HL Deb 18 March 1958 vol 208 cc234-46

2.37 p.m.

Order of the Day for the Second Reading read.

LORD CHORLEY

My Lords, this is a small Bill which has been designed to remove one of the last remaining anomalies in the status of women. Year by year, of course, since the end of the First World War these have been disappearing. It is within the recollection of your Lordships that we had a Bill to remove the disability upon women becoming Members of this House; and although there was a certain amount of grumbling, I think that in the end it was generally admitted that, in the conditions of 1958, it is altogether too late to deny to women the right to take part in the work of this House. And that, I I think, is symptomatic of the whole situation.

It is now generally admitted that a mother is entitled to an equal voice with the father in solving the problems which arise from time to time in connection with the bringing up of children—the question of their education and matters of that kind. I think it is undoubtedly true to say that in practice, in the great majority of cases, she has an equal voice with the father. But, legally speaking, of course, she has not that right: the father is still the guardian at Common Law, and it is his word which, in fact, counts. If he chooses to disregard the mother's views in any particular matter relating to the welfare of the child—its religious upbringing, its education, or something of that kind—then prima facie he is entitled to do what he likes. In certain types of case it may be possible, under the Guardianship of Infants Act, 1925, for the mother to have the matter brought before the court, and undoubtedly that represented a considerable step forward.

The fact that there has been no insistent demand for a Bill of this sort indicates that the worst of the anomalies were removed in 1925, and the sort of difficulties which now exist in practice are perhaps not serious ones, although from time to time they give rise to real problems. Normally speaking, the parents do, of course, resolve their differences amicably; or, if not always amicably, at any rate by give and take. Father's view may carry the day, though sometimes, no doubt, mother's view will carry the day.

There is, however, another class of case which has given rise, as I indicated a moment ago, to a certain amount of difficulty, particularly, for some reason or another, in recent years—that is the case where the parents are living apart, and the children are with the mother. These cases are not necessarily, of course, cases where the spouses are estranged. It may well be that the husband is abroad for reasons of business or health, or even for reasons of travel. But he may be abroad for substantial periods of time, and a long way away. In these circumstances, the mother acts as a kind of de facto guardian, and so long as no actual legal question arises in connection with which guardianship proper is involved she gets along without too much trouble. But legal questions do arise from time to time in circumstances of this kind, and they may be quite insoluble until the father gets back, or until he can be brought in to deal with the situation in one way or another.

A good example of this situation—and it is one which has given rise to quite a number of cases during the last year or two—is where the child, being with the mother at home, and the father being abroad, possibly in the Antipodes, needs a passport for foreign travel. Perhaps the child wants to go with fellow children at school on one of these foreign expeditions which are now becoming such a feature in the life of schools, and which I am sure we all agree are very commendable. In those circumstances, an application is no doubt made by the mother to the Passport Office, and the passport officer says: "I am sorry; I cannot issue a passport because you are not the guardian of this child." Unless it is possible to get the form signed by the father—and it may be quite impossible in the short time which is available—the child cannot get a passport, and cannot go abroad. This has happened in a number of cases, and I understand that the point has been put up to the Home Secretary himself who has ruled that, legally speaking, it is not possible in such circumstances for the passport officer to issue a passport.

This difficulty may arise without there being any estrangement between the spouses; and if there is an estrangement, it may, of course, be exceedingly difficult, if not impossible, to get the husband to put the needful signature on to the application. I myself only the other day received a letter from a woman who told me that her husband had been working in India for quite a number of years, leaving her with a son and daughter to bring up without any assistance from him, although she says he is in perfectly good employment. She never hears from him. In those circumstances it is quite impossible for her to get any assistance from him, nor could she get any assistance in connection with the passports of the children when they were required. So your Lordships see that this is not only a question of principle. that the mother should have equal rights of guardianship with the father, but it is also a practical question in a substantial number of cases at the present time.

