State, Parent and Child: (1) Before the Welfare State
The State, Parent and Child: (1) Before the Welfare State
The nineteenth century had been a time of concern about the welfare of the country’s children. The attention of reformers first focussed on the plight of children employed, often for very long hours and in harsh conditions, in the factories and mines of the Industrial Revolution.2 Legislation, starting with an Act of 1802 restricting the hours which Poor Law ‘apprentices’3 were allowed to work in factories,4 was enacted piecemeal over the years.5In 1862 a Royal Commission was appointed to enquire into the employment of children and young persons in trades and manufactures not previously regulated by law. Its Reports provided a wealth of evidence of the appalling conditions in many (p.629) trades and industries; and the Commission made detailed recommendations for reform. In 1878 the Factory and Workshop Act consolidated the statutes and made comprehensive provision for regulating hours of employment and for control and inspection of the premises in which the young were employed as well as for the education of child employees.6
Central Government’s direct formal involvement with child welfare issues (which was greatly to increase in the course of the twentieth century) can be said to have started with the Home Office being made responsible for supervising the factories legislation.7 But it was one thing to inspect factories, quite another to dictate to parents how they should behave in the privacy of their homes. For long it was accepted that ‘to patrol industry on behalf of the young was England’s Christian duty’ but ‘to patrol the home was a sacrilege’.8
Protection or control?
Later generations may find difficulty in understanding how there could be any opposition to legislation which would prevent children of four or five years of age being dragged from bed at four in the morning and made to toil in the dark for perhaps 18 hours a day, sometimes chained to trucks which they had to drag on all-fours through mine shafts.9 But at the time there were many people who thought it better for children to be employed in a cotton mill or factory than to be running uncontrolled in the streets of the large industrial cities; and certainly there was a general concern (mingled no doubt with a measure of fear) about ‘the hordes of neglected and destitute children who frequented the streets begging and thieving, without homes or teaching or indeed anyone apparently to care for them’.10
One response to this nightmare was by philanthropists and religious bodies who sought to provide educational facilities ranging from the often primitive ‘ragged school’11 (intended to give children ‘some knowledge of the commonest (p.630) principles of morality and religion’ and the elements of literacy and numeracy)12 to more ambitious establishments in which some kind of industrial training was given to vagrant children and others. But where did the boundary lie between providing facilities which children and their families could use if they wished, and those which should be imposed on them?
In 1854 statute allowed certain ‘Reformatory Schools’ to be given official recognition,13 and empowered magistrates to commit young offenders to schools which had been certified; and in 1857 the Industrial Schools Act was passed to give unconvicted children in moral danger the same ‘advantages’ as children in reformatory schools.14 Magistrates were given power15 to commit children found begging or wandering without means of subsistence (and even a child whose parent claimed to be unable to control him) to an Industrial School16 where girls would be trained in the domestic duties to fit them for a life in service and boys would be taught the rudiments of tailoring or shoe-making or some other useful trade.17 In theory there was a clear distinction between the Industrial School and the Reformatory School (specifically intended for the training of youthfuloffenders)18 but in practice this was often blurred19 both in relation to the regime imposed on inmates and the functions of the institution;20 (p.631) and the introduction of compulsory elementary education by the 1870 Education Act tended to emphasise the ‘disciplinary’ element in any kind of training dependent on the making of a magistrates’ order.
Children’s homes: the problem of parental rights
Industrial Schools may often have been founded by philanthropically or evan-gelistically minded individuals or groups, but committal by magistrates’ order (and the fact that the schools in question had to be ‘certified’ by the Home Office) inevitably suggested a link with the coercive mechanisms of the State. This link was not present in the children’s homes21 set up (often with a religious motivation) on a large scale22 in the last 30 years of the nineteenth century to provide the care which parents either could not or would not provide.
At the end of the nineteenth century Dr Thomas Barnado,23 the most well-known person engaged in this work, had more than 4,700 children24 under his charge.25 But Barnado soon discovered that the parents of the children he had ‘rescued’ were not always grateful. Sometimes they came to believe that a child should not be brought up in Barnado’s brand of evangelical Protestantism, and (almost always with the financial and other support of a rival denomination) instituted habeas corpus proceedings26 so that the child could be moved to an institution controlled by the rival. In other cases, the parents’ motive was mercenary: they simply wanted a child returned so that he or she could earn a wage. As Karl Marx had pointed out, children sometimes needed protection from their (p.632) parents27 as much as from their employers. The problem was that even a cruel father has a
‘legal and almost indefeasible right to retain possession and control of his victim. In such cases, to remove the child beyond the range of the father’s influence may be the only means of saving it from a life of misery or destruction. Yet to do this … will require knowledge of the law, great care, and in some cases a considerable expenditure of time and money’.28
In 1891, in response to pressure, Parliament passed the Custody of Children Act which gave the court a discretion to refuse to enforce the parent’s right29 to custody if the parent had abandoned or deserted the child or otherwise so conducted himself as to make it inappropriate to enforce the parental right; but the problem of how to balance a parent’s natural right to care for his children against the child’s right to be protected from harm remained a source of concern well into the twentieth century.
The baby farm: Infant Life Preservation legislation
In contrast, there was no need for any balancing exercise where a baby’s life was at risk. All too often, the desperate woman who found herself pregnant gave up the baby she lacked the means to support for what was then often called ‘adoption’. The mother would hand the child over to a ‘baby-farming house’ which would agree to care for the child, perhaps in return for a small single payment (possibly as little as £5, or £300 in year 2000 values). These children were often starved, or neglected in other ways, with the result that ‘with rare exceptions they all of them die in a very short time’. Sensational publicity was given to the trial and execution of Margaret Waters, a woman baby-farmer convicted of murdering the children in her care.30 Pressure built up31 for something to be done.
