from the noble and learned Viscount opposite, in which he said: "I want to know what this means." He made a speech which, perhaps, would have been more appropriate on Second Reading, but certainly was not out of place in Committee. It was, however, a speech which went to a principle which was essentially a Second Reading principle of this Bill. Then, as the debate went on, the noble Lord, Lord Banbury of Southam, entered upon the scene, and with him an objection to a desire to do something in general (a very reasonable form of criticism) developed, on this as on former occasions, to an insistence that we should do nothing. He wants to get rid of the principle altogether by doing nothing. I am glad that I have not misinterpreted him; but that is a very different attitude to that adopted by the noble and learned Viscount opposite, and is a very remarkable development of the noble and learned Viscount's attitude.

When you tome to the Bill the real difficulty was well illustrated by the noble Earl, Lord Wemyss. Your Lordships may not know the amount of work which it fell to Lord Wemyss to put into the Committee which sat on this subject. He performed herculean labours which, in the end, led to a Report with which nobody agreed. At the same time, it was ii Report which contained the root upon which they were all converging, and it has been a very valuable piece of information in the preparation of this Bill.

I will tell your Lordships exactly why this Bill assumes its present form. First of all, let us see what the Bill is. It is a Bill to amend the law relating to the guardianship of infants. It is not a Bill which deals with separation orders. It is not a Bill which deals with questions of the direct kind between husband and wife. It is a Bill in the interests of the infant, and the principle is the principle which is embodied in the Amendment of Lord Cave which we accepted, that the interest of the infant is to be not necessarily the exclusive consideration, but the paramount consideration. When yon come to the question with which Clause 3 deals, it was well put by my noble and learned friend Lord Buck-master. A husband and wife may he on a very unsatisfactory footing so far as the conduct of the husband is concerned, and yet the wife may be devotedly-attached to him and may not wish to leave him. She may feel that if she leaves him he will break up the home. Yet his conduct may be such that she cannot get out of him maintenance for her child.

This Bill enables her in such a case to go to a court of summary jurisdiction or any other Court to get an order that he is to contribute so much for the maintenance of the child. The custody of the child may, in the interests of the child, be given to her, and it may fall to her to apply the money so obtained. But the Bill provides that the intervention of the. Court shall be an intervention which is to be in the interests of the child so far as the custody of the child is to be with the mother, and is to have only moral weight so long as the husband and wife continue to live together. If the wife continues to remain with her husband and to hold to him she is not to enforce the order. If she did it is very likely that the family might be broken up. But she will have the order saying what, in the opinion of the Court, she ought to spend on the infant and what should be furnished by the father. She will know that if things get so bad that she can bear it no longer she may go. She will have got this order and the custody of the child.

That is a proposition that cannot be easily combated. It is true that associations of vigorously-minded ladies complain of this Bill that it is a miserable compromise. They say that they do not want it, that they want something better, something which would astonish the noble Lord, Lord Banbury of Southam, if ho could not prevent them from obtaining it. They put their objection to it on the ground that the Bill does not do nearly enough. Then there are others who have objections to this clause. But it was seen, as Lord Ask with pointed out to your Lordships, that it was necessary to come to some adjustment between those two views. I do not like to call it a compromise because it is really an adjustment. The adjustment reached was that which is seen in Cause 3. The matter was negotiated in the House of Commons by representatives not of one party but of various parties. This agreement was come to and unanimously accepted by the House of Commons, and the view taken by the Government was that, although the matter was delicate in the extreme, t his was a very useful clause and one which would probably lead to an improvement in the position of the child in such unhappy family circumstances as those to which I referred.

It is for that reason that the clause assumes its present form. It is really vital to the Bill. If it was knocked out, I am afraid that it would really kill the Bill because there would no longer be anything in it on which there was convergence of opinion as there is at the present time. We are now in the happy position of having something definite which has been agreed, and I hope that the noble and learned Viscount will not press his Amendment.

