The law thus came to tolerate or even to welcome the involvement of the courts in resolving issues about children’s upbringing; yet the wife was still denied legal parental authority over her own children unless and until a court gave her rights to custody, care and control or access on the breakdown of her marriage. Not until 1965 was there any further legislative initiative on this subject. In that year, Dame Joan Vickers⁴⁸ obtained leave⁴⁹under the ten minute rule to bring in a Bill to remove this manifestation of continued discrimination against women. She claimed that to deny any legal right to a mother in the upbringing of her children was not only wrong in principle but also created a host of more mundane practical problems. For example, the mother had no legal right to permit her child to marry, no legal right to authorise withdrawals from the child’s Post Office Savings Bank, and she had no legal right to consent to surgery on the child. In particular, the requirement of the Passport Office that any application for a passport in the name of a child should be accompanied by the explicit consent of the child’s legal guardian caused resentment, since it prevented a separated mother from independently obtaining a passport for her child.

The grievance about the issue of passports could be (and was soon) dealt with by administrative action;⁵⁰ but more fundamental reform was needed. In sharp contrast to the situation in the 1920s, there was no real disagreement; and both Labour⁵¹ and Conservative⁵² parties published reports urging that the legal inequality of wives in this respect be remedied. In 1973 the Conservative Government introduced legislation providing that a mother should have the same rights and authority as the law allowed to a father and that the rights and authority of mother and father should be equal.⁵³ The Act did not require both parents to agree on a particular course of action; instead it empowered mother or father to act alone⁵⁴ but provided that the court could resolve any specific (p.575) issue⁵⁵ on which the parents did not agree.⁵⁶ Mrs Hubback’s view that the 1925 compromise would provide a firm foundation for the passage of legislation giving full equality was at last vindicated.⁵⁷

Significance of equal authority legislation

From the perspective of the twenty-first century it may seem astonishing that anyone should ever have questioned the principle that both parents of a child ought to have legal authority to take decisions about their child’s future. And yet as recently as 1987 Parliament denied legal parental authority to the father of an illegitimate child precisely because of fears that a man who had never had any real commitment to the child or involvement in the child’s upbringing might abuse any authority which the law accorded him.⁵⁸ The fact that having legal authority is regarded as at least symbolically important⁵⁹ is evidenced by the large number of applications⁶⁰ made in each of the closing years of the twentieth century by fathers of illegitimate children for orders giving them parental authority,⁶¹ by the willingness of the courts to accept that to make such an order will often be in the child’s interests even if the father has no immediate prospect of exercising that authority or having any factual relationship with the child,⁶² and perhaps most of all by the readiness of the Blair Government to promote legislation attributing such authority at least to a father who is registered as such.⁶³

(p.576) With the benefit of hindsight, Sir Claud Schuster’s fear⁶⁴ that to give both parents authority over their children would be ‘to substitute a legal for a domestic forum in every household; to multiply causes of strife, and to bring into the courts, to the encumbrance of their proper business, a multitude of trivial disputes’ can be seen to have been unfounded. The Guardianship Act 1973 did provide⁶⁵ machinery for a parent to ask the court to resolve an issue about which there was disagreement, but parents who are not separating do not in practice ask the court to resolve a disagreement⁶⁶ about their children’s upbringing. There has been no reported example of an application having been made.

The opposition to equal parental authority legislation reflects a more general reluctance to encourage or even allow the courts or other agents of the State to intervene in the private realm of family life;⁶⁷ but if parents split up it is obvious that someone may have to resolve disputes about what is to happen to the children. No one therefore questioned the need for the Divorce Court to have power to make orders about the children’s upbringing, and the Matrimonial Causes Act 1857 provided that in judicial separation nullity and divorce proceedings the court could make such orders⁶⁸ with respect to the custody maintenance and education of the couple’s children as it deemed ‘just and proper’.⁶⁹

For many years the existence of this power did not give rise to much discussion. The issue of ‘custody’ was secondary to the question whether the court would grant the decree or not; and if it did do so it would usually refuse to grant custody to a mother found to have committed adultery. In this way, Victorian judges gave effect⁷⁰ to the belief that it would ‘have a salutary effect in the interests of public morality that it should be known that a woman, if found guilty of adultery, will forfeit… all right to the custody of or access to her children’.⁷¹

