HL Deb 03 June 1924 vol 57 cc791-805

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR (VISCOUNT HALDANE)

My Lords, I can tell your Lordships very shortly what this Bill contains, but may I first say a few sentences about the law as it stands which is proposed to be amended? The Common Law of this country puts the father in the position which was the outcome of the general principle of the Roman law, under which he was the head of the unit called the family. He controlled that unit, and he had tremendous power not only over his wife, but also over his children. Over the children he had complete disposition so far as their nurture and upbringing were concerned. In the year 1886 your Lordships passed an Act called the Guardianship of Infants Act. By that Act the power of the father was put under a considerable measure of control.

To-day, it is proposed by this Bill to apply a very simple principle; that is, that the care and interest of the child shall be the first consideration. No Common Law provision as to the father's right is any longer to prevent the Court interfering if the infant is maltreated in any way. That principle is connected with another—namely, that the status of women has very much changed in the last twenty-five years. Recently it has been so changed that the woman has almost the same status as the man. She has not altogether the same status, because it is necessary to preserve the position of the family as a unit, and if you have a unit there must be a head to that unit. When you come to the interest of the child it is recognised as most important that the mother should be able to intervene and take care of the child with a power of doing good and preventing evil equal to that possessed by the father.

There came a time when there were various Bills before Parliament. There was one introduced by a member of your Lordships' House, which proposed to give various powers to the mother. That and other Bills raised the broad question, and the result was that the matter was referred to a Joint Committee of both Houses which was presided over by my noble friend Lord Wemyss. That Committee went into the subject and presently it became clear that all sorts of difficulties would emerge unless the simple principle which I have mentioned, or something akin to it, was accepted. It was impossible to determine the details and to say what the Court should do in the event of this and that quarrel between husband and wife without preventing the desired result, and in the end the Committee presided over by Lord Wemyss was unable to come to complete agreement. But a great deal of valuable information was brought to light in the course if its inquiries.

Next came the Bill proposed by Mrs. Wintringham, in the House of Commons. That was a very valuable Bill because of its simplicity. But there again the resort to the Court was made more extensive than seemed to be safe, in view of the circumstances which Lord Wemyss' Committee had brought to light. The consequence was that the Government, while strongly approving the principles of the Bill, invited Mrs. Wintringham to come into consultation with a view of shaping a Bill. The result of those consultations is this Bill, which is the outcome of prolonged conversations with various persons interested in the subject.

The Bill is a very simple one. It does not go into detail, but it lays down the principle which governs the detail. The principle is that the interest of the child is to be paramount. Your Lordships will find that in Clause 1, which provides that the Court, in deciding the question as to 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, 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 the 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. That is the principle, and it is an advance on the principle of the Act of 1886, which left to the Court a very vaguely worded discretion in dealing with these things.

Under Clause 2 the mother has, of course, the same power of applying to the Court in respect of any matter affecting the infant as the father. Then Clause 3 provides that— The power of the Court. … 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. At Common Law the father could bar the mother from such action altogether if she was living with him. Subsection (2) says: 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 towards 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. Then there is this provision in subsection (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. Therein lies the difference between this Bill and the Bill brought before the House of Commons by Mrs. Wintringham.

Under Mrs. Wintringham's Bill, if the father was supporting the mother and was not giving her enough for the purpose, she could come before the Court and ask for an order to be made enabling his wages to be attached, if necessary. In the circumstances the husband could probably get round the order. The way it worked out in the negotiations was this. It was said that it is quite right that the mother should be able to apply to a Court so that the Court may say what is a proper sum to be awarded for maintenance, but it does not follow if the mother chooses to continue to reside with the father that she ought to be able to enforce that law. Therefore, it is provided that that order should not be enforced while they are living together. If things get so bad that the wife is bound to leave her husband then she has an order ready, and the question of the custody of the children is in the discretion of the Court, which is to have regard to all the circumstances in deciding who should have the custody of the children.

The Bill may be said to do four things. In the first place, it lays down general principles and leaves the Court to work out the details in accordance with the circumstances of each individual case. In the second place, there is no power actually to apportion the husband's income while the husband and wife are living together, but a principle is laid down under which an order can be made that will take effect if the wife thinks it necessary to leave the husband. In the third place, the interest of the infant is to be looked at exclusively in judging what is right to be done; and, in the fourth place, there is given to the wife what I think is quite right—the husband already has it—namely, power to appoint a guardian by will. If she does that then that guardian will be guardian jointly with the father, and if they do not agree the Court will settle who is to prevail. That is the whole Bill. I am far from saying that it is a Bill which someone might not be able to make better. It is too difficult a subject for any one to say that a better Bill might not be made, but with this difficult subject those of us who have been concerned in the matter, after exercising all the ingenuity and skill we could bring to bear, have come to the conclusion that this is the simplest way of dealing with the matter. We think this is a measure that will work, one that will remove a great injustice, and one that will tend to satisfy public opinion. On those grounds I venture to commend it to your Lordships' consideration, and I now move that the Bill be read a second time.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

