Parents and Children: Legal Authority in the Family 1
This chapter first deals with the question: who is entitled to take decisions and exercise parental authority over children? It also deals with court procedures which sometimes allow the exercise of that authority to be questioned—for example, when the parents divorce, or by making a child a ‘ward of court’. Finally it gives a brief account of the increasing recognition given to the claims of a mature child to take his or her own decisions, and the consequent erosion of parental authority as traditionally understood by the legal system.
Parental power is paternal power: the monstrous legal fiction2
Who was entitled to exercise the authority to decide how a child should be educated, what religion he or she should observe, and so on? As we have already seen, the answer at the beginning of the twentieth century was clear and simple. The father of a legitimate child3 was exclusively entitled to exercise parental authority over the child;4 and the child’s mother had no legal right to custody or care and control.5 Of course, in this as in other respects, the law does not necessarily (p.567) reflect everyday life. No doubt the future Lord Chancellor, Sir John Simon,6 spoke for many when he told the House of Commons in 1924 that his own father (a nonconformist Minister in Manchester) would have been ‘greatly astonished’ to learn that he alone had the right to decide not only such comparatively trivial issues as whether a young child should be allowed to go to watch the Lancashire cricket team but much more important and difficult matters such as whether a child suffering from an inflamed throat should be subjected to fashionable but dangerous tonsillectomy, and that the child’s mother had ‘nothing to do’ with such matters.7
The fact that the law denied to a wife any legal right to the custody or care and control of her children may not have been important in daily life to most couples living together in modest contentment; but even so a law which denied the mother the legal status of being the parent of her own child8 could hardly be regarded as satisfactory by the women’s groups committed to achieving ‘real equality of liberties status and opportunities between men and women’.9 These groups became increasingly influential after 1918 (when women won the right to vote in general elections10) and the law seemed dramatically to underline the concept of the wife as a mere chattel whose identity merged in that of her husband.11 It seemed intolerable that this principle should be allowed to govern the legal structure supporting the most basic of human relationships. Of course, men of a conservative disposition12 could and did claim that these grievances (p.568) were a pre-occupation of the middle-class intelligentsia; and that sensible working class wives were totally indifferent on the matter. But the women’s groups were able to demonstrate that the law had serious, and adverse, practical consequences:
‘The father may use his power over the children as a means to induce the mother to do what he wishes, by the threat of removing them from her. He can take the children away from her entirely, and entrust them to the custody of a third party without her consent…. The mother may apply to the High Court or to the County Court, but the costs are prohibitive to the poorer classes.’13
For example in one case taken from the files of NUSEC:
A ‘perfectly sober, respectable woman’ whose husband insisted on sending her six-year-old son to live in Canada with an aunt was ‘broken hearted’ but had no effective redress against an adamant father.14
It was not difficult to present a case which to the year 2000 reader seems overwhelming. As the President of NUSEC, Eleanor Rathbone, wrote:15
‘It is surely … a great positive disability that a wife, so long as she nominally lives with her husband, has no legal right to any say or part whatever in the management of their children, nor any remedy (so far as those over five are concerned) against being totally separated from them … [The father’s exclusive rights are not even] dissolved by death, since even when he leaves his children entirely unprovided for, he has the power of directing by will the religion and manner in which they are to be brought up and of appointing a guardian who, acting jointly with the wife, must see to it that so far as possible the father’s wishes are carried out … If comparatively few husbands abuse their power in this respect, it is because the sense of justice of the ordinary man refuses to let him take seriously the monstrous legal fiction that a man has a primary right to the sole control of the children whom a woman has borne with great suffering and at the risk of her life and to whose care nature and custom require her to devote herself as the chief work of the best years of her life.’