Gradually a somewhat more charitable view was taken, at least in relation to allowing the adulterous mother access to children who were in the legal custody (p.577) of the father.⁷² But not until the end of World War II did it become fairly generally accepted⁷³ that the fact that a mother had committed adultery was not necessarily inconsistent with her being a good parent to her children.⁷⁴ Only then did the courts begin to emphasise⁷⁵ that since 1925⁷⁶ the welfare of the child had been statutorily declared to be the ‘first and paramount’ consideration in determining questions about a child’s upbringing.⁷⁷ But it remained true that the question of who ‘won’ the divorce case could (and often would) also have an influence on the orders made about children, and this seems to have led to behind-the-scenes bargaining:⁷⁸ a mother who did not want a divorce might agree to drop her defence and even herself petition on terms that the husband would not seek care and control of the children but would be allowed ample access to them.⁷⁹

(p.578) The Divorce Court’s role: protecting children against parental selfishness?

In 1947 the Denning Committee on Procedure in Matrimonial Causes⁸⁰ concluded that in practice the divorce process subordinated the welfare of the children ‘to the interests of their parents’.⁸¹ The Committee believed that divorced parents had ‘disabled themselves from fulfilling their joint responsibility’ and regretted that the courts’ procedures were ‘but poorly fitted’ for safeguarding the children’s interests.

The Denning Committee made two recommendations intended to mitigate the defects in procedures which it had identified. First, the Committee thought that the judge should in all cases deal with the future of the children on the same day as he dealt with the divorce. This proposal was never implemented. Secondly, the Committee urged the appointment of Court welfare officers who would have access to all petitions and be empowered to report to the court.

The immediate impact of these recommendations was not great;⁸² but in the long term the Report was influential: in particular, whilst the Committee was careful to distinguish between the judicial role to be discharged by a court on the one hand and the social work role of investigation to be carried out by welfare officers on the other, the Committee envisaged a role⁸³ for the court in monitoring (p.579) parental decisions which would certainly have surprised Sir Claud Schuster and the others who had so forcefully argued against involving the courts in ‘trivial disputes’ about children’s upbringing. Moreover, the notion that starting divorce proceedings automatically rendered the family liable to scrutiny and report went some way to making the civil justice system part of the machinery of state policing, to which some were strongly hostile.⁸⁴

The 1956 Royal Commission on Marriage and Divorce⁸⁵ was even more outspoken about the effects of divorce on children:

‘There is a wealth of testimony as to the effects on children of the breakdown of normal family relationships. Where family life breaks down there is always the risk of a failure to meet fully the child’s need for security and affection. If in fact there is such failure, the child may become so emotionally disturbed as to reject the influences of the family and this may result in anti-social-behaviour…. Where divorce takes place it is … essential that everything which is possible in the circumstances should be done to mitigate the effects upon the child of the disruption of family life.’

The Morton Report’s recommendations were much more radical than Denning’s. Its starting point was (in essence) that the parents could not be trusted to invoke the court’s powers and processes. The ‘root of the trouble’ lay in the fact that divorce was regarded as a matter for the husband and the wife, and for this reason there were ‘no adequate means of ensuring that someone is specially charged to look after the children’s interests’. For the Morton Report, it was not cases in which the parties contested custody issues which gave rise to concern: the parties would be only too ready to tell the court of each other’s failings, and the court had the means of deciding where the truth lay.⁸⁶ The Morton Commission’s concern lay in precisely the fact that custody was not, in the great majority of cases, contested. In those circumstances, even though the applicant would not always be the most suitable person to care for the children, the court would rarely be able to make any order other than that which the parties had agreed since the procedure was ‘not such as to allow the judge to satisfy himself about the position of the children’.⁸⁷

The Morton Commission heard a great deal of evidence about the divorce process and children, and recorded that the

’solution which received most support was that the responsibility should be placed clearly upon the court, which should consider the arrangements for the children in every case, whether the question of custody was raised by either or both parties or not’.⁸⁸

The Morton Report accordingly recommended a procedure under which the court would have an inquisitorial duty to investigate the arrangements proposed (p.580) for the children’s upbringing, and satisfy itself that those arrangements were satisfactory or at least the best that could be devised in the circumstances;⁸⁹ and the Matrimonial Proceedings (Children) Act 1958⁹⁰ gave effect to those recommendations.⁹¹ Thenceforth, a parent seeking divorce had to file a statement of the arrangements made for the care and upbringing of children, and the marriage would not be ended unless and until the court had expressed its satisfaction.