THE EARL OF WEMYSS

My Lords, having been Chairman of two Joint Parliamentary Committees which dealt with the question of the guardianship of infants, and having listened to a large amount of evidence, most of it twice over, I hope your Lordships will allow me to say a few words on the Bill which the noble Viscount has introduced. I may say that the two Joint Parliamentary Committees over which I presided showed considerably more vitality than the Parliaments which appointed them, because the first Committee had not concluded its evidence when the Parliament that appointed it expired, and the second Parliamentary Committee had listened to the evidence and was bringing up its Report when the second Dissolution of Parliament came about. But, as the noble Viscount has told your Lordships, our labours were not altogether in vain. It would be idle to deny, I think, that the first Bill which we considered was frankly impossible. Had it been introduced to this House it would have been riddled with ridicule and killed at once. The second Bill was a great improvement on the first. It is a fact that the promoters of that Bill showed a very reasonable spirit and a great anxiety to meet difficulties and to come to a compromise. Although the grievances complained of were mainly sentimental, there undoubtedly were a good many instances of real grievances, and, of course, these might have been increased.

These were the reasons which impelled me to be anxious to see whether the Committee could not arrive at some practical scheme which might carry out as far as possible the wishes of the promoters. I, therefore, drafted a Report which I had hoped might meet with the approval of the Committee. I am sorry to say that it did not. but after a conference with Lord Askwith—and I hope he will allow me to say that he never showed more conspicuously those qualities of skilful negotiation and conciliation for which he is notable than he did on that occasion—I came to the conclusion that our differences were more apparent than real, and that we might easily have built a bridge over which we could have unitedly walked to the other side, and passed all that was good in the Bill. But it so happened that Parliament came to an end and the Bill could not go on.

I think I may say, however, that our labours were not in vain, because this Bill practically embodies the compromise that we should have arrived at, and really carries out, in the main, the recommendations in my draft Report. The Bill of the Government does away, in my humble opinion, with all the objectionable features of the original measure. It removes all those fertile opportunities for domestic differences with which both the other Bills bristled. It gives to the Courts the power of deciding questions solely in the interest of the child. The differences between the parents do not affect the Court. What they have to decide is what is the interest of the child, and it is that which we all agree is desirable.

It carries on that parental jurisdiction over the children which the Chancery Courts have always carried on, and, as far as possible, it extends it to the inferior courts. The Lord Chancellor did not tell us how far the Chancery Judges are reconciled to this Bill. Mr. Justice P. O. Lawrence, whom we heard, was very much against the Bill, and most of his colleagues, I think, were also; but I really think, although I have had no opportunity of conferring with him, that most of his objections are met by the Bill. Then again, the Stipendiary Magistrates, and Sir Chartres Biron in particular, were very much against the Bill, though it is only fair to say that Mr. Chapman was very much in its favour. Still, the large majority of the Magistrates were against it, and I should have liked to have heard that, their opposition had been removed.

There is one very important matter to which the noble Viscount alluded, and that is the question of granting maintenance allowance when parents are living together. Orders may not be enforced when they are living together. Sir Ernley Blackwell, who represented the Home Office before us, drew a very lurid picture of what had happened, and what might happen. He told us that a very large proportion of the murder cases that had been tried had to do with the separation laws, that if many of them were not caused by those laws, at all events the question of separation was a factor in them, and he drew a most alarming picture of what might happen if this were extended to maintenance, implying rather that there might be a general massacre of wives if this were passed. I do not know how far his opposition has been met, but I think that so long as the women's societies are unanimously in favour of this clause, as they are, knowing and having had pointed out to them the perils they may incur under it, and if they are still prepared to face those perils, then we ought to allow them to do so. Therefore I shall support that clause.

I do not think there is very much else in the Bill to which I need allude. Personally, I am in favour of the measure. So far as I can see it does not require very much alteration. After all, we must remember that we have given equal rights to women in most respects. We have given them the Parliamentary franchise, and if what I hear is true they will in a short time have such a majority of votes that if they organise we shall be under their control. If that is the case, it is surely straining at a gnat to try to refuse them the right of joint control over their children—a right that nature and, I think, reason urges. Really we ought to be grateful to them that in their strength they are merciful, and, although having a majority of numbers, do not claim full control over their children. I am glad, as the Chairman of the Committee, that our labours have not been in vain. I hope this Bill may pass into law and remove grievances which, although they have been exaggerated, undoubtedly do exist and might otherwise continue to exist.