A Select Committee on the Protection of Infant Life32 reported, giving horrifying details; and the Infant Life Preservation Acts 1872 and 1897 were enacted.33 (p.633) These Acts required paid carers to register with the local authority and thereby made the conditions in which the children were kept open to scrutiny in certain circumstances. But the legislation fell short of what was required for effective protection of the very young34against those who fostered them for profit, not least because the Poor Law authorities responsible35 for the inspection of premises in which children were cared for lacked the resources necessary to detect abuse.36
The child victim: the work of the National Society for the Prevention of Cruelty to Children
The evils of baby-farming provided much sensational copy for newspapers towards the turn of the nineteenth century; and this helped create a more general concern about the ill-treatment of children by their parents. A number of organisations were founded. In 1889 the London Society for the Prevention of Cruelty to Children37was reconstituted as the National Society for the Prevention of Cruelty to Children. In 1890 the NSPCC came under Royal patronage38 and soon took the lead in campaigning for reforms.39 Its most notable success was the campaign which led to the enactment in 1889 of the Prevention of Cruelty to, and Protection of, Children Act. The Act created both a general offence of ill-treating, neglecting, abandoning or exposing a child40 in a manner likely to cause the child unnecessary suffering or injury to health and more specific offences of involving children in begging and street-trading or singing.41 The Act also gave the courts useful ancillary powers (for example, to issue search warrants in cases where child abuse was suspected)42 and relaxed the common law rules about the circumstances in which the courts could hear children’s evidence.43
The Act not only dealt with cruelty by provisions for punishing guilty parents. In a provision of great significance for the future development of the law, (p.634) the Act gave the court power to commit the child of a parent convicted of cruelty or ill-treatment to the care of a ‘fit person’44 or relative; and the ‘fit person’ could retain the child notwithstanding any claim by the parent.45
The 1889 Act gave the courts significant powers to investigate what had happened within the privacy of the home, and it has been described46 as the ‘first attempt to deal comprehensively with the domestic relationship of parent and child’. But the Act did not take away all parental prerogatives: in order to overcome opposition from school teachers (who feared the Act would affect their right to use corporal punishment) the Act specifically provided47 that it did not affect the right of any parent, teacher or other person having the lawful control or charge of a child to administer punishment to the child.
Victims of misfortune
The campaigns for legislation aimed at cruelty attracted widespread interest and may perhaps have distracted attention from the fact that it was only a comparatively small number of children who were damaged by deliberate abuse, neglect48 or cruelty on the part of their parents. In Victorian England disease and poverty49damaged many more. But the nineteenth century was a period of great concern for public health; and there had been a number of measures primarily directed to protecting children from disease. In particular, vaccination against small-pox had—controversially50—been made compulsory: the parent was required to have his child vaccinated within three months of the birth.51 (p.635) Gradually, other public health measures52 directed primarily at children (and sometimes associated with the compulsory education introduced by the Education Act of 1870) were introduced.53 But it was the Poor Law which represented, however inadequately, the State’s main response to the special problems of the orphan and the destitute; and this involvement had a profound impact on the development of child law. As Lord Scarman was to put it in the 1980s:
The ‘poor law was the historic base from which Parliament advanced to meet the needs of the orphan, the deserted and the abandoned child’.54
The Poor Law: Benthamite rationality
The 1601 Poor Law had envisaged that the unemployed poor should be ‘set to work’—children being ‘apprenticed’55—but it also provided that necessary relief should be given to the impotent poor. The 1834Report of the Royal Commission on the Poor Law56 painted a gloomy picture of how the system worked in practice. The 1834 Commissioners claimed that in reality poor relief was ‘applied to purposes opposed to the letter, and still more to the spirit of the law, and destructive to the morals of the most numerous class of [the poor] and to the welfare of all’.57 In this view, the great abuse was that payments in cash or kind were made to the able-bodied. And even when the poor were compelled to enter the workhouse (as the Commissioners thought they should) this was often a laxly administered establishment in which
‘the young are trained in idleness, ignorance, and vice; the able-bodied maintained in sluggish sensual indolence; the aged and more respectable exposed to all the misery that (p.636) is incident to dwelling in such a society, without government or classification; and the whole body of inmates subsisted on food far exceeding both in kind and amount, not merely the diet of the independent labourer, but that of the majority of the persons who contribute to their support’.58
The 1834 Commissioners, apparently inspired with Benthamite zeal, proposed radical change; and the Poor Law Amendment Act 1834 gave effect to their proposals. The underlying principle was to be that of ‘less eligibility’.59 Relief should be refused save by admission to the workhouse; and the workhouse would ‘impose severely deterrent conditions upon its inmates’.60 Thus, husband and wife were to be separated from one another and from their children, inmates were confined to ‘the House’ and subjected to strict discipline, and amenities such as tobacco or even tea were not permitted. It is true that, in theory, education was provided for the children but practice was often different.61
‘Outdoor relief’ and children
The insistence of the 1834 Act on the principle that relief be given in the workhouse and nowhere but the workhouse gave rise to an immediate problem for it meant that children could no longer be apprenticed but had to be held in the House. This difficulty had to be dealt with by Statute: the Poor Law Amendment Act 1844allowed children to be bound as apprentices but also sought to ensure that the child would indeed learn a useful skill. In other respects the 1834 Act did not in practice work quite as had been originally envisaged.62 True, the Poor Law Commission in Somerset House had wide powers and duties to ensure the efficient working of the system, but in practice the law was administered locally by the Boards of Guardians of the country’s 648 Poor Law Unions;63 and different Boards of Guardians had very different views about how their powers and duties should be exercised.64 In particular, well before the end of the nineteenth (p.637) century, many Boards had come to accept that children should be kept out of the workhouse.65 This was most frequently done by allowing the parent the ‘outdoor relief which the 1834 Commissioners would have denied.66
The practice of supporting poor children by giving the parent outdoor relief remained controversial, but the underlying assumptions implicit in this criticism had changed by the beginning of the twentieth century. It began to be said that, far from providing a lavish standard of living, the amounts paid out as outdoor relief were usually not adequate to support a child to a reasonable standard as judged by contemporaries whilst the fact that the scales of benefit and the conditions subject to which relief was made available were fixed by the 650 or so Boards of Guardians led to anomalies.67 A Report made for the 1909 Royal Commission on the Poor Laws68 stated that most children at home and supported by outdoor relief were
‘Under-nourished, many of them … poorly dressed, and many barefooted. The houses are bare of furniture, for there is not money to buy sufficient food or boots, and any extra expense has to be met by selling or pawning furniture …’.