The Morton Report also recognised that increasing divorce meant that to define the class of children with whom the court was concerned by reference solely to children of the parties’ marriage⁹² no longer reflected the realities of family life; and that the courts’ powers and duties should be exercisable over children of either spouse (whether legitimate or illegitimate) living in the family at the time of the break-up and also other children living in the family and maintained by one or both of the spouses. The Matrimonial Proceedings (Children) Act 1958⁹³ provided that children of either party accepted by the other should be subject to the courts’ powers and duties; and the Matrimonial Proceedings and Property Act 1970⁹⁴ further widened the class to extend to any child treated by the spouses as a ‘child of the family’. No longer was any biological or formal legal link required to make a child a member of the divorcing parent’s family.

The effect of the 1958 legislation⁹⁵ was extensively researched,⁹⁶ and detailed (p.581) changes were made over the years. The procedural changes made by the 1958 Act were generally thought to have done something to reinforce the concept that the Divorce Court had inquisitorial functions of a wholly different kind from those of the common law courts, and in that sense are of considerable conceptual importance. But in practice the role of the court under the 1958 procedure was somewhat ambivalent, and often the judicial investigation was restricted to a quick perusal of the petitioner’s written statement (in reality, once again often not wholly accurate)⁹⁷ and his or her (usually monosyllabic) response to a single formal question put by counsel at the hearing of the petition.⁹⁸

Significant modifications had to be made when the so-called ‘special procedure’ for dealing with undefended divorce cases was introduced.⁹⁹ It was politically necessary to do something to demonstrate the law’s concern to protect the children of divorcing parents;¹⁰⁰ and an elaborate system of judicial ‘children’s appointments’ was therefore created. Husband and wife no longer needed to go before any judicial officer to get a decree nisi, but they would still have to file a statement of the arrangements proposed for the children and the petitioner would have to attend before a judge sitting in private for the purpose of considering what was proposed. A research project found this system of Children’s Appointments to be largely ineffective¹⁰¹ and the consensus of opinion seemed to be¹⁰² that the court’s role was rarely more than symbolic. The Children Act 1989 abolished the appointment system;¹⁰³ and the Act also introduced substantial changes reflecting a much more restricted view of the practicability and (p.582) even the desirability of the courts seeking to supervise and intervene in parental arrangements. Parents still had to produce a written statement of the arrangements to be made; but the court’s task was no longer to consider whether the arrangements were ‘satisfactory’. Rather the question was whether the facts indicated a need for the court to exercise its power in relation to the child.¹⁰⁴

In conceptual terms, the Morton Report had tried to make divorce less a matter for the parties and more a matter for an investigation of public interest; and the Children Act 1989 reversed the trend. The underlying aspiration remained unchanged, however. The Morton Report had had high expectations for the ‘positive and beneficial’ effect of the legislation it proposed: the interests of children would become just as important as the question whether the marriage should be dissolved; and the Report assumed that the scheme it envisaged would encourage a sense of parental responsibility. At the turn of the century, the statute book declares Parliament’s view that broken marriages should be brought to an end ‘with minimum distress to … the children affected’ and that questions should be dealt with ‘in a manner designed to promote as good a continuing relationship between the parties and … [the] children … as is possible in the circumstances’¹⁰⁵ and a great deal of effort is being put into attempts to safeguard the welfare of divorcing parents’ children.¹⁰⁶ But the effectiveness of such measures is difficult to evaluate; and it remains to be seen what impact they have on safeguarding children’s interests.

It is certainly now easy to demonstrate that the Morton Report’s belief that to make parents realise at the outset their obligations to their children would lead to some of them abandoning the idea of divorce for the sake of the children’¹⁰⁷ was almost certainly not well founded: it is manifestly clear that the outcome of the 1958 scheme and its subsequent modifications did not lead to any reduction in the number of children affected by divorce. In 1956 there were some 20,000 such children each year; by the end of the twentieth century the parents of some 150,000 children aged 16 or under divorced each year in England and Wales.