I think I ought to remind your Lordships that the proposal embodied in this Bill has been before Parliament on a number of occasions in the past. In the early days after the First World War the women's organisations were continually agitating for an improvement in the situation as it then stood. As early as 1919, I think, a Bill was introduced into another place, and after that there were further occasions. Notably, there was a Bill introduced by Mrs. Wintringham in 1924 which looked like having a certain amount of success, when the Government of that day said they were proposing to introduce a Bill themselves. That was the Labour Administration of 1924, but when their Bill was introduced it did not go as far as the proposal in Mrs. Wintringham's Bill; it did not, in fact, confer upon the mother equal rights of guardianship with the father. It became to all intents and purposes the present Guardianship of Infants, Act, 1925, because after the fall of the Labour Administration the new Conservative Administration brought the Bill in again in 1924. It was moved in another place by the Under-Secretary at the Home Office in a speech in which he described it as a step towards equalisation.

What I am saying now is that it is high time, nearly thirty-five years later, that the final step was taken. That Parliament should take that final step I am asking your Lordships to declare this afternoon. The 1925 Act—the 1924 Bill, because that was when it was framed—was, I think, framed deliberately so as not to give the mother the equal rights of guardianship for which we are now asking, and the argument against doing so was rather that the parents would be continually having recourse to the courts in the slightest case of disagreement.

Sir Henry Slesser, whose Bill I think it was in the first instance, said that if there was an argument as to whether Tommy should go to bed or not, the next thing that would happen would be an application to the judge to decide it. It seems to me that that is altogether farfetched. I do not believe anybody who had taken part in bringing up a family would believe that that sort of thing was likely to happen, and it is possibly because Sir Henry Slesser himself had not been occupied with bringing up a family that he believed such an extraordinary situation could arise. Nor in a number of foreign countries where the law is that the father and the mother have equal guardianship is it found in practice that they are continually bringing their troubles to the courts. I submit that it is going to be a very rare case indeed where the parents are not able to work out their problems in the home, as of course they do at the present time. In the rare case where they are unable to do so, then, I suggest, it may be a positive advantage to everybody concerned, and particularly to the child, that the matter should be adjudicated upon by an experienced and impartial arbiter, as of course it would be. It is for this reason that in the Bill we have provided a clause expressly to make possible an application to the court in a case where it may prove necessary.

My Lords, I think it is necessary for me to point out only one further matter, and that is that there is an error in line 10 of the. Bill as printed, where the word "lives" should be "time". I am sorry that I failed to notice this error in the original typescript, but of course it can be, easily corrected in Committee if your Lordships will give the Bill a Second Reading, and for this I now formally move.

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

2.50 p.m.

LORD CHESHAM

My Lords, I think that the noble Lord, Lord Chorley, has done a good thing in bringing this measure forward, because it gives us a chance, although apparently it is to be a fairly brief debate, to discuss a matter which is, I think, both interesting and important. The question he has really raised this afternoon is in essence whether the existing law of guardianship as expressed in the Acts of 1886 and 1925 accords with our present conception of the place of women in society. The principle of equality between the sexes was, as was correctly said, recognised by Parliament in 1919, and I am glad to say that it is so widely accepted now as almost to be taken for granted.

It often happens that a long period elapses between the acceptance of a principle and the working out of all the practical implications that may follow. The 1925 Act was passed while the movement for the emancipation of women was at its height. The preamble to the Act recites the very principle of equality about which we are talking. It says: It is expedient that this principle should obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby. The Act of 1925 was a compromise measure and, as we have heard described, some of the women's organisations have argued that its provisions fall rather short of that declared intention and, in some people's view, perhaps leave the women in a position of inferiority. They have also put forward practical difficulties which may arise; but as I see it, it is principally on the broad ground of status that the noble Lord has introduced this Bill. That ground must certainly command our respect and our sympathy; but, as he and your Lordships will appreciate, the Government's attitude must depend not only on the principle which the Bill contains but on the practical results that may well flow from it.

I should like briefly to consider the provisions of the existing law and how far the Bill would be likely to affect such difficulties as now arise. As your Lordships know, under the Common Law a father has the right during his life to the custody and guardianship of his infant. That right has from time to time been somewhat diminished by Statute, in particular by the Acts that I have mentioned of 1886 and 1925, because under those Acts the mother may apply to a court, including a county court or magistrates' court, for the custody of the child. In the process, any dispute there may be between the parents about such matters as the child's education, its upbringing or religious instruction, or the access which each parent is to enjoy, can be brought before the court at the time for its decision. I suppose in general disputes about custody are more likely to arise when the parents are living apart, but I should like to recall the fact that the Act of 1925 expressly enables the court to make an order before they have actually separated, although that order does not become effective unless they separate within the next three months.