VISCOUNT CAVE

I am glad that your Lordships have had this discussion. I am still in doubt about this clause, but in view of what has been said from all parts of your Lordships' House I will not press my Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4:

Power of father and mother to appoint testamentary guardians.

4.—(1) The father of an infant may by deed or will appoint any person to be guardian of the infant after his death.

(2) The mother of an infant may by deed or will appoint any person to be guardian of the infant after her death.

(3) Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the infant so long as the mother or father remains alive unless the mother or father objects to his so acting.

(4) If the mother or father so objects, or if the guardian so appointed as aforesaid considers that the mother or father is unfit to have the custody of the infant, the guardian may apply to the Court, and the Court may either refuse to make any order (in which case the mother or father shall remain sole guardian) or make an order that the guardian so appointed shall act jointly with the mother or father, or that he shall be sole guardian of the infant, and in the latter case may make such order regarding the custody of the infant and the right of access thereto of its mother or father as, having regard to the welfare of the infant, the Court may think fit, and may further order that the mother or father shall pay to the guardian towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the mother or father, the Court may consider reasonable.

(5) Where guardians are appointed by both parents, the guardians so appointed shall after the death of the surviving parent act jointly, and in the event of the joint guardians being unable to agree on any question affecting the welfare of the infant, either of them may apply to the Court for its direction, and the Court may make such order regarding the matters in difference as it may think proper.

(6) Section three of the Guardianship of Infants Act, 1886, is hereby repealed.

LORD BANBURY OF SOUTHAM moved to leave out Clause 4. The noble Lord said: This clause provides that the father of an infant may by deed or will appoint any person to be guardian of the infant after his death. The mother may do the same. Then the clause provides that Any guardian so appointed shall act jointly with the mother or father, as the case may be, of the infant so long as the mother or father remains alive unless the mother or father objects to his so acting. (4) If the mother or father so objects, or if the guardian so appointed as aforesaid considers that the mother or father is unfit to have the custody of the infant, the guardian may apply to the court, and the court may either refuse to make any order (in which case the mother or father shall remain sole guardians or make an order that the guardian so appointed shall act jointly with the mother or father, or that he shall be the sole guardian of the infant, and in the latter case may make such order regarding the custody of the infant and the right of access thereto of its mother or father as, having regard to the welfare of the infant, the court may think fit, and may further order that the mother or father shall pay to the guardian towards the maintenance of the infant such weekly other periodical sum as, having regard to the means of the mother or father, the court may consider reasonable. Where guardians are appointed by both parents that does not so much matter.

The effect of this clause, as I understand it, is this. You may have a mother who is, perhaps, a foolish woman. With all due deference to Lord Buckmaster, I think there are many foolish men, but there are quite as many foolish women. You may have a mother who is a foolish woman, who is spiteful, as many women are (much more so than men), and she may decide that, having had some difference with her husband about the education or about the career of her children, she will appoint a guardian. This guardian, after the mother's death, may haul the father before a Court. The guardian may have been another foolish woman—for I do not see that there is anything in the Bill to prevent that—and this woman may take the father before the Court, and the father may have to prove before that Court that he is a fit person to manage his own child or children. I really must say that if there was anything that was calculated to make the relations between husband and wife unhappy, it is a Bill with clauses of this sort.

The whole basis of the Bill is nothing more nor less than an absurd idea that for the future men and women must be equal. They are not equal, they never will be equal, they were not made equal, and you cannot make them equal. A Bill with clauses of this sort is only likely to cause friction between husband and wife, and to do everything which it is not supposed that it will do. I ask your Lordships to remember this. From time immemorial the father ha" been the head of the family, and I earnestly hope that for all time to come the father will remain the head of the family. That he does wrong sometimes is absolutely certain. Men are human, and they do wrong perhaps very often, but the general principle has been acted upon that the father should be head of the family. In any business or undertaking you must have a head.