Again, it was said that many mothers, condemned to keep house on an ‘almost impossibly small sum’,69 broke down in ‘health and courage [and had become] ineffective colourless and whining’.70 The result was that a almost a third of them were ranked as ‘slovenly and slipshod mothers’ or even ‘really bad mothers’ guilty of wilful neglect, drunkenness or immorality.
(p.638) A better future for the child? Emigration?
But what was the alternative to keeping a child on a bare subsistence in this way? One apparently attractive possibility was that the child should be sent to make his way in one of the British territories overseas. Legislation71 had given guardians specific power to arrange for the emigration of paupers and emigration certainly had the merit of being the ‘most economical method of providing for the children of the state’.72 But the move towards arranging for pauper children to emigrate was not motivated entirely by financial considerations. At a time when large numbers of adults were opting to make a fresh start by taking advantage of the apparently boundless opportunities afforded in Australia, New Zealand and North America73 there seemed to be positive advantages in encouraging young pauper children to share these prospects. In 1896, theDepartmental Committee on Poor Law Schools74 concluded that emigration opened out for the children ‘a happy and successful career’. The Committee was impressed by the fact that emigration removed children from ‘pauper surroundings and from bad relatives, who so often interfere with their well-being’; and noted that life in Canada (the country which attracted the greatest number of Poor Law child immigrants) was
‘Healthy, the food abundant, the air … bracing, and the energy and industrious habits which characterise the people are specially beneficial in stimulating children descended from the pauper and thriftless classes. The openings for employment are more numerous and remunerative than those which can be obtained for Poor Law children in England, and the grant of land … enables lads with the necessary qualifications to become farmers and householders.’
Faced with this endorsement, it is not surprising that in 1910 the Liberal President of the Local Government Board said that he ‘wished it were possible’ to transplant some 15,000 or 20,000 such children to the Colonies ‘where there are homes waiting for them, not as drudges or as servants, but rather as companions’.75 But whether or not these favourable assessments were valid76 (p.639) emigration could only be used for a tiny proportion of the Poor Law children. A much more widely available solution was to board the children out with foster-parents.
Boarding out: the best (and cheapest) way of providing for children of the State?
In the latter part of the nineteenth century77 the practice of boarding children out with foster-parents had attracted strong support and official approval.78 The principle was that boarded-out children (who had to be orphans or children deserted by their parents) were ‘placed with cottagers’79 who were obliged to provide the child with proper food, lodging and washing and to endeavour to train the child in habits of truthfulness, obedience, personal cleanliness and industry, give the child suitable domestic and out-door work, and ensure that the child attended church and school regularly. The foster parents were required to give a formal undertaking to bring up the child as their own.80
The fact that the boarded out child would no longer be brought into contact with the criminals and other undesirables likely to be encountered in the workhouse was a clear advantage; but there was more to it than that. The emphasis was to be on the ‘home training’ which one witness81 to the 1896 Mundella (p.640) Committee claimed had ‘made an English Working Class as good as they are’. The Committee itself concluded82 that
the boarded out child ‘lives a natural life. Deprived by misfortune of its own parents, it finds substitutes in its foster mother and father, who are often not only kindly disposed, but affectionate and devoted to their young charges. Although dependent upon the rates, no stigma of pauperism attaches to the child, who takes his or her place among the ordinary children of the village, attends the ordinary elementary school, sits among others in the church or chapel, and shares with them the pleasures and experiences of childhood…. The child’s experience of the foster mother’s love, effort and anxiety on its behalf, and the time she is able to devote to its individual training, are influences of the highest importance in the formation of its character. The child brought up under the ordinary conditions of family and village life is in a position to see the results which follow conduct. He realises that drunkenness is succeeded by poverty, and that indigence is the offspring of thriftlessness …’.
The fact that boarding out was much the cheapest method of bringing up the children of the State (costing no more than £13 or something over £800 annually in year 2000 values) was an additional consideration in favour of the practice.83 But boarding out could never be a panacea: the restrictions on the age of children84 who could be dealt with in this way, and the fact that boarded-out children had to be placed with foster-parents of the same religious denomination had a restrictive effect. In spite of the emphasis placed by the authorities on the merits of boarding out, in 1907 only 8,659 out of the 69,03085 Poor Law children were boarded out.86
Security for foster parents and the child
There were problems with boarding out. For example, how were the guardians to ensure that the children were properly accommodated and that adequate arrangements were in place for their supervision?87 But perhaps the most serious (p.641) problem for those administering the system was that all too often88 the child’s parent would exercise the common law right to have possession of the child (whether boarded out or being cared for in some other way) as soon as he was old enough to work and earn wages. The Poor Law Acts of 1889 and 1899 were passed to deal with this problem.