I am glad that the noble Lord said —because I think it is important that in our consideration of all this we must bear in mind that the country is in fact filled with happily married couples who do resolve their own difficulties, and in considering this I do not think that we want to overlook that and make a case for a very widespread uneasiness or number of problems. I think we may therefore take it that the practical difficulties that confront a mother will generally arise when, as the noble Lord said, the parents have separated, for one reason or another, without any legal proceedings having been taken, and where of course the father remains the guardian by virtue of the Common Law rule.

He mentioned—and probably it is the most obvious difficulty that does arise—the question of the child requiring a passport. Of course, it is the guardian who must sign the application form. There are two difficulties that I can see. The first is that the father might take the child abroad without the mother's knowledge or consent, although if she has any warning of his intention she may be able to take some action in the court to restrain him; but she may not always know in time. On the other hand, in such a case as that which the noble Lord described, if the father has broken with the family and is not available, the mother may not very easily be able to get a passport, unless she goes to the court for an order for custody. That, however, is not such a serious difficulty as it might seem. She can apply to a county court or magistrates' court for such an order, so that it need not involve any particular inconvenience or expense. But apart from the question of passports, I think that few practical difficulties would arise where the mother has been left in de facto possession of the child; because, whether or not she obtains a custody order, the father simply will not be there to challenge any decision she may make regarding the child's upbringing. I believe it has been said that a difficulty may arise regarding consent required by hospitals when an operation is necessary, but I think in this case, whatever may be the legal position, it is the common practice for the hospital to take the consent of either parent as sufficient.

My Lords, we must consider, too, how far the situation would be altered if the noble Lord's Bill became law. Under Clause 1, the father and mother would have joint rights of guardianship, and apparently neither of them would have authority to act alone, in which case, of course, all documents relating to the infant would presumably have to be signed by both parents. That would certainly make it more difficult, for instance, for a father alone to get a passport for the child, but it would make it no less difficult for the mother, to say nothing of creating a good deal of extra work for the Passport Office. I think that such other difficulties as now arise, particularly in emergencies, would be more likely to be aggravated than to be eased.

The noble Lord explained that Clause 2 would enable the parents to bring before a court any dispute about the child's upbringing, even when they were living together and there was no dispute about the custody of the child. It is extremely hard to say, of course, how far parents would in practice have recourse to this, but as a matter of principle it seems wrong to encourage them to bring what may be rather trivial matters before a court. It must be wrong for a court to interfere in the affairs of married life unless it is absolutely necessary to do so; because not only is the court not very well equipped for the task but I should have thought that the very action of bringing the matter to court would be more likely to lead to an increased amount of disagreement and possible friction in the home than the opposite. It surely must be far better that the parents should compose their differences in private; and, as the noble Lord said and as I am sure that some of your Lordships at any rate will know, it is not always the father's view that prevails. Where it, does prevail, I believe that it is likely to do so by virtue of the fact that the father customarily pays the bill, rather than because he insists on his status as legal guardian of the child.

Her Majesty's Government recognise that there are difficulties under the existing law, but we feel that the noble Lord's Bill would create more difficulties than it would solve; consequently, I am afraid that I cannot advise your Lordships to give the Bill a Second Reading.

3.1 p.m.

LORD PETHICK-LAWRENCE

My Lords, we have listened with great interest to the speech just made by the noble Lord, Lord Chesham, with regard to this Bill. If I understand his position aright, he is in favour of the principle of the Bill and recognises some of the difficulties of which my noble friend, Lord Chorley, knows and has seen in the working of the present law; but the noble Lord, Lord Chesham, feels that the difficulties which would be created if the Bill were carried in to law are such that he would not like to see the Bill carried in its present form. If I have not incorrectly represented the position of the noble Lord, I would venture to suggest that your Lordships' House should give a Second Reading to the Bill. I feel that the points which the, noble Lord, Lord Chesham, has raised against it are Committee points.

