The Custody of Infants Act 1839


In 1838 Caroline Norton began a campaign to get the law changed on the custody of children. Thomas Talfourd MP agreed to her request to introduce a Bill to allow non-adulterous mothers, to have custody of children under seven, with rights of access to older children. The Bill was passed in the House of Commons but was rejected by the House of Lords by just two votes.

Mrs Norton wrote another pamphlet, A Plain Letter to the Lord Chancellor on the Law of Custody of Infants. A copy was sent to every MP and in 1839 Thomas Talfourd tried again. This time the Bill was passed in both houses and gave mothers the right of custody of their children under seven, but only if the Lord Chancellor agreed to it, and only if she was of good character.

During the House of Commons debate on 14 December 1837, Mr Leader made an impassioned speech defending women. He said the law was 'peculiarly harsh and cruel', that 'No man who has given this subject the smallest consideration can deny that the law requires some alteration', and that 'common sense, and justice, and humanity' dictated that 'fair protection should be afforded by the stronger sex, who make the laws, to the weaker sex, for whom the law is made, who have no voice whatever in making the law, whose interests are entirely in the hands and at the mercy of the law-makers, and who, having nothing to do with the law but to obey it, ask merely for protection against the cruelty and injustice which may be (and I grieve to say is too often) perpetrated by a brutal tyrant, fortified by the letter of the law.'

He continued: 'As it stands at present, the law is entirely in favour of the husband and oppressive to the wife. A man who may be drunken, immoral, vicious, and utterly brutalized, may place his wife, who seeks to live separately from him, in this cruel dilemma -- "You shall either continue to live with me, or you shall be deprived of your children." The wife, in such a case, has no redress. It may be notorious that she has just grounds for complaint, that it would be misery for her to live with her husband; it may be well known that she possesses her children's sympathy and affection, and that the husband disregards his children, and is disregarded, if not disliked by them. It may be admitted that the wife is the fitter person to have the care of the early education of her children, to form their habits, to minister to their childish wants to soothe them in trouble, and to tend them in sickness. All this may be admitted; but the law sternly refuses to listen to the pleadings of natural sympathies and affections, gives to the husband the charge and possession of the children, and denies even the sight of them to the beloved and loving mother. How many mothers, rather than submit to such a 1091 deprivation, are driven to choose the other alternative, and endure a life of harassing ill-treatment and vexation and misery? This is no imaginary case: I know many such cases, which, at this moment, present themselves to my memory. There can scarcely be a Member in this House to whom some such case is not known; there are hundreds of women now suffering in silence, pining for the children whom a stern law has torn from them, now looking anxiously to the decision of this House -- now eagerly hoping that the representatives of the people will save them from the terrible alternative which forces them to choose between being the abject slaves of a brutal husband or of being deprived of the very sight of their own children.'

In the House of Lords, 30 July 1838, Lord Lyndhurston, moving the Bill, criticised the law as it now stood: 'The father of a chilld born in lawful wedlock was entitled to the entire and absolute control and custody of that child, and to exclude from any share in that control and custody the mother of that child. The mother might be the most virtuous woman that ever lived, amiable in her manners, fond and attached to her children; the father, on the other hand, might be profligate in character, brutal in manner, living in adultery, and yet would have the right under the existing law to the custody of the children of his marriage, to the exclusion of even access to them of his wife, their mother. Further than this, if the father availed himself of the law as it now stood, he might apply it to personal pecuniary objects, to the extortion of unjust concessions from the mother, and still have the right to bar her from all access to her children.

As an illustration of how children could be used as a weapon to blackmail wives, he quoted the case of Mrs Emanuel: 'That lady had married a French emigrant. She was before her marriage in possession of about £700 a year, which on the marriage was settled to her own use, with certain contingencies. The husband received £2,000, but not being satisfied with this settlement of the property, he persecuted his wife to make her will in his favour. She had the firmness to refuse. He then threatened to take her out of the kingdom, but this was barred by a covenant of the settlement. He next threatened to take her child, an infant scarcely five or six months old, out of the kingdom, and he succeeded in tearing the child away from its mother, and placing it in the custody and care of a hireling nurse. Application was made to the court on behalf of the wife for access to the child, and though the Court admitted that nothing could be more infamous or base than the motives by which the father had been actuated, still, as the mother had no right to interfere, as the father had hired a nurse as a substitute for the mother, and as the child was not suffering in health, the court could not interfere and afford the redress sought'.

He cited the case of Mrs Skinner: 'The husband and wife were separated in consequence of the barbarous usage of the husband, who was then living in adultery with a woman of the name of Delaval. The child, only six years of age, had previously been left, and properly left, with the mother; the husband, however, got possession of the child, and on the question being agitated in court (the child having in the mean time been delivered to the mistress of its father, who was then confined in Horsemonger-lane Gaol, where the child was carried to him day by day) the court said, that it had no power to interfere, and thus the child was wholly separated from its mother. That mother was of irreproachable character.' He asked 'if the law in that case was not harsh, cruel, unjust, and severe.' He cited some similar cases, one in which even a learned judge had said, 'I know of no act more harsh or cruel than depriving a mother of proper intercourse with her child' yet the law did not allow him to allow her to see her child.

When Mrs Greenhill, a mother of three daughters aged two to six, found out her husband was living in adultery with another woman she applied to the Ecclesiastical Court for a divorce. At the courts of King's Bench it was decided that she wife must not only deliver up the children, but that the husband had a right to debar the wife of all access to them. The Vice-Chancellor said that 'however bad and immoral Mr Greenhill's conduct might be ... the Court of Chancery had no authority to interfere with the common law right of the father, and no power to order that Mrs. Greenhill should even see her children'.

Lord Lyndhurston stated these cases for the purpose of 'proving the evils of the existing law.' Did they not prove that a father, however immoral, profligate, and dissolute, had not only the exclusive right to the custody and possession of his children, but also the right to debar his wife, a woman of virtue and of irreproachable character, from even access to her children? If, then, he had made out a case of cruelty and oppression under the existing law.'

When the Bill failed to be passed by the Lords (by just two votes) he signed, with Lord Vassall Holland, this protest: 'Because nature and reason point out the mother as the proper guardian of her infant child, and to enable a profligate, tyrannical, or irritated husband to deny her, at his sole and uncontrolled caprice, all access to her children, seems to me contrary to justice, revolting to humanity, and destructive of those maternal and filial affections which are among the best and surest cements of society.'

Nine months later the Bill was brought in again by Mr Serjeant Talfourd. Sir Edward Sugden was unhappy with the Bill. He felt that if a wife knew that she could make a claim to the courts for access to her children, that would make her more likely to sue for a divorce. Currently, women who were unhappy in their marriages put up with it because they knew that pursuing a divorce risked never seeing their children again. Mr V. Smith 'implored the house not to ... compel a woman to reside with a husband who treated her with neglect or cruelty'. He felt that Sir Edward Sugden was placing a wife 'in the position of a slave'.

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