If you are going to manage things by committees you will never do that well, and you cannot manage by a committee of two, because if they do not agree what is going to happen? If you are going to have committees you must have a committee of three, so that a majority may decide. I shall certainly go to a Division on this if I can get a Teller. I earnestly hope your Lordships may not be led away by sentimental desires on the part of any women, however excellent. I do not for a moment deny what Lord Astor said, that there are very clever women who have bound themselves together to improve this wicked world by taking all those rights which they have never had before, and by putting themselves on an equality with men. If we allow this kind of Bill to become law all we shall do is to east dissention between husband and wife and make families unhappy.

Amendment moved— Pages 2 and 3, leave out Clause, 4.—(Lord Banbury of Southam.)

LORD ASKWITH

I sincerely trust that the noble Lord who has just spoken will not have a Teller. When we were discussing the last Amendment he uttered strictures against women's societies of which he confessed he knew nothing. On this clause he has dealt with guardianship at will without, I think, having read the Guardianship of Infants Act, 1886. The effect of his Amendment is this, that by not allowing this clause you revive Section 3 of the Guardianship of Infants Act, 1886, which it is proposed to repeal. What does this clause do? The first part of it is the present law. The second part of it is that: the mother should have the same right as the father now has to appoint a guardian on her death. According to the law as laid down in 1886, she has a right, to appoint a guardian to act after her death, but only provisionally, and that appointment has to come before the Court, and the Court, if it finds that the father is an unfit person, may make an order as to the guardianship. The mother has, therefore, to intimate that she considers the father an unfit person, and so to brand the father in the eyes of her children, instead of having the opportunity, which the father has now, of appointing a guardian without having to bring that kind of stricture against her husband.

This clause gives the Court absolute power, for the welfare of the child, to decide what is the proper line on which guardianship should proceed, whether it should rest with the father alone, or the father and the guardian, or the guardian alone. That is the principle of the Bill. It also raises woman to the same position as man in natters of this kind. That is a principle to which my noble friend entirely objects. He denounced it on the Second Heading of the Bill, and he is pursuing it in his next two Amendments, with his consequential Amendment, which are intended to cut the whole of the Bill to pieces, and, in fact, to devitalise it in such a manner that it will not be a Bill at all.

LORD DARLING

I rise merely to ask a question of the noble and learned Viscount in charge of this Bill. So far as I can see there is nothing in the Bill which prevents the case that I feel might arise. This is what might happen. A woman may have separated from her husband on the ground of adultery, or upon any other ground, and she may make a will appointing a guardian to act with the father of the child. When she died the provisions of that will would come into operation. The person she appointed would probably be another woman. If she was living separate from her husband on the ground of adultery, or under a judicial separation order, she would, it appears to me, probably appoint a woman who would be thoroughly hostile to the husband, because she would dislike her husband. Is if contemplated that such a wife should be able to impose upon the husband, during the minority of the child, a woman guardian who would be absolutely hostile to that husband? I need hardly say that the converse of that might, arise, and it might be the man who would appoint a guardian who would be hostile to the mother. I only desire to be informed by the noble and learned Viscount how this matter stands, because it seems to me that, if that is possible under this clause, it is a most objectionable clause.

THE LORD CHANCELLOR

The answer to the noble and learned Lord is that subsection (4) provides for this case. It enables the Court to exercise discretion to get rid of the appointment of any such guardian, and gives the Court complete control over the circumstances. In such a case the appointment of a guardian would not be allowed for a moment to stand. As regards the main question raised by Lord Banbury of Southam, he made a thoroughly masculine with and speech and he concluded thoroughly masculine

Resolved in the affirmative, and Amendment disagreed to accordingly.

Clause 4 agreed to.

Clause 5 (On death of either parent without appointing guardian surviving parent to be guardian alone or jointly with others):

LORD BANBURY OF SOUTHAM

The Amendment which stands next upon the Paper in my name, to leave out subsections (2) and (3), is consequential upon that which has just been defeated, and consequently I do not move it.