The 188989 Act gave the guardians power to assume by resolution all the ‘powers and rights’ of a parent who had deserted90 the child. The 1899 Act (which was exclusively concerned with the assumption of parental rights) greatly extended the scope of this power. Under the 1899 Act a resolution could be founded not only on parental desertion, but on the ground91 that a parent:
(i) was unfit to have control of the child by reason of mental deficiency, vicious habits or mode of life;
(ii) was unable to perform the parental duties by reason of being under sentence of penal servitude;92
(iii) had been sentenced to imprisonment in respect of any offence against the child;
(iv) was permanently bedridden disabled, was an inmate of a workhouse, and consented to the passing of the resolution;
(v) of the child had died.
Once the guardians had passed the resolution, they could allow the child to be ‘adopted’ by foster-parents.93This was not legal adoption in the modern sense of that word: the child’s legal parentage remained unaffected, and indeed the guardians were obliged to arrange for the child to be visited at least twice a year for the next three years, and the guardians could if they thought fit revoke the ‘adoption’ and require the foster-parents to return the child. But so long as the resolution assuming parental rights remained in force the child’s parents had no right to remove him.
It appears that this procedure of so-called ‘poor law adoptions’ was originally intended to be used only for the children of persons sentenced to long terms of imprisonment ‘or demonstrably of vicious life or habits’; but ‘poor law (p.642) adoptions’ came to be extensively used by some Boards of Guardians in other cases.94 This system of Poor Law adoption was found ‘very valuable in practice’95 and it seems that many thousands of children (the majority deserted by their parents)96 were ‘adopted’ in this way. But very little is known about the social reality of such ‘adoptions’.
The ‘Children’s Charter’: the Children Act 1908
The South African War of 1899 to 1902 was in a number of ways a shock to a complacent society. In particular, the poor physical condition of many of the young men who offered themselves for military service was a source of concern. It is true that the Inter-Departmental Committee on Physical Deterioration97 rejected the more apocalyptic evidence presented to it and set out to ‘allay apprehensions’ about alleged deterioration of the national stock;98 but the feeling that the young needed better provision seems to have become widespread. The landslide victory of the Liberals in the 1906 General Election99 engendered expectations that something positive would be done; and Herbert Gladstone, the incoming Home Secretary100 was quick to offer a ‘children’s charter’.101 Home Office officials used much less emotive language: for them, the intention was simply to consolidate the existing law with minor amendments to remedy perceived defects.102 Subsequent comment has tended to reflect similar differences of outlook. Some think an avowedly reforming Government should have been more imaginative and far-sighted: the Government should have done much more to shift the emphasis of child-protection legislation from punishing (p.643) offenders towards establishing preventive mechanisms.103Others celebrate the fact that the Act did establish the principle that juvenile delinquency should be dealt with in courts distinct from those dealing with adult criminals; and the fact that a ‘host of amending laws and piecemeal legislation’104 would be gathered together into a single statute publicly emphasised ‘the social rights of children’ and demonstrated the importance which the law and law-makers attached to these matters.105 In this view it is no exaggeration to describe the Act as a ‘great and fundamental step in child protection’.106
The truth is that the Government’s hands were to some extent tied. There was a massive Government majority; but the fact that the Bill was intended to consolidate all the existing child cruelty and protection legislation meant that the Bill was also massive—the first version had 119 clauses and covered 72 pages; and it became a 134 section Act. There was, at the time, no special procedure to deal with Consolidation Bills;107 and hence every clause was open to debate and amendment. The exigencies of the parliamentary timetable meant (as Gladstone told the King)108 that the Opposition had it in their power to ‘wreck the Bill’. To avoid this, the Bill was drafted so as to avoid controversial topics so far as possible; and the Government was ready to compromise whenever a serious conflict of attitudes seemed likely to cause difficulty. For example, the Government compromised between those who were anxious to remove children from immoral surroundings and those who thought the parental right should not be interfered with at all:109 the court’s power to intervene if a child ‘frequented the company of any … common or reputed prostitute’ was not to apply where the prostitute in question was the child’s mother and she could show that she was exercising ‘proper guardianship and due care to protect the child from contamination’.110
The emphasis of the 31 sections of the Act111 intended to strengthen the law relating to cruelty was very clearly on the imposition of criminal sanctions as the (p.644) means of protecting children’s welfare. For example, the Act112 attempted to deal with the problem of the children—as many as 1,600 each year—burned to death because they had been left unsupervised in reach of fire, by creating an offence of leaving a child under seven ‘in any room containing an open fire grate not sufficiently protected to guard against the child being burned or scalded’. The Act also made it a criminal offence to allow under 16s to beg113 or to allow anyone aged between four and 16 to ‘reside in or frequent a brothel’.114 But, again, some proposals of this kind proved controversial. For example some MPs were sceptical about the need for a specific criminal offence to penalise the adult guilty of ‘overlying’. True, a large number of child deaths were recorded as being caused in this way; but some MPs claimed that ‘overlying’ was no more than a ‘generic term used by medical officers to cover many cases where children were found dead in bed and a diagnosis proved somewhat difficult’, and the innuendo that death in many of those cases was really caused by the parent going to bed drunk seemed to be based on no firmer evidence than the fact that a high proportion of these deaths occurred on Saturday night or Sunday morning.115After long debate, the Government’s original clause was greatly restricted in scope: to get a conviction the prosecution would have to prove that the death of a child under three was caused by suffocation whilst the child was in bed with a person over 16 who ‘was at the time of going to bed under the influence of drink’.116