LORD ASKWITH

My Lords, the principle of this Bill is like an egg which your Lordships have been trying to hatch for two or three years. Twice in the case of analogous Bills which I introduced this House has agreed to the Second Reading and sent the Bill to a Joint Committee. Twice has that Joint Committee heard evidence at enormous length; it had to be gone through over again because the members of the other House are not so permanent as members of this House. When probably another meeting might have led to an arrangement there came the Dissolution of Parliament. Finally, a Bill was introduced in another place. It was discussed at considerable length by the promoters hero and in another place, and by the officials of at least five Departments under the Solicitor-General. This Bill is the result of these Conferences. I endorse the view of the noble Earl who has just spoken and of the Lord Chan- cellor, and hope that it will pass into law. The noble and learned Viscount on the Woolsack alluded to the Guardianship of Infants Bill, 1886, as being a great alteration in the opinion of that time. Undoubtedly it was, but if it is read carefully it will be seen from the tone of it that there was an atmosphere of distrust as to what could be allowed to a woman in regard to her own children, and in regard to her power over her child after her death.

This Bill proposes to give a wife the power to name a guardian by will, not provisionally only but as a right, in the same way as it was given to the father under the Bill of 1886. But the Bill of 1886, although it made a considerable change in favour of women, confined it to certain classes of the community who alone could afford the expense of going to the High Court of Justice. Children are under the Equity jurisdiction of the Court of Chancery. This was extended in 1886 so as to give it to the County Courts. But the County Courts have not the facilities for hearing these cases and, in fact, as far as the County Courts are concerned the Bill of 1886 was a dead letter. The present Bill proposes to give powers, and also powers under the Act of 1886, not only to the High Court of Justice and with revised conditions, to the County Courts, but, under certain limitations, to courts of summary jurisdiction. For the first time it gives to the masses of the women of this country the power to have something to say in regard to the welfare of their children. That is perhaps the greatest and most important innovation in the measure.

The principle of the Bill is this: that the question has to be determined when it comes into the Courts solely by consideration of the welfare of the child, and that in any evidence that is given no superiority is to be attributed to the father over the mother in the weight which that evidence is to have on the opinion of the Court. Further, whenever the father can apply to the Court in regard to anything relating to the custody or maintenance of his child, the mother is to have an equal right. There are clauses in regard to the registry of marriages with which the promoters of the Bill are not interested, but which I understand do take away a considerable hardship that existed.

Another alteration of an important character does get rid of a considerable hardship. At the present time an order for custody cannot be applied for by a woman unless she is separated from her husband. She cannot possibly obtain the custody of her children unless she leaves her home and from that distant point tries to obtain power over her children. Under this Bill she will have the right to apply for custody while she is still living with her husband, and the Court can determine what maintenance the husband ought to give towards the child, according to his means, if she leaves him. But that order is not to be enforceable as long as she stays under his roof. That is a compromise by which an endeavour is made to get rid of a dual authority which was considered to be one of the chief difficulties of previous Bills.

Some alteration is surely required in the law in regard to the principle from which it looks at the father and mother. The question has arisen in a great many cases. I am not going to trouble your Lordships with many legal cases, but I have one instance which shows that this is a grievance which should be considered. A case came up quite recently, and was decided by the House of Lords on May 6 last. It arose in the North of Ireland and was a question of religion. A man and woman were married and had three children. From an early time the father, a Catholic, gave way to habits of intemperance, and treated his wife with cruelty. He was dismissed from his employment as a traveller in Allsopp's Brewery, owing to his intemperate habits. He was found to be an habitual drunkard, and on several occasions the wife was compelled to take the children with her and seek protection in her parents' house. For many years she supported herself and the children without any financial assistance from her husband. At last, in June, 1920, she left him and took her children with her.

He took no further interest in them until his death in October, 1920, when he left a will in which he left a small amount of property and expressed a wish that his children should be brought up as Roman Catholics. The children had resided with the wife until May, 1923, but in April, 1923, the husband's sister, the aunt of the children, applied for a Writ of Habeas Corpus to bring the children up before the Court. The Lord Chief Justice of Northern Ireland and another Judge decided that only the eldest child should remain in the religion of her mother, and that the two other children were to be taken away, to be under the care of the paternal aunt and brought up as Roman Catholics. Under presumption of law consideration was not given to the welfare of the children so much as to the wish of the father as stated in this will, dated three years before this decision was arrived at, although the father had taken no interest in or care of his children up to the time of his death.