Amendment. It was an Amendment all in the interest of the father paramount, but, unfortunately, that is a principle which the Second Reading of this Bill negatived. This is a Bill to provide for the guardianship of infants, and to allow that purpose to be cut down by such an Amendment as the omission of Clause 4 would be to stultify the Bill. I hope your Lordships will not accept the Amendment.

On Question: Whether Clause 4 shall stand part of the Bill?

Their Lordships divided: Contents, 70; Not-Contents, 6.

CONTENTS.
Haldane, V. (L. Chancellor.) Yarborough, E. Hawke, L.
Jessel, L.
Parmoor, L. (L. President.) Astor, V. Mendip, L. (V. Clifden.)
Bertie of Thame, V. Mildmay of Flete, L.
Argyll, D. Burnham, V. Mostyn, L.
Falmouth, V. Muir Mackenzie, L. [Teller.]
Bristol, M. Hutchinson, V. (E. Donoughmore.) Olivier, L.
Dufferin and Ava, M. Oxenfoord. L. (E. Stair.)
Lansdowne, M. Novar, V. Playfair, L.
Peel, V. Ponsonby, L. (E. Bessborough.)
Ancaster, E. Younger of Leckie, V.
Beauchamp, E. Rathcreedan, L.
Buxton, E. Southwark, L. Bp. Riddell, L.
Chesterfield, E. Ritchie of Dundee, L.
Clarendon, E. Arnold, L. Rowallan, L.
De La Warr, E. [Teller.] Askwith, L. St. Levan, L.
Denbigh, E. Balfour of Burleigh, L. Shandon, L.
Doncaster, E. (D. Buccleuch and Queensberry.) Biddulph, L. Stanmore, L.
Buckmaster, L. Strachie, L.
Eldon, E. Cawley, L. Stuart of Wortley, L.
Lindsey, E. Clinton, L. Terrington. L.
Liverpool, E. Crawshaw, L. Thomson, L.
Lucan, E. Darling, L. Treowen, L.
Malmesbury, E. Erskine, L. Wemyss, L. (E. Wemyss.)
Morton, E. Faringdon, L. Wharton, L.
Mount Edgcumbe, E. Harris, L. Wyfold, L.
Strafford, E. Hastings, L.
NOT-CONTENTS.
Ullswater, V. Lawrence, L. Raglan, L. [Teller.]
Banbury of Southam, L. [Teller.] Mowbray, L. Templemore, L.

Clause 5 agreed to.

Clause 6:

Extension of jurisdiction to Courts of summary jurisdiction.

6.—(1) For the purposes of the Guardianship of Infants Act, 1886, as amended by this Act, the expression "the Court" shall include a Court of summary jurisdiction:

Provided that a Court of summary jurisdiction shall not be competent—

  1. (a) to entertain any application under the Guardianship of infants Act, 1886, as so amended, relating to an infant who has attained the age of sixteen years, unless the infant is physically or mentally incapable of self support; or
    2. 373
  2. (b) to entertain any application involving the administration or application of any property belonging to or held in trust for an infant, or the income thereof: or
  3. (c) to award the payment of sums towards the maintenance of any infant exceeding twenty shillings a week.

(2) The Lord Chancellor may make rules regulating the procedure in Courts of summary jurisdiction under this section, and may by those rides make provision for enabling of applications to be heard and determined otherwise than in open Court

(3) Where on an application to a Court of summary jurisdiction under the Guardianship of Infants Act, 1886, as amended by this Act, the Court makes or refuses to make an order, an appeal shall, in accordance with rules of Court, lie to the High Court.

Provided that where any such application is made to a Court of summary jurisdiction, and the Court considers that the matter is one which would more conveniently be dealt with by the High Court, the Court of summary jurisdiction may refuse to make an order, and in such case no appeal shall lie to the High Court

(4) An order of a Court of summary jurisdiction for the payment of money under the Guardianship of Infants Act, 1886, as amended by this Act, shall be enforceable in like manner as an order for the payment of a civil debt recoverable summarily.