NUSEC (probably the leading women’s group) put a commitment to legislation giving wives equal rights to the legal guardianship of their children in the forefront of its programme; the leaders16 of the political groups dominating the post-World War I coalition Government gave an election pledge17 to remove ‘all existing inequalities of law as between men and women’; and Bills giving wives (p.569) equal parental authority over the children were introduced into Parliament.18 Yet no legislation dealing with the matter was enacted until 1925; and in fact the Guardianship of Infants Act of that year did not create the legal equality which NUSEC had claimed to be the ‘keystone’19 of its proposals. Another half century went by before a Conservative Government in 1973 eventually brought forward legislation giving a mother the same rights and authority as the law allowed to a father and stipulating that the rights and authority of mother and father should be equal.20 What accounts for this long delay and what implications did this have for the law and the family?
The Guardianship of Infants Act 1925
Leaving on one side the view (still held by some in the 1920s) that men and women were ‘not equal, they never will be equal, and you cannot make them equal’21 there were those who believed that ‘duality of control’ militated against the child’s interests: children should be in no doubt where authority lay.22 Officials in the Lord Chancellor’s Office, the Home Office, the Ministry of Health and even from the Parliamentary Counsel were also strongly opposed to conceding equal parental authority, and this opposition from within the Government machine was particularly effective. It was based on the belief that, ‘from the purely administrative point of view’, it was essential there be a single identifiable person in a household who could take the decisions required by (for example) the Poor Law and the legislation dealing with vaccination and birth registration. As Sir Claude Schuster advised the Lord Chancellor: the principle which equal authority legislation embodied was ‘nonsense’, because if two persons have equal rights there will be a deadlock ‘whenever there is a difference between them’.23
The Lord Chancellor’s officials gave particular weight to a second and more general argument against conceding equal authority. This was that there would be no real alternative to referring disputes between the parents about how (p.570) authority should be exercised to the court; and that this would be unacceptable for two slightly different reasons. First, it was said that intervention by a court (and especially by the magistrates’ court) into the private realm of family life was intrinsically undesirable and would inevitably introduce an element of discord, never thereafter to be eradicated, into the family. Secondly, it was said that the issues involved were not really justiciable. Courts (said24 Sir Claud Schuster) are
‘concerned … with the definite ascertainment of the rights of the parties, a party on one side and a party on the other, and if they can ascertain what the right is then the court is inevitably led to its decision. There are no rights here. It is a question of discretion. To take a ridiculous instance, a dispute whether a child is to go to one school, or to another school—how on earth is the Court going to deal with that?’
The two opposing positions seemed difficult to reconcile. From the Government’s point of view, Sir Claud Schuster declared27 that ‘no compromise is possible’; whilst NUSEC had publicly committed itself to the proposition that it was ‘absolutely impossible’ to give up the principle of equal guardianship for joint rights and responsibilities. But Ministers and officials, faced with the possibility that the women’s groups would succeed in humiliating the Government by carrying legislation against opposition, produced draft legislation which was accepted by NUSEC as embodying the ‘main principles’ for which the women’s organisations had fought. In reality, the draft Bill still denied married woman the equal parental authority which it had been NUSEC’s objective to achieve.28 But the Bill was enacted as the Guardianship of Infants Act 1925; and it seems that many were satisfied that this brought to an end the hundred year long campaign by putting fathers and mothers29 into an equal position in regard to their rights and powers over their offspring.30 They were deceived.
(p.571) The Act did (unusually)31 contain a preamble stating that it was expedient for the principle of equality in law between the sexes, as embodied in the Sex Disqualification (Removal) Act 1919 and other legislation to Obtain with respect to the guardianship of infants and the rights and responsibilities conferred thereby’.32 But the substantive provisions of the Act still denied a wife any legal authority over her child during marriage: she could only obtain such authority by seeking a court order. It is true that the Act provided for applications to be dealt with in the magistrates’ court as well as in the High Court and county court33 (a provision intended to make it possible for working-class families to have the access to justice which would have been denied them by the cost of proceedings in the superior courts) and that the Act provided for the child’s mother to have the same powers as the father to apply to the court in respect of any matter affecting the child.34 It is also true that the Act provided35 that in reaching decisions about a child’s custody or upbringing36 the court was to regard the child’s welfare as the first and paramount consideration, and ‘should not take into consideration whether from any other point of view the claim of the father’ was superior to that of the mother or the claim of the mother was superior to that of the father. But in only one respect did the Act give the mother a measure of equality not dependent on her making application to the court: the Act gave (p.572) each parent the right to appoint a testamentary guardian to act jointly with the surviving parent and thus removed a husband’s right to control the child’s upbringing beyond the grave.37 This was of largely symbolic importance.