The mother appealed, and the Court of Appeal in Northern Ireland reversed the decision as regards the two youngest children, and affirmed it with regard to the eldest child. A further appeal—and consider the cost of all this!—was made to your Lordships' House, and my noble and learned friend Viscount Cave, in a judgment with every word of which I agree, affirmed the opinion which the Court of Appeal in Ireland had stated, that under the circumstances the welfare of the children ought to be paramount, that the girls ought not to be separated and brought up in different religions and different households, and that the welfare of the children was the rule by which this case ought to have been decided, although he had to say that in certain circumstances the law still was that the wishes of the father should have a paramount position. Under this Bill the father's wish or the mother's wish would have had an equal weight in the hearing, the Court would have looked at the matter from the point of view of the children only, and the case would have been decided solely in regard to the welfare of the children. I need not refer to the expense of a case of this kind going through three Courts and finally having to be decided by your Lordships' House. I think that this Bill will remove many causes of hardship, that it will bring the possibility of justice to a vast number of people who have suffered injustice, and that it might well receive the assent of your Lordships.

LORD BANBURY OF SOUTHAM

My Lords, it has been stated by the noble Earl that the Judges in the Court of Chancery and most of the Stipendiary Magistrates of London were against the Bill. He also said that women's societies were in favour of it, which, to my mind, does not carry very great weight.

THE EARL OF WEMYSS

Will the noble Lord allow me? I did not say that the Magistrates were opposed to this Bill, but only that they were opposed to the Bill which we considered, which is an entirely different matter.

LORD BANBURY OF SOUTHAM

Do I understand that the Judges are in favour of this Bill?

THE EARL OF WEMYSS

That I cannot tell you.

LORD BANBURY OF SOUTHAM

Then the Judges were opposed to the original Bill, and so were the Magistrates?

THE EARL OF WEMYSS

Some of the Magistrates. Mr. Chapman was very much in its favour.

LORD BANBURY OF SOUTHAM

So far as I remember what took place in the House of Commons on that occasion, there was one Magistrate, Mr. Chapman, who was in favour of it. So far, then, the Judges and the Magistrates have not pronounced an opinion on this Bill, but the women's societies are in favour of it. To my mind, the fact that the women's societies are in favour of it goes against the Bill. I have never known them to be right, in anything that they did. Most of them, I think, are composed of spinsters, and therefore they do not know very much about married life. The noble Lord who hats just sat down gave a case of great hardship, but I might point out to your Lordships that the result was a right one. The Judges gave the proper decision, and I do not think that it is desirable to alter the present law merely because there happens to be one hard case, and that in Ireland, where hard cases arise very often.

There is a clause in this Bill which does strike me as being an extremely bad one. I should like to say to your Lordships, first of all, that I quite recognise that there are a great many bad fathers in this world. There are also a great many bad mothers. So far as I can see, a mother who is not on good terms with her husband, and who may be quite wrong in the method by which she desires to bring up the children, might declare in her will that a certain person is to be the guardian of her children, and, if this Bill becomes law, the father cannot have the management of his own children. He must consult with the guardian appointed by his wife, with whom perhaps he did not get on and who may have been a foolish woman, and his control of his own children is taken away from him. I have always understood that family life is a great thing to maintain, that there should be a head of the family, and that the head should be the father. I hope that if this Bill receives a Second Reading, as no doubt it will, your Lordships will be careful, at any rate, to amend some of its worst features in Committee.

LORD TERRINGTON

My Lords, as a member of the two Committees which sat in two different Parliaments and were presided over by the noble Earl, Lord Wemyss, I should like to say that I thoroughly welcome this Bill as a compromise with regard to the difficulties which we then felt, but I would bring to your Lordships' notice, as has already been done, subsection (3) of Clause 3. The same difficulties still arise on this clause—namely that, although under this Bill the mother can obtain a custody and maintenance order whilst living with the husband, she cannot enforce it while she is living with him, and has therefore to leave him to obtain enforcement. That was one of the great troubles which were brought before the Committee in the last two Parliaments. Sir Ernley Blackwell, as has been mentioned, was brought in, I think at the instance of the Home Office, and he pictured the terrible results which would follow if the scope of separation orders were increased, but when it came to cross-examination—and I had the pleasure and honour of cross-examining him a great deal—I think he came down to about two instances to which wife murder could be traced in twenty or thirty years. I think that this clause should be given further consideration.