(5) This section shall not extend to Scotland.

LORD BANBURY OF SOUTHAM moved to leave out Clause G. The noble Lord said: This clause allows a court of summary jurisdiction to act instead of the High Court. It seemed to me that the magistrates were not always the best court to which cases of this sort should be submitted, and I thought it best to put down an Amendment in order that I might hear from the Lord Chancellor his opinion upon the matter.

Amendment moved— Pages 3 and 4, leave out Clause 6.—(Lord Banbury of Southam.)

THE LORD CHANCELLOR

I have a high opinion of the bench of magistrates, which has been heightened by listening to the noble Lord's description of the exactitude with which he presides over it when ho is there. I think the very essence of this Bill is to invoke the jurisdiction of the courts of summary jurisdiction, and it would really be to destroy the scheme of the Bill to exclude the magistrates from the working of it.

On Question, Amendment negatived.

Clause 6 agreed to.

Clause 7 agreed to.

Clause 8:

Consents required to marriage of infants.

(3) For the purposes of this section "the Court" has the same meaning as in the Guardianship of Infants Act, 138(5, as amended by this Act, and rules of Court may be made for enabling applications under this section—

  1. (a) if made to tie High Court to be heard in chambers;
  2. (b) if made to the County Court to be heard and determined by the Registrar subject to appeal to the judge;
  3. (c) if made to a Court of summary jurisdiction to be heard and determined otherwise than in open Court;
and shall provide that where an application is made in consequence of a refusal to give consent, notice of the application shall be served on the person who has so refused consent.

LORD BANBURY OF SOUTHAM moved to leave out paragraph (c) of subsection (3). The noble Lord said: I had put down an Amendment to leave out both paragraph (b) and paragraph (c), but I will confine it to paragraph (c), which says that rules may be made for enabling applications— if made to a Court of summary jurisdiction to be heard and determined otherwise than in open Court. I do not believe that it is a good thing to have all these cases heard in camera. If they are heard in camera there are a certain number of people who will come forward on the chance of getting a verdict, but if they are heard in open court these people are less likely to come forward, inasmuch as they do not wish to have their private affairs exposed. I hope that the Lord Chancellor will accept this Amendment which, at any rate, is not vital to the Bill, and has nothing to do with the equality of the sexes, but is merely a matter of procedure.

Amendment moved— Page 6, lines 20 to 22, leave out paragraph (e).—(Lord Banbury of Southam.)

THE LORD CHANCELLOR

If we were to accept this Amendment we should be putting a court of summary jurisdiction in a different position from that of every other Court. There are cases, though not very many, which come before the Courts in which it is highly inexpedient, for various reasons, that the details should be discussed in public. The Court is left a discretion which is very carefully guarded, and I think it is necessary to preserve that discretion—which is preserved to the High Court and the County Court—to the court of summary jurisdiction also.

On Question, Amendment negatived.

Clause 8 agreed to.

THE LORD CHANCELLOR moved, after Clause 8, to insert the following new clause: . In Scotland a father or mother acting as tutor of a pupil child by virtue of the common law or of the Guardianship of Infants Act, 1886, as amended by this Act, shall be deemed to be and always to have been a trustee within the meaning of the Trusts (Scotland) Act, 1921. The noble Viscount said: I move this Amendment at the request of the Lord Advocate. It is a technical Amendment but an important one. Under the law of Scotland a tutor, that is to say, a person who is guardian of an infant, is in the position of a trustee and treated as being in a fiduciary position, and that is the result of Statute. But the Statute will not cover the new cases of tutors under this Bill, and consequently I move this Amendment, to put them all upon the same footing and to declare that they are in a fiduciary position as regards the exercise of their powers. I think that this is obviously a reasonable' addition.

Amendment moved— Page 6, line 32, at end insert the said new clause.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 9 agreed to.

Schedule:

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