GUARDIANSHIP OF INFANTS BILL. (Hansard, 26 May 1925)

§ THE LORD CHANCELLOR (VISCOUNT CAVE)
My Lords, this Bill comes to your Lordships from the other House, where it has passed without a Division. It is also, in substance, identical with the Bill passed by this House last year, at the instance of the Government of that day. It proposes a solution of a long controversy. No doubt it contains some elements of compromise, but I think that upon the whole its proposals may well meet with the general approval of this House. The principle of the Bill is, in the matter of guardianship, equality between the two sexes. The proposal of the first clause is that in any matter relating to the custody of infants, or the administration 522 of property belonging to or held en trust for an infant, the Court shall have regard to the welfare of the infant as the first and paramount consideration. So far, I think that accords with the law as now administered by the Courts. The clause adds that the Court shall not consider the claim of the father as being superior to that of the mother, or the claim of the mother as being superior to that of the father. I need not refer to Clause 2.
Clause 3 provides that an order for custody may be made even though the parents are living together. That means this: As matters now stand a mother who considers that her children are being badly treated, or not properly looked after, by their father, can leave her husband and then apply for the custody of the children; but it is said that that necessity of leaving her husband makes it very difficult for a mother to resort to that remedy, because if she leaves her husband she must, probably, take the children with her if they are being badly treated, and she has no means out of which to maintain them. Further, if after leaving her husband she is not able to obtain an order for custody, she is in a very difficult position. The clause, therefore, provides that a mother may apply for custody even though she is still residing with her husband; but that is guarded, as the result of discussions in this House last year, by a provision that the order for custody shall have no operation while the parents are still living together. Plainly it would be absurd, if the father and mother were living in the same house, that the custody should be taken from one and given to the other. The Bill also provides that if they continue to live together for more than three months, then the order comes to an end, because it is undesirable that an order of that kind should be hanging over the heads of parents for an indefinite period. That, your Lordships will understand, is the fruit of considerable discussion, and I think it results in a compromise between the two extreme views.
Clauses 4 and 5 give power to either parent to appoint a guardian to act with the surviving guardian on death. That provision, however, contains this precaution: that if the surviving parent objects to the guardian appointed by the 523 parent who has died resort may be had to the Courts and the Courts may direct that the guardian so appointed shall not act. There is another provision in Clause 7 of the Bill which gives jurisdiction in matters of guardianship to courts of summary jurisdiction. It is said that resort to the High Court, and even to county courts, involves considerable expense, and for some time it has been asked that courts of summary jurisdiction shall have power to deal with these matters. The Bill, therefore, proposes to give them that power, which is, however, limited by a proviso which prevents a court of summary jurisdiction from entertaining an application as to a child over sixteen years of age, or any application as to the administration of property belonging to or held in trust for an infant, or the income thereof, or awarding the payment of sums for the maintenance of any infant exceeding 20s. a week. Therefore the power given to these courts is strictly limited, and I think that with that limitation we shall be prepared to give this jurisdiction. Other clauses deal with minor matters, and I need not refer to them in detail, although if any explanation is required I shall be glad to give it. I beg to move.

§ LORD ASKWITH
My Lords, I should like to say a few words in endorsement of what has been said by the Lord Chancellor with regard to this Bill. Although a Bill was first introduced in the House of Commons as long ago as 1919, yet for the last three years your Lordships have had Bills before you, and have almost been hammering at the gates of the other place with a view of getting something through upon this important matter. The vicissitudes of Parliamentary Ministries have caused the matter to be deferred. Twice I introduced a Bill. Twice these Bills have been referred to a Joint Committee under the Chairmanship of my noble friend Lord Wemyss. With one more meeting in 1923 we could have come to an agreement, and it was in 1924, on a Bill introduced by a lady in another place, that the Government of the day promised that this matter should be taken up. It was taken up last year. Long discussions took place with different Government Departments, and the Bill now before your Lordships, with some 524 slight alterations, is the result of those discussions. The promoters endeavoured to meet all the chief objections made to the Bill, and to produce a Bill that would go through with the support of all parties. I have only one small Amendment that I shall move in Committee, extending the period for holding up orders from three months to six months. Otherwise I have no Amendment to suggest, and I hope that this Bill—which gives an extension which is much desired to those who are unable to come to the High Court, which gives to the lower courts jurisdiction particularly appertaining to the welfare of the children, which is desired in the interests of the children of this country rather than of husband or wife, or any question of equality of the sexes—will go through with the approval of your Lordships.

§ LORD PHILLIMORE
My Lords, I only rise to put one small point which I have communicated to the noble Lord on the Woolsack. Curiously enough, and I take some blame to myself for not having remembered it before, in the marriage clause there has been what seems to me an omission. Marriages by banns hove been contemplated, and also civil marriages, but marriages with the licence of the Bishop have not been contemplated, so far as I can gather. It has been brought to my notice by a committee of Diocesan Chancellors that this omission is one that ought to be remedied. I speak as a former Diocesan Chancellor myself, and I think it would rather increase than otherwise the facilities under Clause 9 if some words were introduced enabling the Bishops' licences to be granted for marriage as well as those of superintendent registrars.
I may add that, curiously enough, this very sort of question has more than once come before Ecclesiastical Judges. I remember that once, not in my capacity of Bishops' Chancellor but of an official to an archdeacon, I had to determine a very nice question as to the power of the mother in certain circumstances to give the consent in the absence of the father, and fortunately found myself able to allow a licence. I have had communications also showing that one if not two such cases have recently come before Diocesan Chancellors. All I say is that I trust that when this matter is before your Lordships 525 in Committee the noble and learned Viscount on the Woolsack and his advisers will see an opportunity to make the necessary Amendments.

§ THE LORD CHANCELLOR
I am obliged to my noble and learned friend Lord Phillimore for drawing attention to the matter of Chancellors' licences and I will certainly have the matter looked into.