We are to-day concerned with the general principle and if we favour that general principle then we ought to support the Bill. It will then be open to the noble Lord, Lord Chesham, on behalf of Her Majesty's Government, or other Members of your Lordships' House, to move, in Committee, Amendments which will correct any failing in the Bill which would make for difficulties in the future. If noble Lords succeed in carrying those Amendments—as no doubt they will if their criticisms are justified—the Bill will emerge in later stages with its objectionable features removed. Speaking, as I do, mainly for myself, but I believe with the approval of a good many, at any rate of those on this side of the House, I propose, therefore, if my noble friend carries the Second Reading to a Division, to vote in favour of it; and I would ask noble bards to vote in favour of the Bill.

LORD CHESHAM

My Lords, may I intervene to make my position perfectly clear? I used the words "respect" and "sympathise" with regard to the principle of the Bill and then pointed out that in the opinion of Her Majesty's Government it would create more difficulties than it would solve. I feel that the noble Lord should not give the House the idea that I am not really against the Bill except in regard to one or two Committee points.

LORD PETHICK-LAWRENCE

My Lords, the noble Lord, Lord Chesham can put any gloss he likes on his own speech, and Members of this House will be quite free to read his speech in Hansard to-morrow. I certainly understood him to say, and I believe he used the precise words, that he was in favour of the principle of the Bill, or that he thought it was a good principle to be adopted, but that he saw certain difficulties in carrying it out. I am only suggesting that those difficulties could be ironed out in the course of the Committee stage and therefore I adhere to my point.

LORD CONESFORD

My Lords, I do not think those difficulties could be remedied in Committee. believe the principle which my noble friend was approving was equality of rights for women; but the Bill provides for joint guardianship and my noble friend was pointing out the very serious difficulties which would arise from joint guardianship. The noble Lord, Lord Pethick-Lawrence, believes it might be possible to remedy those difficulties during the Committee stage if the House were to give the Bill a Second Reading, but I do not think it would be possible to do so by any changes in Committee.

3.5 p.m.

LORD CHORLEY

My Lords, I thought for a moment that the noble Lord who speaks for Her Majesty's Government was going to agree to the Bill having a second Reading. His sympathy was so evident that I wonder whether, had he been left to himself, he would riot have accepted the view that I was attempting to put before your Lordships. In the end however, with tears in his eyes, he murdered the poor child. I do not really think that these practical difficulties just referred to by the noble Lord, Lord Conesford, would amount to a great deal. It was suggested that the situation in regard to passports would be even worse. But I do not think there would be any need whatever for more than one signature on the passport application. At present there are dozens of cases where there are two guardians. If a parent dies, it is as common as not to appoint two guardians; and under the Act of 1925 there is a proviso that when the father dies the mother actually becomes the guardian, so that if the father, by his will, has appointed a friend as a guardian, the mother is then, in fact, a joint guardian with that friend. So there are dozens of cases of children who are being looked after by two guardians, and, so far as I know, there has never been any particular difficulty through the Passport Office insisting that the application form must be signed by both guardians. I believe that the fact that there are so many cases of joint guardians who are working together and bringing up a child blows sky high the idea which has been put forward.

LORD CHESHAM

My Lords, I am sorry to interrupt the noble Lord but the point to which I was referring is that while it may not now be necessary for two guardians to sign, it would be necessary if the noble Lord's Bill were to become law.

LORD CHORLEY

My Lords, I am pointing out that there are at the present time many cases where there are two guardians of a child, as the result of the death of a father. In those circumstances these difficulties just do not arise, and I suggest, therefore, that this is one of the red herrings which people draw across a trial in order to carry one away on to a false scent.

LORD CHESHAM

My Lords, I am sorry, but I cannot accept that. I must apologise for interrupting the noble Lord again, but I do not believe he has quite taken my point. Whatever may be the position at present, if the noble Lord's Bill were to become law, it would in future be necessary for both guardians to sign.

