TUESDAY, 24th MARCH, 1925.71
The Committee consisted of the following Members:
Short, Mr. A. (Chairman)
Acland-Troyte, Lieut.-Colonel (Tiverton)
Ainsworth, Major (Bury)
Alexander, Mr. Albert (Hillsborough, Sheffield)
*Astor, Viscountess (Sutton, Plymouth)
Barker, Mr. (Abertillery)
Beamish, Rear-Admiral (Lewes)
Beckett, Mr. John (Gateshead)
Bourne, Captain (Oxford)
Briggs, Mr. (Blackley)
Brown, Major Clifton (Hexham)
Clayton, Mr. (Widnes)
*Clowes, Mr. (Hanley)
Cluse, Mr. (Islington, S.)
Craig, Mr. Ernest (Crewe)
Croft, Brig.-General Sir Henry Page (Bournemouth)
Davies, Major George (Yeovil)
*Davies, Mr. Rhys (Westhaughton)
Dennison, Mr. (King's Norton)
Edwards, Mr. Hugh (Accrington)
*Elliot, Captain (Kelvingrove)
Fairfax, Captain (Norwich)
Falle, Major Sir Bertram (Portsmouth, North)
Gault, Lieut.-Colonel (Taunton)
Grenfell, Mr. David (Gower)
Grotrian, Mr. (Hull, S.W.)
Gunston, Captain (Thornbury)
Hall, Captain W. D'Arcy (Brecon and Radnor)
*Harney, Mr. (South Shields)
Hartington, Marquess of (Derbyshire, West)
Hirst, Mr. W. (Bradford, S.)
Hudson, Mr. Robert (Whitehaven)
*Hume-Williams, Sir Ellis (Bassetlaw)
*Joynson-Hicks, Secretary Sir W. (Twickenham)
Kenworthy, Lieut.-Commander (Hull, Central)
*Locker-Lampson, Mr. Godfrey (Wood Green)
Macdonald, Sir Murdoch (Inverness)
Makins, Brigadier-General (Knutsford)
March, Mr. (Poplar, S.)
Milne, Mr. Wardlaw- (Kidderminster)
Morrison, Mr. Hugh (Salisbury)
Nuttall, Mr. (Birkenhead, W.)
Peto, Mr. Basil (Barnstaple)
*Philipson, Mrs. (Berwick-on-Tweed)
*Ramsden, Mr. (Bradford, N.)
*Rawlinson, Mr. (Cambridge University)
Sandeman, Mr. (Middleton and N. Prestwich)
Scurr, Mr. (Mile End)
Simms, Mr. (Down)
*Slesser, Sir Henry (Leeds, S.E.)
Smith, Mr. Rennie (Penistone)
Smithers, Mr. (Chislehurst)
*Solicitor-General, Mr. (Bristol, Central)
Somerville, Mr. Annesley (Windsor)
Taylor, Mr. (Lincoln)
Thompson, Mr. Luke (Sunderland)
Tinne, Mr. (Wavertree)
Waddington, Mr. (Rosendale)
Ward, Lieut.-Colonel John (Stoke-on-Trent)
Warner, Brigadier-General (Bradford, Mid.)
Watson, Sir Francis (Pudsey and Otley)
Watts, Dr. (Withington)
*Wilkinson, Miss (Middlesbrough)
Williams, Commander Charles (Torquay)
Williams, Mr. John (Llanelly)
* Added in respect of the Guardianship of Infants Bill.—24th March, 1925.
SIR J. S. HORBRUGH-PORTER, Committee Clerks.
CAPTAIN DIVER, Committee Clerks.72 73 STANDING COMMITTEE A Tuesday, 24th March, 1925.
[Mr. SHORT in the Chair.]
Clauses 1 (Principle on which questions relating to custody, upbringing, &c., of infants, are to be decided) and 2 (Equal right of mother to apply to court) ordered to stand part of the Bill.CLAUSE 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 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.
(3). No such order, whether for custody or maintenance, shall be enforceable and no liability thereunder shall accrue while the mother resides with the father.
(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.
The UNDER-SECRETARY of STATE for the HOME DEPARTMENT (Mr. G. Locker-Lampson): I would like to explain that on the Summary Jurisdiction (Separation and Maintenance) Bill the other day a point was raised about limiting the period during which the Order should run while the wife was still living with her husband, and the Home Office agreed to insert an Amendment, if desired, limiting the period to three months. If the 74 Amendment is put down, as I understood it was going to be put down by the hon. Member for South Shields (Mr. Harney), we would be prepared to accept the Amendment on the Summary Jurisdiction (Separation and Maintenance) Bill, and in that case we should have to put in a similar Amendment to the present Bill.
Sir HENRY SLESSER: I think that this is a necessary provision. As the Order now obtains, it would continue during the whole of the life of the two married persons. It is obvious that some limitation should be put on the validity of this Order. Otherwise a wife may obtain an Order and not act on it for ten years afterwards. If you give her three months it would seem to be a reasonable period.
Mr. LOCKER-LAMPSON: I beg to move, at the end of sub-section (3) to insert the words "and any such order shall cease to have effect if for a period of three months after it is made the mother of the infant continues to reside with the father". I think that it may save time if I move this Amendment now, instead of on the Report stage.