The Act also contained a number of other measures seen primarily as protecting children from damaging habits (notably smoking and drinking) but inevitably enforced by criminal sanctions. But any provision about Public Houses could be guaranteed to provoke fierce debate between temperance and brewing interests;117 whilst the provisions118 prohibiting the sale of tobacco to the under-16s (not to say imposing a duty on the police and on park-keepers ‘being in uniform’ to seize cigarettes from youths caught smoking in a public place)119 attracted scornful comment from the Conservative opposition about the folly of ‘grandmotherly legislation’ likely to ‘lead to a good many laughable (p.645) scenes of constables pursuing small boys who would drop their cigarettes in running away’.120
Industrial and reformatory schools121
The provisions consolidating and amending the 19 statutes relating to industrial and reformatory schools constitute, in terms of sheer bulk,122 the major part of the 1908 Act; but these did not provoke any great controversy. As explained above, the distinction between the two types of institution had been that the reformatory was exclusively concerned with the delinquent, and (although the specifically punitive function of the reformatory had been perhaps reduced by legislation123 removing the requirement that a youth spend the first weeks of the sentence in prison) the distinction was largely preserved by the 1908 Act. But it was far from rigid: in some cases magistrates could order a child offender124 to be committed to an industrial school instead of a reformatory, and there were provisions for the transfer of reformatory children to industrial schools. Whatever euphemism was used there was likely to be a ‘prison taint’ about any school which admitted convicted children;125 and in any event, the child sent to an industrial school under provisions126 designed for his protection would, whatever the school’s regime, not be under any illusions. He could be given 12 strokes of the birch for indiscipline; and if he was guilty of ‘serious and wilful’ breach of the rules127 or escaped he was liable to be convicted of a criminal offence and sent to a reformatory;128 whilst the overtones of delinquency were often reinforced by the retention of provisions129 allowing magistrates to (p.646) commit children who had caused trouble to the workhouse authorities130 to an industrial school.131 Although the industrial school had been conceived as a preventive132 and protective agency; the 1908 Act did nothing to meet the arguments of those who claimed that school staff were in danger of assuming the same attitude to the children in their charge as gaolers adopted to convicted prisoners.133 As a senior civil servant134 had put it nearly half a century previously, once the decision had been taken to commit a child to an industrial school there could be ‘no substantial difference’ between the treatment and discipline required by the child who had broken the law by ‘positive crime’ and those who were guilty of nothing worse than vagrancy (or, he might have added, of being the victim of his father or mother’s cruelty). The question whether the social control of harmful and perhaps damaging behaviour by the young and the social measures necessary to help and protect the deprived are essentially separate and distinct processes or are better seen as complementary135 was controversial for much of the twentieth century; but the impact of accepting the view that there should be no distinction between the ‘treatment and discipline’ of the young thief on the one hand and the child abused by his parents on the other obviously bore hardly on the needy child, especially at a time when few people had any doubt that harsh measures were necessary to deter the offender.
The creation of the juvenile court
The view of the 1908 Act as a ‘children’s charter’ can best be justified by the fact that it included provisions to some extent136 humanising the application of the criminal law to young people and making the courts agencies for the ‘rescue as well as the punishment’ of young offenders. For example, the Act required a person under 16 charged with an offence to be given bail;137 it prohibited the imprisonment of children under 14 and provided that a young person aged between 14 and 16 was only to be imprisoned if the court certified that he was (p.647)of ‘so unruly a character’ that he could not be detained elsewhere138 (or that he was of ‘so depraved a character’ that he was not a fit person to be so detained) and the Act allowed a delinquent under 16 to be placed under the supervision of a probation officer139 (rather than being whipped or sent to a reformatory).
The Act also contained provisions intended to make it clear that the family was responsible for its young:140parents were to be required to attend the court hearing141 and parents had to pay the fine imposed on their child unless the court was satisfied that the parent had not ‘conduced to the commission of the offence by neglecting to exercise due care’ of the offender142 whilst a parent (broadly defined to extend to a step-parent, the mother’s cohabitant, and the putative father of an illegitimate child)143 could be ordered to pay the cost of maintaining the child in an industrial school or reformatory.144
All these provisions were important, but it was the apparent success of the campaign145 to establish special juvenile courts to deal with delinquents which has attracted most comment both at the time and subsequently, and allows the Act to be seen as an important step in promoting the welfare of children who had offended. In reality, the innovation was exceedingly modest in scope. All that the Act did146 was to provide that magistrates’ courts should deal with under 16s in a different room from that used for other cases (or at least hear child delinquency cases at a different time from adult cases).147 The Act did not even give effect to the recommendation of the Inter-Departmental Committee (p.648) on Physical Deterioration148 that magistrates dealing with children should be specially selected for the purpose (although there was some talk of achieving this by administrative action, at least in the London area).
Removing the child from unsatisfactory parents
The industrial schools legislation149 had given magistrates powers to deal with refractory Poor Law children, children beyond their parents’ control and so on, but the 1908 Act very considerably extended the circumstances in which the juvenile court150 could take action in respect of neglected, ill-treated and abused children. The Act provided that ‘any person’151 could bring before the court a child:
(a) found begging;
(b) found wandering and not having any home or settled place of abode, or visible means of support, or lacking adequate parental guardianship;
(c) found destitute, with the parents in prison;
(d) under the care of a parent or guardian unfit to have care of the child by reason of ‘criminal or drunken habits’;
(e) who was the daughter of a man convicted of sexual offences;
(f) frequenting the company of any ‘reputed thief, or of any common or reputed prostitute’;152
(g) living in a place used for prostitution or otherwise in circumstances calculated to ‘cause, encourage, or favour the seduction or prostitution of the child’.
