ILLEGITIMATE CHILDREN (SCOTLAND) BILL. (Hansard, 17 June 1930)

§ VISCOUNT HAILSHAM
My Lords, this is a Bill which received support from all Parties in another place, and which substantially is designed to assimilate the law of Scotland on this matter with 3 the existing law of England. Under the law of Scotland, as I am informed—and I do not claim to speak with any authority—the practice is only to provide an allowance for illegitimate children until they attain the age of puberty, twelve and fourteen years respectively; and by the same law it is regarded as irrelevant to investigate the means of either parent, because in the view of the Scottish law the two parents are each responsible for one half of the reasonable costs of maintaining the child, however much one may be better able than the other to bear that expense. The mother, for instance, can only recover one half of the necessary expenses from the father.
Under Clause 1 of the Bill the duration of the liability to provide aliment is extended until the child attains the age of sixteen years, without prejudice to the Common Law obligation in the case of children who are mentally defective, and the like. By subsection (2) provision is made that the court shall have regard to the means and position of the parties, and shall make its award with these considerations in mind. The same is provided in subsection (3) in the case where the application is by somebody other than the mother. Then, by Clause 2 an anomaly is removed. Under the existing Scottish law it appears that the father is entitled to the custody of his illegitimate child after the age of seven, and he can discharge himself from any liability to provide any aliment by offering to take the child. That power has been very oppressively used in times past to prevent the mother from obtaining any sort of support for her child by the threat that, if application is made and if the demand is persisted in, the father will exercise his right and thereupon determine his liability.
Clause 3 again deals with a matter in which the Scottish law differs from the law of England. Clause 3 permits proceedings to be commenced within three months before the birth of the child, but provides that the actual hearing shall not take place until after the child has been born. It is to ensure that there shall not be the delay which otherwise does ensue in commencing proceedings and in obtaining some form of support at the very time when the mother most needs financial help. Clause 4 provides that there shall be power to order the payment to be made 4 to an officer of the court instead of direct to the mother. That has been found useful in practice in England and will probably save expense to both parties in Scotland. Clause 5 provides that both the mother and father of a child who dies under the age of sixteen are liable for reasonable funeral expenses. I do not think I need detain your Lordships at this stage of the Bill except, as I have said, to assure your Lordships that the Bill has had support from every quarter of the House in another place. I hope your Lordships will agree that it provides a really valuable reform in the existing law and practice of Scotland. I beg to move that the Bill be now read a second time.

§ LORD PARMOOR
My Lords, it may be useful if I state at once that we are quite in accord with what the noble Viscount has said with regard to the Bill now before your Lordships. Its main purport is to introduce into Scotland as regards age and other matters the same procedure and considerations as now weigh in respect to the aliment and care of illegitimate children in this country. There was no discussion in another place except upon clauses. During the discussion on clauses the Lord Advocate made perfectly clear, I think, what the difference was between the English and the Scottish law at the present time and offered admirable arguments for supporting the Bill as it stands. As the noble Viscount knows, it is not a Government Bill; but certainly we give it every support we can and I hope it will obtain a Second Reading.