Amendment agreed to.
Clause, as amended, ordered to stand part of the Bill.
Clauses 4 (Rights of surviving parent as to guardianship), 5 (Power of father and mother to appoint testamentary guardians), 6 (Disputes between joint guardians), 7 (Extension of jurisdiction to courts of summary jurisdiction), 8; (Enforcement of orders for payment of money), and 9 (Consents required to marriage of infants), ordered to stand part of the Bill.
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.
Mr. LOCKER-LAMPSON: I beg to move, to leave out the words, "as amended by" and to insert instead thereof the words "or of." This is purely a drafting Amendment. It involves a legal technical point. I hope that the Committee will not ask me to explain it. We have got here a dis- 75 tinguished member of the legal profession, who can do so, if required. It is a matter of Scottish law, but I am assured that from the drafting point of view it is necessary.
Sir H. SLESSER: The effect would be that, as the Bill now stands, the Guardianship of Infants Act, 1886, is only applied to Scotland as amended by this Act. It is deemed necessary, under a decision of the Scottish Courts, under the Guardianship of Infants Act itself as distinguished from this Act, that the mother shall be deemed to be, and always to have been, a trustee. The purpose of putting in the words "or of," is that it would increase the rights of the mother under the old Act. Under the Scottish law it was decided that she was not a trustee within the meaning of the Trusts (Scotland) Act. Therefore it not only gives her rights under this Act, but would secure her the same rights under the Guardianship of Infants Act, 1886, as regards Scotland.
Amendment agreed to.
Clause, as amended, ordered to stand part of the Bill.
Clause 11 (Short title, construction and extent) ordered to stand part of the Bill.
"The mother of every legitimate infant shall have the guardianship and custody of such infant with the father, and have equal authority, rights and responsibilities with regard to such infant."
Brought up and read the First time.
Viscountess ASTOR: I beg to move, "That the Clause be now read a Second time." This Clause was introduced in Mrs. Wintringham's Guardianship of Infants Bill, 1924. Its object is to give general effect to the conception of equal rights and responsibilities on the part of both parents towards the children. Of course, this Bill is not really an equal guardianship Bill, because it gives the equal rights only when they go to court. A great many women of all classes feel that it is but right that you should have joint guardianship. It has been tried both in British Columbia and in the United States. Some of our legal advisers say that it is a legal monstrosity, but they are doing very well under the legal mon- 76 strosity, both in British Columbia and in Ohio. Section 10,928 of the General Code of Ohio reads:— "The wife and husband are the joint natural guardians of their minor children and are equally charged with their care, nurture welfare and education, and the care and management of their estates. The wife and husband shall have equal powers, rights and duties, and neither parent has any right, paramount to the right of the other, concerning the custody of the minor, or the control of the services or the earnings of such minor or any other matter affecting the minor." A judge of the Supreme Court of Ohio, in sending me this, says:— "I have not heard any slightest objection to the law from any of the Law Courts." It seems to me that it is only common sense and common justice to have this done, and much as you may like it, it is not a legal Guardianship Bill without this Clause, because it is only when the parties come to Court that the mother becomes an equal guardian. I am sure that there is no Member of this House who does not think that if there has to be one guardian of the child, it had better be the mother. But we do not want that. We want them to be equal, and if you wish to give effect to that principle, you should put in this Clause. The legal mind always finds reasons for not doing things, but it seems to us only common justice that we should give the wife equal rights with the husband, without having to go to Court.
Mr. LOCKER-LAMPSON: The Committee will realise that this is a very important and very serious Amendment, and I hope very much that the Noble Lady will not press it. I do not know whether the Committee realises that Lord Askwith brought in a Bill, and then Mrs. Wintringham brought in a Bill and both those Bills were wrecked on this very suggestion. It simply means that you will have innumerable applications to the Court, on some of the most trivial matters, as well as, I dare say, important matters. This Bill is a compromise. It is identical with one which was brought in by the late Government. I believe that a Committee sat for a very long time, and I think that it was presided over by the late Solicitor-General, assisted by my hon. Friend, the late Under Secretary of State for the Home Department. That Committee sat for a very long time, and both the promoters of the Bill and the various repre- 77 sentatives of different women's societies, as well as of the Government, considered the whole matter, and they agreed to drop this terribly controversial point. The Bill of the late Government was introduced on that basis. The present Government pledged themselves in the King's Speech to introduce a Bill on this matter, and we have followed the advice of the Committee, and introduced an identical Bill. I know that my noble Friend is tremendously keen on the question, and has done a great lot for the woman's movement in this country, but if her suggestion were included in the Bill it would wreck the Bill. I do not think that it would have much chance of passing downstairs, and I am certain that it would be thrown out in another place, and all the efforts of the Committee which sat some time ago, and of the women's societies all over the country, in this respect would come to nought. I am not going into the details of the proposal, but I do beg of her, in the interests of the Bill and in the interest of women all over the country, not to press this Amendment.