The court was to inquire into the matter, and if satisfied that one of the relevant conditions was satisfied and that to do so would be expedient,153 could commit the child to an industrial school.154 Alternatively it could commit the child to the care of a ‘fit person’.155 These provisions (of course, modified in a number of respects, some important) remained the basis for compulsory State intervention in a child’s upbringing until the coming into force of the Children Act 1989; and the 1908 Act deserves to be remembered as marking the decisive (p.649)rejection of the view156 that the ‘enormous and indisputable’ evil of child abuse was of ‘so private internal and domestic a character as to be beyond the reach of legislation’. Parliament had given the police and others concerned with children’s welfare potentially wide powers to intervene to protect children. But these provisions were inserted into legislation primarily focussed on the young delinquent (so that, for example, the child of a parent unfit to care for him is ordered to be ‘detained’ in an industrial school ‘for such time as the court thinks appropriate for the teaching and training of the child’).157 This must have made it difficult for the young people concerned and their families not to feel that the victim of misfortune was in fact being treated in the same way as a young criminal. For all the good intentions the juvenile court remained primarily a place in which the young were accused of wrongdoing and punished for having broken the criminal law. The fact the same courts had, until the coming into force of the Children Act 1989, to discharge a welfare function for other children may have given rise to considerable tensions. Nevertheless, Acts of Parliament can often have a more substantial effect than could be predicted from a mere analysis of the statutory provisions, and the fact that the Home Office minister158 could claim that the Children Act 1908 was ‘saturated with the rising spirit of humanism’ indicated the mood in which it was enacted and the expectations held for the future.
Other provisions intended to protect children
(i) Powers of search and removal
The 1908 Act gave the juvenile court powers to make orders for the future of neglected and abused children; but there was often need for immediate action. The 1908 Act codified and amended the child cruelty legislation in an attempt to protect, by direct State intervention, the child victim. Search warrants could authorise searches for children;159 there were powers of arrest160 and police officers were empowered to remove to a ‘place of safety’ children whose parents were suspected of having committed an offence.161 If anyone with ‘the custody charge or care’ of someone under 16 was convicted162 of abuse the court could order that the child be committed to the care of a relative ‘or some other fit (p.650) person’163 who would then have the ‘like control over the young person as if he were the child’s parent’.164
(ii) More effective protection against baby farming
The Infant Life Preservation Acts of 1872 and 1897 had been intended to protect the child handed over to paid foster-parents or ‘adopters’165 but the regime of local authority166 registration and inspection left ‘many holes through which evil-disposed persons may escape its control’.167 There had been continuing pressure to make the legislation more effective. But there was also opposition.168 Why should the law intrude into the homes of respectable working class widows caring devotedly for a foster child? And ‘if kindly nurse mothers became the objects of registration and inspection’169 what would happen to the small-scale fostering on which many children’s charities depended as way of carrying out the duty of care they had assumed?
After a great deal of discussion the 1908 Act was drafted to extend the scope of the legislation in three ways. First, the registration requirement was extended so as to apply to anyone who for reward undertook the nursing and maintenance of even a single child.170 But the local authority could exempt any particular premises from inspection by an infant protection visitor if the premises were ‘so conducted that it is unnecessary that they should be visited’;171 and the concerns of the major children’s charities were allayed by allowing local authorities to delegate inspection172 to the organisation responsible for the placement.173 (p.651) Secondly, the legislation was extended to cover the care of children up to the age of seven. Thirdly, the Act did away with earlier provisions which had exempted from the reporting requirement of earlier legislation cases where the consideration for undertaking the care of a child up to two years old had been a lump sum of £20 (£1,000 or so in year 2000 values)174 or more.
The effect of the extensions of the law made by the Infant Life Protection provisions of the 1908 Act175 is difficult to evaluate: the Child Adoption Committee in 1925 was sufficiently alarmed by the potential for abuse left open by the legislation that it sought and obtained an extension of its terms of reference in order to make recommendation for further statutory control.176
(iii) Central Government’s inspection powers increased
The Infant Life Preservation legislation had recognised the need for supervision of child care in the case of the very young being cared for by paid foster-parents; industrial and reformatory schools had been subject to inspection by officials appointed by the Home Secretary;177 and Poor Law Institutions were subject to Inspection by the Local Government Board. But the inspections may well have been often spasmodic and ineffective;178 and the 1908 Act extended the powers of the Central Government by a provision apparently giving officials appointed by the Home Secretary the right to visit and inspect any voluntarily funded institution not otherwise subject to Government supervised inspection.179 This and other provisions of the ‘children’s charter’ encouraged the Home Office to set up a distinct Children’s Branch to supervise and control the various functions of the Home Office in relation to children;180 and this Department had an (p.652) important and humanising influence on policy towards children until its functions were transferred to the Department of Health in 1971.
Consolidation and progress: from the Children Act 1908 to the Children and Young Persons Act 1933
The Children Act 1908 had clearly identified child cruelty and neglect as problems with which the legal system should seek to deal and, by providing a rudimentary legal framework for juvenile courts, stimulated thought about how best the legal system should deal with children in need. The Poor Law continued to provide a measure of support for children affected by their parents’ poverty, but there appears to have been increasing dissatisfaction about its effectiveness and reform became a major concern of progressive opinion. The 1914–1918 War is associated with significant changes in social attitudes,185 and in the aftermath of war pressure for change increased. (For example, the NSPCC drafted a Bill in 1919 seeking to provide better protection for foster children.) However, major legislation dealing specifically with children had to wait until 1932, when the 90-section-long Children and Young Persons Act (consolidated in the following year) provided a legislative framework which survived for more than half a century. Other legislation (notably the Local Government Act of 1929 and the Poor Law Act of 1930) vitally affected the role of the State and the law in relation to children; and as we have already seen186 the Adoption of Children Act 1926 introduced into English law for the first time a procedure intended to satisfy the desire for formal legal recognition of the role of men and women who had assumed the responsibilities of parenthood. The period (p.653) between 1908 and 1932 also saw many important changes in public and judicial administration which had a sometimes considerable impact on the legal system’s treatment of children and their families.
