24 APRIL 1886, Page 9


THE excitement of this Session, when we are thrown back against our wills to defend first principles, which many of us had supposed were finally settled, makes all more ordi- nary measures much less interesting than usual. Otherwise there can be no doubt that the Bill which is now on the verge of becoming the Guardianship of Infants Act, 1886, would have attracted more attention than it has done. The Bill, in its original shape, was introduced by Mr. Bryce, in 1884. It has since then been recast by the House of Lords, and is now a Government measure. By dint of the activity of the new House of Commons, the Bill was got through its Committee stage last week, and it now stands for its third reading. As it has alr ady passed the House of Lords in very much its present shape, there can be no doubt that it will become law in the course of a few weeks.

The Bill deals with a most difficult and often very distressing subject, and abrogates two very great defects in the law. The first improvement is that it curtails the extravagant doctrine of the father's rights over his children, which have not been up to the present time by any means dependent on the fulfilment of his duties. The doctrine of the Roman law has, as is well known, lingered on in our judicial decisions down to the present time. To say that the present law can be traced almost unaltered to a time when a man's wife, as well as his children, were held to be in his personal custody, will show how very little the present state of the law is adapted to modern con- ditions. Few will doubt that the modern conception of marriage is an improvement on the ancient marriage of the Romans. The archaic Roman marriage was based on tribal, and not on individual considerations. It was practically aban- doned by the Romans themselves as their civilisation developed. The modern marriage is a free contract between two rational beings, who can give or withhold their consent, and make mutual, though not the same, vows to each other. The posi- tion of the mother follows in practice the position of the wife. She is consulted about her children. She has an opinion about their education, and it is generally acknowledged that her opinion ought to have weight. In well-regulated households, she holds a position with regard to her children quite equal to that of her husband, and many sons and daughters can bear witness to the paramount influence of their mothers on their subsequent careers. For these cases, always the vast majority, no legislation is necessary. It is only in cases where the parents cannot agree as to how their children should be brought up, where the parents separate, or where one parent is a person unfit to bring up children at all, that the law is obliged to interfere. Now, there seems to be no ground in reason why the two parents should in these cases be treated differently by the law. Nevertheless, the law has up to the present insisted upon the sacredness of the relation between father and child, but has entirely omitted to insist that the relation between mother and child is equally sacred. Parental responsibility, in the language of judicial decision, is, without exception, a synonym for the responsibility of the father. That responsibility has been held to be so sacred and inviolable, that nothing but the actual moral corruption of the child has been held to be a sufficient ground for judicial interference. The wishes of the mother, on the other hand, have not hitherto even been consulted. Her responsibility, so far from being inviolable, has not been acknowledged at all. She has only been an agent for the father, and could only act on his authority. If this appears incredible to the lay reader, we would refer him to some quota- tions from judicial decisions given in the number of the Westminster Review for April, 1885. On the other hand, the father's right has been considered so " sacred," as frequently

to override the benefit of the child, which is, of course, the essential and vital consideration in dealing with cases of this kind. It has been laid down that a man " may be a person from whom the discreet, the intelligent, and the well disposed, exercising a private judgment, would wish his children to be, for their sakes and his own, removed," without rendering him- self liable to judicial interference. In such a case as this, even if the mother was the most admirable and judicious woman, her wishes could have no influence where the Court was appealed to. More than that, the father may be both immoral and drunken, but if such conduct be only indulged in without the knowledge of the child, he is still the absolute disposer of the child's destiny. In a recent well-known case, the three Judges of the Court of Appeal were unmistakeably shocked and disgusted at the capricious and cruel conduct of the father in separating his child from her mother. But Lord Justice Cotton expressed the conclusion of law, to which the Court was obliged to come, when he declared that, "it is not in our power to go into the question as to what we think is for the benefit of this ward." The benefit of the child being the central question, it ought to be the cause of some satisfaction to those who have to obey the law, as it certainly will be to those who have to administer it, that the new Act will provide that in future " the welfare of the infant," and " the wishes as well of the mother as of the father," are to be taken into con- sideration before a decision is arrived at. We are by no means advocating any legislation which would have the effect of deadening the responsibility of the father. The feeling of responsibility of fatherhood is, as an historical fact, at the basis of the institution of marriage. But there is no reason why that responsibility should be uncontrolled. The benefit of the child should be the first thing looked at, even if it necessitates handing the child over wholly to the mother, and taking the control of it entirely from the father's hands. To do so will be a grave responsibility, but we do not doubt that the discretion will be very cautiously exercised.

The other alteration of the law provided for in the Bill is as to the appointment of guardians after the death of one or both parents. By the present law, the mother of a fatherless child is only its guardian on sufferance. She is not its guardian if the father has appointed any other, and the Court can appoint a guardian in opposition to her wishes on the application of the dead father's relatives. The mother is only legally the guardian of her fatherless child in case the father has appointed her its guardian. The Bill provides that on the death of the father, the mother, if surviving, shall be the child's guardian, either alone when no guardian has been appointed by the father, or jointly with any guardian ap- pointed by him. And in future, if after the death of the father the Court is applied to, the guardian appointed by it is to act jointly with the mother of the child. Again, under the present law, the mother, even if she survives her husband, and even if the husband has appointed no guardian, cannot appoint a guardian to her child. Under the Bill, however, she is per- mitted to do so, if she survives her husband ; and in case he has appointed a guardian. the two are to act jointly. The mother may also, during her husband's lifetime, provisionally appoint a guardian to act jointly with the father, in case she dies in his lifetime ; but such an appoint- ment will not be valid unless confirmed by the Court on its being made clear that the father is unfitted to be the sole guardian of his children. The Court may also remove any guardian, if it appears needful to do so, in the interest of the child ; and any application under the Act may be made in a county court.

From the above description it will be apparent that the Bill is conceived in a spirit of moderation and caution. It does not propose to disturb the relations of husbands and wives, unless they appeal to the law for a decision. It makes no declaration which involves any question of the equality of women with men, nor does it destroy the paramount authority of the husband and father. It curtails that authority, doubt- less, but only in the interests of the child. The one clause which weals to go beyond prudence and common-sense is that which makes it the duty of the Court to go into the conduct of the parents " when a decision as to the custody of the child has to be made. We hope that the judicial interpretation put upon that instruction will be strictly limited to the conduct of the parents as it affects the child. It is preposterous to think that it is either just or expedient to make parents who are already engaged in a dispute which may widen at any moment into lifelong separation, if it has not already so ended, enter for a competitive examination, of which their whole lives are to form the subject, in order to discover who has the best right to their child. Such a right does not and ought not to exist. It cannot be too definitely or too strongly laid down that the only right in a parent depends not on any merit in him or her, but on the welfare of the child alone. But it is because we are convinced that the changes in the law to be effected by the new Act are for the welfare of children whose parents, for whatever reasons, good or bad, cannot agree, that we welcome the changes which the Act will effect.