(p.583) Moreover, whatever the case for and against these attempts to demonstrate an effective commitment to mitigating the adverse impact of divorce on children¹⁰⁸ it seems that contested litigation about such matters as contact had (perhaps because such litigation provides an officially sanctioned procedure whereby the parties can seek the emotional release not otherwise available to them) escalated dramatically in the closing years of the century.¹⁰⁹ There were contested applications for contact in one in every five divorce cases in which there were children,¹¹⁰ and the number of court orders had risen by more than 100% over a five-year period. Inevitably, these proceedings involved precisely the bitterness, distress and humiliation which it was the declared objective of the 1969 legislation to minimise. It must also be said that the belief that the new divorce law would reduce the illegitimacy rate has been dramatically falsified: in 1971, there were some 74,000 illegitimate births in the United Kingdom or about 8%; but by 1998 there were no less than 270,000 such births or not far short of 40%. (It is of course true that these statistics may reflect social change—not least a sharp decline in the proportion of couples who believe that marriage is the only appropriate basis for a long term sexual relationship—not foreseen at all in 1969.)

The 1958 legislation, by accepting the policy that courts and welfare officers should have a responsibility for monitoring arrangements which the parents have agreed for the upbringing of their children, accepted the potential for increased State intervention in family life. But the scope of that intervention in practice pales into insignificance when compared with the greatly increased role adopted, in the course of the twentieth century by the administrative agencies of the State. First, however, we need to outline the powers of the court to take decisions in the exercise of the so-called wardship jurisdiction; and to consider the question of how and when parental authority yields to the child’s right to make his or her own decisions.

It had long been accepted that the Crown, as parens patriae¹¹¹ had the right and duty to protect the person and property of children and others (for example (p.584) those once described as ‘lunatics’ or ‘idiots’)¹¹² in need of such care. By Victorian times, there was no dispute that these functions were delegated¹¹³ to the Lord Chancellor and the other judges of the Court of Chancery;¹¹⁴ and (in theory at least) they could do whatever needed to be done to protect the ward’s welfare.¹¹⁵ Readers of Charles Dickens’ novel Bleak House have a vivid picture of how this so-called inherent jurisdiction was exercised over the children and young people¹¹⁶ who came to be called ‘wards of court’.¹¹⁷ But these children were, at the beginning of the twentieth century, few in number. This was because the court had no effective means of acting unless there was property which could be ordered to be applied for the use and maintenance of the child. As Lord Chancellor Eldon put it: the court could not take on itself the maintenance of all the children in the country.¹¹⁸ Accordingly, the main function of the wardship jurisdiction at the beginning of the twentieth century was restricted to protecting wealthy orphans and their property. In the words of the Chancery Division judges’ evidence to the Committee on the Age of Majorityin 1967:¹¹⁹

The typical Ward of Court in the nineteenth century was

‘a wealthy orphan—the ‘pretty young ward in Chancery’ of the Lord Chancellor’s song in lolanthe. The chief function of the Court was to supervise the administration of the ward’s property by his or her guardian and, if she was a girl, to consider—and if thought (p.585) fit to approve—proposals for her marriage and to see that her property was safeguarded by a suitable marriage settlement’.

It is true that the Matrimonial Causes Act 1857¹²⁰ gave the Divorce Court power to direct that children of divorcing parents be made wards of court; but in practice it seems that this power was normally exercised only in cases in which substantial property was involved.¹²¹ The wardship jurisdiction was thus for long only of concern to the wealthy; and even half way through the twentieth century there were only some 60 applications to make children wards each year.¹²²

This association between property and wealth was originally reinforced by the procedure used for invoking the court’s jurisdiction. The mere filing of a Bill in Chancery to which a child was a party immediately made the child a ward of court; and thenceforth no important step in the ward’s life (such as marriage or going abroad) could be taken without leave of the court.¹²³ But by the beginning of the twentieth century it was realised that parents (or others) could invoke the judicial power of the State by the simple process of settling a nominal sum of money¹²⁴on the child and then bringing proceedings, nominally for the administration of the trusts of the settlement but in practice to control aspects of the child’s life. Later, it was realised that the law prescribed no minimum sum for the purpose of making a child a ward; and in 1949 Lord Merriman Ρ told the House of Lords that children were being warded in this way by the ‘settlement’ of even a trifling sum of money—perhaps less than £5 in year 2000 values.¹²⁵