Lawyers inevitably tend to give most attention to the courts and their role; but in terms of the numbers of children whose upbringing was directly affected by the law it was at this period the Poor Law which had the greatest impact. The statistics are revealing: in the seven years from 1920 to 1926 the courts made on average 332 orders each year committing neglected or abused children to residential schools187 under the legislation dealing with neglect and cruelty, but over the same period no fewer than 69,000 children removed from their families were in the care of the Poor Law authorities.188
The Poor Law, children and the family 1906–1929
In 1905, the Government set up a Royal Commission to enquire into the operation of the Poor Law and to make recommendations. The Commission was not unanimous and produced both Minority and Majority Reports. Neither found much to say in favour of the way in which the Poor Law impacted on the life of the children who came under its provisions; and even the conservative Majority Report189 recommended the abolition of Boards of Guardians and accepted that children should not be kept in the workhouse. But the eloquent and well documented 716 pages of the Minority Report (to which Mrs Beatrice Webb190 evidently made an important contribution) went much further.
The Minority Report highlighted shocking defects in the way in which children were treated, for example their being kept in the ‘demoralising atmosphere of the General Mixed Workhouse’; and it claimed that poor supervision coupled with the inadequate scale of outdoor relief allowed for pauper children meant that the health and character of probably one hundred thousand child ‘wards of the State’ were seriously compromised. The Minority claimed that whilst lip service was given to progressive measures such as boarding out and better education, in reality little progress was made because the guardians could not provide adequate supervision. For the same reason, the powers of guardians to (p.654) prosecute cruel or neglectful parents were ‘hardly ever’ put into force. As a result many thousands of children were, for lack of the necessities of life, growing up stunted, debilitated and diseased.
The Minority believed the underlying problem was institutional: the Poor Law authorities’ function was merely to ‘relieve’ those who voluntarily came forward and proved themselves. There was a simple, if radical, remedy. Social problems could only be cured by a proactive approach. There should be one authority in each district responsible for the whole of the provision made by the State for children of school age; and that authority should be the Local Education Authority under the supervision of the Central Government’s Board of Education. No longer should ‘the poor’ be treated differently from others. The Poor Law should be broken up, and the functions of the Poor Law authorities transferred to specialist agencies of the local authorities.
In many ways the Minority Report presaged the development of the concept of the Welfare State. The Minority was insistent that bureaucracy should be efficient: there were simply too many bodies involved in providing for needy children. But the Minority191 (in passages which became very influential) wanted the State to establish social machinery which would ‘bring automatically to light… whatever child destitution exists’ and take the action necessary to remedy the problem. And this required ‘the steady and continuous guidance of a friend, able to suggest in what directions effective help can be obtained where help is really needed’. Again, this pointed to the Education Authorities as the responsible agent of public help.
The Royal Commission’s report engendered heated controversy. Mrs Beatrice Webb192 was a formidable publicist; a National Committee for the Break-up of the Poor Law was formed; and the Labour Party pressed strongly for implementation of the Minority Report. But there was also opposition to reform. In particular, many Board members (justifiably priding themselves on their commitment to providing the individual case work which the Minority Report had favoured)193 did not take the prospect of extinction without protest.194 And, inevitably, there were many controversial matters of financial policy and ideology to be resolved. The Liberal Government was not prepared to act precipitately; and, although Fabian Socialists drafted a 50-page Prevention of Destitution Bill (prompting an important and notably well informed Parliamentary Debate in 1910)195 there seemed no prospect of legislation (and in fact there was no comprehensive legislation until 1929).196
(p.655) The absence of primary legislation did not mean there was no progress. The Local Government Board had wide powers to legislate by order197 and began to exercise them to bring about change, sometimes important. For example in 1910 the Board declared that ‘in the case of children … pauperism is always due to misfortune’198 and expressly renounced the application to children of the philosophy of ‘less eligibility’ on which the 1834 Act had been based. Keeping children in the workhouse could no longer be recognised as a legitimate way of dealing with the young; and children over the age of three199 were no longer to be accommodated in that way. The Guardians were to take effective steps (notably by arranging systematic inspection by women inspectors) to safeguard the welfare of boarded out children; and Boards of Guardians were to be encouraged to assume parental authority200 over the children of unfit parents.
Even so, the delay in bringing in primary legislation to deal with the defects in the Poor Law seems at first difficult to understand. The explanation is that what might have been seen as comparatively simple issues became part of a much more complex debate about the machinery appropriate for administering the public health, unemployment insurance, widows’ and old age pensions,201 schooling and other forms of welfare provision initiated202 by the 1906 Liberal Government; and the social upheaval associated with the 1914–1918 war inevitably directed attention to the further development of social service provision.
Central Government control (and the formation of administrative and legislative policy) over these services was poorly co-ordinated. Particular difficulty was caused by the fact that the Local Government Board had many responsibilities in these areas, as well as responsibility for the central administration of the Poor Law; and there seems some force in the view203 that its ‘dominant tradition [was] that of the old Poor Law Board—a tradition of cramping the local authorities and preventing things from being done.’ Certainly the Local Government Board set its face against any radical reform of the Poor Law.204 But in spite of this opposition, it became clear that something had to be done’. Administrative confusion grew as popular feeling against the Poor Law led Parliament to (p.656) entrust administration of new services to other local agencies.205 In 1918 a powerful committee,206 appointed to consider the better co-ordination of public assistance, emphasised the pressing need for reform. But what happened was simply that the Ministry of Health Act 1919 created a Ministry to take over the powers and duties relating to the Poor Law and otherwise of the Local Government Board and other health related functions (including housing).207 The Act did give an indication that the Ministry of Health might be stripped of poor relief and other functions not relating to the health of the people, but it was left to Neville Chamberlain’s Local Government Act of 1929 to abolish Boards of Guardians and to transfer the administration of the Poor Law to local authorities.208
The Chamberlain legislation was intended to make local authorities coordinate their various welfare facilities; and councils were encouraged209 to provide assistance under legislation other than the Poor Law (for examplethe Education Act 1921210 or the Maternity and Child Welfare Act 1918)211 wherever (p.657) this was possible. But there was force in the criticism212 that the 1929 Chamberlain Act still retained the underlying principles of the Poor Law, not least in the provision213 that local authorities had a duty ‘to set to work’ those who lacked the means to maintain themselves, and to ‘put out as apprentices all children whose parents are not… able to keep and maintain’ them.