LORD POLWARTH
My Lords, I venture to crave the indulgence which I know your Lordships' House always gives to those who address it for the first time. I desire as a Scottish Representative Peer to support the Bill, though I feel that it is somewhat presumptuous to do so after the speeches of the noble and learned Lords who moved and supported the Second Reading. My only excuse for doing so is that I have come into considerable contact with this question, owing to my having had the honour to hold for a number of years the position of Chairman of the Prison Commission in Scotland. Not only that, but my close contact with a number of social workers 5 interested in this question has also brought me into a position to see it in its practical aspects. Visiting prisons continually, it was my lot very frequently to see those unhappy young mothers who found themselves in prison because they had been driven to such a point of despair that they had made away with their infants and had been convicted, or were in custody either charged with culpable homicide or concealment of pregnancy—we do not convict them of murder in Scotland—and the still more unhappy case where the mother had been found not responsible for her actions and was detained during His Majesty's pleasure as insane. However wrong their actions might have been, one could not but feel intensely sorry for these young girls, frequently so very young, who had been driven to do what they had done by despair and uncertainty as to the future, as to what was to happen to themselves and to their infants when they were born. One of the objects of this Bill is to lessen or remove that uncertainty, and I think it will operate in that direction. It was frequently my lot also to see young men who had been committed to prison for failure to pay aliment. Although many of them claimed that they were unable to pay, yet I hardly ever remember a case in which the justice of the award was disputed.
If I may refer very briefly to one or two of the clauses of the Bill, I am informed by those who know best that Clause 1 extending the age to sixteen is a very valuable provision. The present practice is to award aliment in most cases up to the age of seven for a boy and ten for a girl. In these days of factory legislation it is obviously absurd to imagine that any child of seven or "ten would be in a position to support itself, whatever may have been the case when the practice began. It has been the practice only to award aliment for that length of time and then fresh application has had to be made. That in many cases is a very unpleasant thing to do, and I am informed that not a few women, knowing they may have the child taken from them if they apply at the age of seven or ten, do not make application at that time at all. That, of course, is very undesirable.
Then, with regard to subsection (4) of that clause, which provides for the amount of aliment being fixed 6 according as the court sees fit, in accordance with the means of the father, that also is regarded as of great importance. The sum usually awarded now is 4s. 6d. That is obviously a very small sum, though it may be sufficient to maintain an infant at the standard which obtains in the slums of towns. Hut there are many cases where a larger sum ought to be paid. A lady who has charge of much of this work has informed me that there are many cases of young mothers who have been obviously brought up in very much better circumstances and who might reasonably expect to be able to have the child provided for according to an altogether different standard; also that there are not a few cases where the father can very well pay more. This has a, wider effect than one might suppose. I am informed that a large number of cases are settled out of court, especially in those cases where the father is rather better off and desires to avoid the publicity attendant on action in court. The knowledge that the court will not award more than 4s. 6d. has led to this being regarded as the standard payment which should be made, and an offer is made to the mother of 4s. 6d. per week, or an equivalent capital sum, and nothing more. If this limitation is removed, and the father knows that the court may award a considerably larger sum, it is far more likely that in those cases settled out of court a reasonable and fair provision will be made.
The third subsection of the clause is a very important one, because it provides for payment being made to a third party. It is extremely undesirable that the mother should require to follow up and keep in touch with the father during a long number of years. That is very undesirable indeed, and it is most essential that the payment should be made to a third party who is acceptable to the mother. In many cases no doubt, especially in the case of poorer parents, the third party would be the inspector of the poor, the officer who is responsible for looking after such cases in any Poor Law area, but it is very desirable that there should be a regular provision for receiving this payment. I think that far fewer men would go to prison in default of payment if it were easier to pay the money to some one on behalf of the mother. Usually payment has to be made to a lawyer, the agent for the 7 mother, and he naturally makes a charge, and if there is only a small sum involved, usually 4s. 6d., not much can be spared out of that for payment of legal expenses or fees, so that this provision for the receipt of the money by a third party is a very valuable one.
I venture to hope that the Scottish Law Officers, and those responsible for this Bill, will consider especially making some provision for receiving this money. At present in very many cases no demand is made until a policeman appears with a warrant for the arrest and committal to prison of a man in default of payment. In most cases in Scotland the police receive the money, and no actual arrest is made, but there are some cases in which the police are not allowed to receive the money, it being held, perhaps rightly, that they are not debt collectors. I continually see men brought as prisoners, often from very long distances, paying the money the moment they get inside the prison. That is obviously absurd, and I hope that some provision may be made possible by some amendment in Committee which will obviate that absurdity, to which attention has teen directed more than once in the past, and that whenever the money is tendered it may be accepted.
The provision in Clause 2 by which the father will no longer be able to take the child away from the mother is a very important one. Picture for a moment how unhappy would be the position of an illegitimate child if the father introduced it among his family of legitimate children in order to save the payment of aliment. The lot of such a child would certainly not be one to be envied. It is a considerable source of dread to mothers who have had the trouble and care of bringing up a child to the age of seven, and have learned to love it as they would never have done if it had been taken away in infancy, to know that the father may then come forward and take the child away. I understand that this fear frequently prevents mothers making any fresh application for aliment after the child reaches the age of seven. Therefore I welcome the provision in Clause 2 of the Bill.
Clause 3 was much criticised in another place, but it is in accordance with the law of England. In Scotland we usually claim that our law is superior to the law 8 of England, but that does not prevent us being willing to accept the good points of English law when they are offered to us, and this is a case in which I think we may very well follow the example of England, and allow an action to be begun before the birth of the child. It is especially provided, if the parentage is disputed, that then the action will not be decided until after the birth of the child, but in many cases no doubt the parentage will be admitted, and it will be an enormous relief to the mother to know that she is sure of adequate provision for the expenses of her confinement and also for the maintenance of her child. I believe this provision will go a long way to prevent those unhappy cases to which I have alluded, where the mother is driven to a state of desperation and despair in sheer dread of what may happen to her. I venture to apologise to your Lordships for having addressed you at such length, and I trust the Bill will receive your support and its Second Reading.