LORD CHORLEY

My Lords, I just cannot accept that, because the passport position would be no different from the position now when an application is made for a passport in respect of a child with two guardians. How could the fact that this Bill will make both the father and the mother guardians alter the position with regard to the Passport Office? Obviously that is not common sense. Quite apart from this particular point, which I have called a "red herring", so long as this inequality exists we shall have arising the kind of situation which has recently been before the High Court and has been heavily criticised in some newspapers. In that case a mother, having by her will appointed somebody to be a guardian, married again—so that, by ordinary legal rules, her will became inoperative. On the death of the mother a Judge of the High Court decided (no doubt perfectly in the tradition of the Common Law) that the father's relations should have the guardianship of the child, ignoring the wishes of the mother. That kind of thing will continue so long as the law remains as it is at the present time, whereby Common Law gives rights to the father and not to the mother. Obviously that is not right in 1958 and the object of the Bill is to put right that wrong. I am sure the majority of your Lordships will agree that there is an overwhelming case in principle and that these points and details which have been brought against it carry no really effective weight. I therefore ask your Lordships to give the Bill a Second Reading.

3.10 p.m.

LORD SILKIN

My Lords, after this interchange of views, many of us are just as perplexed about what is the true position as we were before we started. I think we are on common ground in that here is a principle that most of us would accept. We are not clear whether the noble Lord is right as to the implications of that principle and the difficulties, and therefore it seems to me that the sensible thing to do is to give this Bill a Second Reading to-day and to thresh out these difficult points in Committee. I should not like to commit myself as to the line I should take on the Committee stage. It may be that the noble Lord, Lord Chesham, is quite right, and that the Bill would create more difficulties, especially as between married couples who are living together. But I do not think we have yet heard enough to decide, and I think it would be wise to give it a Second Reading and to have another go at it in Committee later.

THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE EARL OF HOWE)

My Lords, that is a plausible plea of the noble Lord, but my noble friend Lord Chesham has given a great deal of consideration to this Bill, and he thinks that it is unamendable and that it could not be made into a good Bill. I think he was right in recommending that we should not let this Bill pass. But perhaps the noble Lord, Lord Silkin, would like to think about the

matter again and bring forward a better Bill at a later date.

VISCOUNT STANSGATE

My Lords, would it not be better for the House itself to consider whether this is a Bill that can be satisfactorily amended? If the House then comes to the conclusion that the difficulties are too great, nothing is easier than for it to reject the Bill on Third Reading.

On Question, Whether the Bill shall be now read 2a?

Their Lordships divided: Contents, 25; Not-Contents, 44.

CONTENTS
Willingdon, M. Chorley, L. Middleton, L.
Crook, L. Ogmore, L.
Attlee, E. Douglas of Barloch, L. Pakenham, L.
Lucan, E, Geddes, L. Pethick-Lawrence, L
Haden-Guest, L. Quibell, L.
Addison, V. Hampton, L. Rea, L.
Stansgate, V. Hardinge of Penhurst, L. Silkin, L.
Henderson, L. Swaythling, L.
Amulree, L. Mathers, L. [Teller.] Williams, L.
Wise, L. [Teller.]
NOT-CONTENTS
Kilmuir, V. (L. Chancellor.) Long, V. Dynevor, L.
Soulbury, V. Ebury, L.
Hailsham, V. (L. President.) Templewood, V. Freyberg, L.
Gifford, L.
Aberdeen and Temair, M. Aberdare, L. Gisborough, L.
Lansdowne, M. [Teller.] Addington, L. Jessel, L.
Ailwyn, L. McCorquodale of Newton, L.
Albemarle, E. Ashton of Hyde, L. Merrivale, L.
Ferrers, E. Belstead, L. Milverton, L.
Gosford, E. Cawley, L. Monkswell, L.
Home, E. Chesham, L. [Teller.] Moyne, L.
Lonsdale, E. Colyton, L. Newall, L.
Shaftesbury, E. Conesford, L. Saltoun, L.
Denham, L. Sandford, L.
Colville of Culross, V. Derwent, L. Somers, L.
Falmouth, V. Dovercourt, L. Teviot, L.
Goschen, V.

Resolved in the negative, and Motion disagreed to accordingly.