It may be that some local authorities were able to rationalise and humanise the management of the Poor Law; but this was not how it appeared to the large numbers of unemployed whose families were driven to depend on the system in the 1930s. The Poor Law had to go; and it was the recognition of this fact which led (albeit indirectly) to the enactment of the Children Act 1948 and another attempt to bring about fundamental change in Society’s provision for children in need.214
The juvenile court 1908–1933
The Poor Law may have been statistically the more significant of the State’s mechanisms for dealing with problem children, but enthusiasts and propagandists215 were attracted by the message that the creation of juvenile courts had been a truly ‘revolutionary’step.216 They had to admit that all the Act actually provided was that cases involving children should be dealt with separately from others; but it was claimed that much greater progress could be based on this secure foundation. What was presented as a bold experiment became (it seems) almost compulsory viewing for those—both from this country and overseas—interested in social problems, to the extent that (in defiance of the policy clearly underlying the legislation that children cases needed privacy)217 the more accessible juvenile courts were thronged by crowds of ‘observers’.218
(p.658) A specialist magistracy?
The Sex Disqualification (Removal) Act 1919 made it possible for women to be appointed as Justices of the Peace; and the newly appointed women JPs could thus bring their ‘sympathy, experience and maternal instincts’ to bear on cases (for which it was thought women were ‘specially suited’)219 involving the young. But in London the summary courts were manned by stipendiary Metropolitan Police Magistrates, and if JPs—male or female—were to sit special legislation would be needed. The Government could have done nothing, leaving it to the Metropolitan magistrates to run the courts as they had since 1908, or they could have introduced a Bill simply providing that JPs could sit in London juvenile courts. But it was decided to go further: the proposal was that juvenile courts in the Metropolis should consist of three magistrates of whom two (one a woman) were to be JPs drawn from a special panel nominated by the Home Secretary. Moreover, in making nominations to the panel from which the Presiding magistrates would be drawn, the Secretary of State was required to ‘have regard to [the magistrate’s] previous experience and special qualifications for dealing with cases of juvenile offenders’.220
These proposals were disliked by the majority of the stipendiary Metropolitan Police Magistrates221 (who apparently thought that the role of women in the juvenile court should be confined to acting as assessors); and there was a lot of publicity and debate. The Government was obliged to make a number of concessions, but the principle that juvenile justice was a matter for specialists survived and was embodied in the Act. Not surprisingly, people asked why this principle of a specialist bench should be confined to London; and it appears that special rotas for selecting magistrates to sit in juvenile cases were ‘not infrequently’ found, without statutory authority, outside London.222 The publicity resulting from the Metropolitan magistrates’ opposition to any change thus led to an outcome as unwelcome to men of a conservative outlook as it was welcome to the more radical reformers.
(p.659) The (Molony) Committee on the Treatment of Young Offenders
In 1925 the Home Secretary—against the background of widespread discussion of, and interest in, the role of the courts in relation to juveniles and the fact that juvenile crime seemed to be on the decrease, so that ‘progressive’ ideas were more acceptable than at some other periods in history—appointed a Committee223 to inquire into the ‘treatment of young offenders and young people who, owing to bad associations or surroundings, require protection and training’. These terms of reference are significant as indicating the extent to which delinquency and neglect were by that time associated in the official mind: the delinquent child needed treatment, whilst the neglected child might become delinquent if appropriate protective measures were not taken. As the Molony Committee’s Report put it:224
‘Our enquiry … is not concerned only with the young offender. There is also the problem of the neglected boy or girl who has not committed offences but who, owing to want of parental control, bad associations or other reasons, needs protection and training. The two problems are closely connected …, because neglect and delinquency often go hand in hand and experience shows that the young offender is only too often recruited from the ranks of those whose home life has been unsatisfactory. The legislature draws a distinction between the two classes, but in many cases the tendency to commit offences is only an outcome of the conditions of neglect, and there is little room for discrimination either in the character of the young person concerned or in the appropriate method of treatment. There are also young people who are the victims of cruelty or other offences committed by adults and whose natural guardianship having proved insufficient or unworthy of trust must be replaced.’
The Committee was enthusiastic225 about the role of the juvenile court:
The court ‘performs very important functions which are not generally realised by the public and not always appreciated at their full value by the Magistrates themselves. Before it appear boys and girls … who are often wayward or mischievous and in some cases serious offenders; who are sometimes dull of mind or undeveloped, but more often full of vitality and intelligence, though misdirected; who are all by virtue of their youth-fulness hopeful subjects for care and training. The decision of the Magistrates with regard to the immediate future of these boys and girls must to a large extent influence their whole lives…. The importance of [the court ‘s] functions lies not only in safeguarding the right of the less fortunate child to such protection and training as it has failed to receive or in assisting those parents who, from poverty or other circumstances, have not succeeded in keeping their children from bad influences or associations; there is also the duty of restraining those who commit offences from recruiting the ranks of hardened criminals at a later stage and becoming a serious menace and public burden …’.