Viscountess ASTOR: I knew that this was a contentious proposal, and I realised the fear of the lawyers that things would be brought to Court. But those fears have not been justified where this has been tried, either in British Columbia or Ohio. I was disappointed with the late Government for not having courage to give what they promised—equal rights to women. We do feel every year that we have got a better chance, because the country is gradually getting more enlightened on this subject. This matter is one for the Committee. I do not want to wreck the Bill, but I had hoped very much that the present Government would be more enlightened than the late Government. Really, it is a question of courage, and as it is a question of courage, I hope the Government will accept this Amendment. Naturally, I do not wish to wreck the Bill for the sake of this new Clause. We realise that the Upper House can turn it down, but we always have to take that possibility into consideration. If the Government brought the Bill through with a strong enough majority in the Lower House I do not think the Upper House would dare to wreck it. I cannot, of course, press the Amendment if it means losing 78 the Bill. That would be exceedingly foolish, and against the interests of women generally, because the Bill does go a long way. I do, however, want to make a protest, and to say that you are not giving equal guardianship. Do not fool yourselves by thinking that you are, because you are not. If the Committee feel that this new Clause would wreck the Bill, then, as I do not want to risk the loss of the Bill, I suppose I must not press the Amendment.
Sir H. SLESSER: I had not intended to speak on this New Clause, but I find it necessary to say a few words, because it has been suggested that the Government of which I was a Member has not been courageous. The question of courage does not arise; it is a question of sense. This New Clause is meaningless. It is no use talking about abstract rights. If you want a declaration you have it in the preamble of the Bill: "Whereas Parliament by the Sex Disqualification (Removal) Act, 1919, and various other enactments, has sought to establish equality in law between the sexes, and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights conferred thereby: I drafted that Preamble myself, and I did not feel particularly nervous in doing so. If it is a question of legal rights, those legal rights must mean legal enforcement. To give people rights and no machinery for enforcing them in a court of law, is simply to enrich the legal profession, because people will argue for months as to what these inchoate rights without sanction mean. I am not impressed at all by long declaratory Acts which have been made in the United States of America.
Viscountess ASTOR: And British Columbia.
Sir H. SLESSER: One great difference in our legislation is that we deal with real things as they come up. In France, for instance, you read in legislation: "Be it enacted, that after the 1st January all milk shall be quite pure." That does not appeal to our legal and parliamentary minds. When we put a word or a phrase into an Act of Parliament, we want it to have a meaning. To give a mere nominal right where you do not give power in the Courts to enforce it, is meaningless. If either party goes to 79 court, the court has to have regard to the welfare of the infant, and has not to consider the claims of the mother against the father or of the father against the mother. This Bill is an advance on anything that has been done before, and I think it is a little unkind of the Noble Lady to blame the late Government for lack of courage, when we piloted the thing through up to its present position, practically, and got agreement among discordant opinions. It is a little unfair to blame us for not being courageous, considering that we have produced a practical, workable scheme which, I agree with the Under-Secretary, will be imperilled, if not wrecked, if we put in some impracticable and unworkable suggestion.
Viscountess ASTOR: The hon. and learned Member must know that the women pressed the late Government to accept this Clause, and they had to compromise, because you would not go on with it. The hon. and learned Member knows that he had to get hold of the Liberal women and others and try to get them to agree. What we have always said, is that we want equal rights in the guardianship of infants. We only get it when we go to law. I would ask the hon. and learned Member this question—Before the eyes of the law, is a woman equally with the father the guardian of her child until she goes to law? Has a mother as much right over her child as the father?
The CHAIRMAN: Does the Noble Lady wish to withdraw the new Clause?80
Viscountess ASTOR: I would like to leave it to the Committee. I hope the Committee will take a stand about it. Of course, I do not want to wreck the Bill.
Mr. LOCKER-LAMPSON: Perhaps it would be a little consolation to the Noble Lady to know that if she moves her next Amendment, I propose to accept it.
Viscountess ASTOR: I do not wish to wreck the Bill, I wish to use common sense.
Motion and Clause, by leave, withdrawn.
Schedule agreed to.
PREAMBLE.—(9 & 10 Geo. 5. c. 71.)
Whereas Parliament by the Sex Disqualification (Removal) Act, 1919, and various other enactments, has sought to establish equality in law between the sexes, and it is expedient that this principle should obtain with respect to the guardianship of infants and the rights conferred thereby:
Viscountess ASTOR: I beg to move, after the words "rights" ["the rights conferred"] to insert the words "and responsibilities."
Mr. LOCKER-LAMPSON: This is not an unimportant Amendment, and I have very great pleasure in accepting it.
Amendment agreed to
Bill, as amended, ordered to be reported to the House.
The Committee rose at Twenty Minutes past Eleven o'Clook.81
THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:
Short, Mr. (Chairman)
Craig, Mr. Ernest
Davies, Major George
Davies, Mr. Rhys
Hall, Captain W. D'Arcy
Locker-Lampson, Mr. Godfrey
Milne, Mr. Wardlaw-
Morrison, Mr. Hugh
Slesser, Sir Henry
Smith, Mr. Rennie
Thompson, Mr. Luke
Watson, Sir Francis
Williams, Mr. John82