At the beginning of the twentieth century there were still cases in which a parent invoked the wardship jurisdiction as a disciplinary measure, possibly all the more effective because defiance of the parent and the court could lead to the child’s imprisonment:

In Re H’s Settlement¹²⁶ a 17-year-old boy had been intended for the army, but ‘gave so much trouble owing to his disregard of regulations, and in particular by staying away at night that the tutor with whom he was then placed declined to keep him any longer’. His mother made him a ward, but he persistently neglected to obey the directions about his education made by the judge. Worse, without seeking the necessary permission from the court, he married in church (p.586) after banns, giving false information about his age and address. The judge¹²⁷ committed him to Brixton Prison for contempt: ‘if ever there was a case in which it is right to resort to the ultimate sanction, this is … such a case’. The judge hoped that this would be a ‘salutary lesson to this boy and teach him that he, as well as the rest of us, must obey the orders of those who are in authority or run the risk of serious personal discomfort’. History does not reveal whether these hopes were fulfilled.¹²⁸

Over the years, it may be that the emphasis of the wardship jurisdiction changed from protecting the rights of parents to seeking to ensure the welfare of the young people concerned.¹²⁹ The principle (so a Chancery judge¹³⁰ put it in 1967) was that the court took the child into its care, and decided how and with whom he or she was to be brought up and all other relevant matters. But parental concern about romantic attachments and marriage was still what fuelled many cases; and in 1967 the Latey Report noted¹³¹ that wardship enabled the court to act ‘to protect the young and inexperienced from folly and exploitation up to the age of 2Γ.¹³² This protection was reinforced by the power of the court not only to decide who should have ‘care and control’ of the ward but also to make orders binding on the ward (for example, directing the ward to reside at a specified place) and also to order third parties to refrain from associating or communicating with the ward.¹³³ In the 1960s the potential of wardship as a means of attempting to control young peoples’ behaviour became much more widely understood; and the fact that legal aid had been made available meant that even people of modest means could ward their children. The judges became concerned about the apparent increase in the number of applications¹³⁴involving young people ‘usually young women’¹³⁵ in their later teens who (p.587)

‘resent the fact that their parents have made them wards. The relationship between the girl and her parents is further embittered and the rift widened. The girl’s determination to pursue the association is hardened and she may even deliberately become pregnant. Any attempt to control her from a distance by a ‘non-association’ order is usually foredoomed to failure. Committal to prison leaves a scar; it can hardly do any good. The Court finds itself in a helpless and intolerable position; its orders flouted; the law and the administration of it by the Court brought into disrepute and the public confidence in the administration of justice undermined. The time, effort and expense are very heavy …’.

There were, no doubt, some cases in which the court’s intervention was effective at least in the short term. For example:

In Re F (orse. A) (A Minor) (Publication of Information)¹³⁶ Lord Denning MR referred to an association between a girl of 15 and a man of 28—’ a very bad character. He had a long criminal record with 18 convictions. He took drugs and wore long hair. He was one of a ‘hippy’ gang who did no work but squatted in empty premises. He gave this young girl drugs. He had sexual intercourse with her, knowing that she was only 15’. The court ordered that the child should reside at her parents’ home or such other place as the Official Solicitor should approve, and that the man should not harbour her.

But it was becoming part of the conventional wisdom that the law had little part to play in deterring young people from engaging in behaviour which their seniors considered unwise;¹³⁷ and it became apparent that the law could easily be made to appear ridiculous:

In Re Dunhill·¹³⁸ a 20-year-old woman, living with her widowed mother whilst trying to establish a career as a fashion model, was made a ward on the application of a night club owner. He apparently intended to ward all the young women working in the club as disk jockeys in an attempt to stop their working for a rival entertainer operating from the Goodwin Sands. No doubt he was aware that this move would attract publicity. When he told Miss Dunhill what he had done she responded that he ‘must be joking’; but she soon discovered she had to apply to the court for an order striking out the proceedings. The judge described the club owner’s action as an abuse of process, and noted the potential for trouble implicit in the continuance of the existing procedures.

(p.588) There was another, perhaps even more telling, factor. As the Latey Report¹³⁹