The Guardianship of Infants Act 1925 did not give mothers the legal rights which they had demanded; but the provisions of section 1 of the Act—requiring the court to regard the child’s welfare as the ‘first and paramount’ consideration—did greatly increase the potential role of the courts in resolving issues about children’s upbringing; and the scope for judicial activism was further increased by a decision of the House of Lords in 1969.
In J v. C38 the question for decision was whether a 10-year-old child should be returned to his ‘unimpeachable’ natural parents in Spain or continue to be in the care of the English foster parents who had looked after him for most of his life. The House of Lords held that section 1 of the Guardianship of Infants Act 1925 required that the child’s welfare determine the outcome; and the Law Lords believed that to return a child who had been brought up as an English boy with English ways to a strange environment and to parents who would inevitably have difficulty in coping with his problems of readjustment would be incompatible with the statutory directive to regard the welfare of the child as the ‘first and paramount’ consideration. Surprisingly to anyone knowing the background to the 1925 Act, the House of Lords overruled a 1931 Court of Appeal decision39 that the wishes of the child’s parents about his or her upbringing were to be decisive unless the parents had in some way neglected their duties. The Law Lords gave no weight at all to the fact that in the course of the five-year gestation of the 1925 Act no one had suggested (whether in parliamentary debate, in the extensive proceedings of the Joint Select Committee, in the departmental papers, or indeed in the claims made by the Bill’s sponsors) that the legislation could be pressed into service to justify a claim by an outsider—whether an individual, or one of the organisations concerned with child welfare—to the upbringing of a child merely on the basis that the claimant could better promote the child’s welfare than the parents. Nor did the Law Lords seem aware that Slesser LJ40(who had delivered the leading judgment in the 1931 case) was particularly well-informed about the intentions underlying the guardianship legislation, (p.573) since it was he who (as Solicitor-General in the 1924 Labour Government) had chaired the meetings at which the compromise between the women’s organisations and the Government had been worked out and translated into statutory form, and it was he who had procured the approval of the Home Affairs Committee and of the Cabinet to that compromise.41
Taken to a logical conclusion J v. C42 would have authorised a major breach in the legal autonomy of the family unit; but subsequently the Children Act 1989 greatly restricted43 the power of the court to authorise a child’s removal from the family ‘simply on the basis that the state could do better for the child’ than the family. The fear—apparently live in the 1920s44—that the State would ‘steal your children’ was thus to some extent allayed.
The 1925 Act thus clearly had the potential to encourage recourse to the courts to resolve issues about the upbringing of children, but how far did it in fact do so? The fact that the Act allowed proceedings relating to child custody access and maintenance to be brought in magistrates’ courts (which, in contrast to the High Court, were open to the unrepresented poor)45 was certainly intended to make ‘the benefits of the Bill open to all classes’;46and (although the statistics are notoriously unreliable) it does seem that the number of cases involving children’s upbringing became significant.47 Those who had opposed the women’s groups would have seen this as a confirmation of the fears which they had expressed; and by the middle of the century it had become part of the conventional orthodoxy that the courts should play an important role in supervising the arrangements made for children, at least in cases in which the parents’ marriage had broken down.
(p.574) Equality attained: the Guardianship Act 1973
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.
Children of divorce
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.
The inherent jurisdiction of the High Court over children: wards of court
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.