LORD PHILLIMORE

My Lords, I welcome Clauses 1, 2 and 4 of this measure, but I should like to say, as a Judge who for many years had to administer the law in the High Court, that I regard Clause 1 as only stating the law as it at present stands, and as I had occasion, as a Judge in the King's Bench Division, to administer it. I look upon Clause 3 as comical; there is no other word to use about it. The father and mother are to live in the same house, and the mother is to go round to a Police Magistrate and to see that she has the custody of the child. What does that mean, when they are both in the house? Does it mean that she is the only person to take it out walking, or to shut it up in a room if it is naughty? What can it mean? But notwithstanding that she gets an order that the father should pay for maintenance, she is not to be able to enforce it. As I say, I regard (he clause as comical as it is at present balanced. If it was unbalanced by taking away subsection (4) then I should regard it as mischievous. As it stands I think it may well be allowed to remain on the Statute Book, until it is found to have no effect and is repealed in some Statute Law Revision Act.

I would remind your Lordships that you are putting some difficulty in the way of marriages by Clause 8. At present, a child under age can be married by consent of the father, or, if the father is absent, under an order of the Court by consent of the mother. You are now requiring, if both parents are living together, the consent of both, and are thus putting further difficulty in the way of a minor child's marrying. It may be right, but I think your Lordships should consider the point. Then I beg your Lordships to reject paragraph (b) of subsection (3) of Clause 8, which gives to the registrar of the County Court the power of deciding these very delicate questions. Up to comparatively recently either the Lord Chancellor himself, or at least a Judge of the superior Courts, was the only person who could determine such delicate questions. If they are to go to the County Courts, so be it, although I think it is quite unnecessary, but if they are do not delegate them to a subordinate official such as the registrar, because if there is an appeal from the registrar there will be reluctance on the part of the Judge to vary his decision, when it is on a matter of discretion. I hope the registrar will not be given this power.

The noble Lord, Lord Askwith, spoke as if unless you went to the County Courts you could not bring this matter to the ordinary people of the country. I think he is entirely mistaken. As a Judge in Chambers I have had applications in this matter from the poorest people, many of whom have lived at some distance from London. I think there is no neces- sity for the County Court or the court of summary jurisdiction to have this jurisdiction, but at any rate do not give jurisdiction to the registrar.

THE MARQUESS OF SALISBURY

My Lords, we are in some difficulty in dealing with this subject, for the reason that, as Lord Wemyss explained to you, the Report upon which this legislation is founded, which really would give a guidance to us in the matter, is not in existence. Owing to the exigencies of the political crisis of the time the Report was never agreed to. I do not know whether the evidence which the two important Committees collected was ever laid before Parliament, but I gather that it was not. That is a very considerable handicap in arriving at a just conclusion upon the details of the Bill. But there are one or two principles contained in the Bill, to which, but for the speech of the noble and learned Lord, I should have thought we should all have agreed.

In the first place the interest of the child should be the predominant matter considered. That, the noble and learned Lord says, is already provided by the law. The other point is the element in the Bill that rich and poor should be placed upon absolute equality in access to proper judicial authority for the purpose of deciding what the interests and welfare of the children demand. The noble and learned Lord thinks that that is achieved already by leaving it in the hands of a Judge of the High Court. Lord Askwith takes a different view and thinks that unless the lesser Courts are allowed to have jurisdiction there is, in fact, a denial of justice in this matter to the poorer classes. I hardly like to express an opinion of my own, but I confess my feeling is rather with Lord Askwith in this matter. I do not believe that poor people living in all parts of the country have the knowledge, or the courage, or the enterprise, to approach the High Court in these smaller matters, and if you confine jurisdiction to the High Courts you do, in effect, deny them justice.

There are other intricate matters contained in the Bill. The guardianship clause strikes one, at first, as containing a rather strong doctrine. I should not like to express any opinion upon that at the moment. However, I think your Lordships are agreed, at any rate we on this Bench are agreed, that this Bill should be lead a second time, but I ask the noble and learned Viscount on the Woolsack to give us a little time between the Second Heading and the Committee stage. The noble and learned Lord opposite suggested that there is an absurdity in one of the clauses, and that comment shows how carefully the Bill ought to be scrutinised. Obviously it is a compromise, and compromises do sometimes lead to rather ridiculous results. I understand from a movement of the Lord Chancellor's wig that he agrees to my suggestion, and I do not think that we should put any further obstacle in the way of this Bill being read a second time.

THE LORD CHANCELLOR

I am not able to make any statement at present but we shall not take the Committee stage before Whitsuntide, and I propose to leave the date for the Committee over until we see what Amendments come in.

THE MARQESS OF SALISBURY

I am obliged to the noble and learned Viscount.

On Question, Bill read 2a, and committed to a Committee of the Whole House.