(p. 525 ) Part IV Children, The Family And The State
One of the persistent images of Victorian family life is that of dutiful children willingly obeying their parents. As the Senior Judge of the Chancery Division put it in 1967,1 the law and public opinion accorded respect to the husband as head of the family and it was ‘thought to be the duty of wives to submit to their husbands and of children to obey their fathers—and, by and large, wives and children did what was expected of them’.
It is certainly true that the Law Reports contain striking illustrations of the principle that the law would uphold the rights of the paterfamilias, the father of the family. He was to be the master in his own house, and ‘king and ruler in his own family’; and (save only in case of gross moral turpitude or abdication of his authority) not even the court had a right to interfere with the ‘sacred right of a father over his own children’.2 Thus:
Before their marriage Mr and Mrs Agar-Ellis had agreed that their children would be brought up as Roman Catholics. They separated; and Mrs Agar-Ellis continued to take the children to Roman Catholic services. The children went to confession and were confirmed by a Roman Catholic bishop. When the oldest child was aged 12 she and her sisters refused to go with their father to Anglican services. The father was displeased by the fact that his children were being ‘indoctrinated’ in Roman Catholic beliefs and practices and obtained an injunction to prevent the mother from defying his wishes.3 He then took the children away from their mother and arranged for them to be looked after by clergymen and others. But when his daughter Harriet was 16 she asked to be allowed to spend her holidays with her mother instead of being moved around from one lodging to another. Mr Agar-Ellis refused; and an application was (p. 526 ) made to the court. This was unsuccessful. The courts consistently refused to see or hear Harriet or the other children; and held that since the father had not been guilty of any wrong-doing4 the court would not interfere with his legal right to control the education and upbringing of his children.5
Nor was this principle confined to the upper classes. A father had the right to inflict moderate and reasonable corporal punishment6 on his children, and:
In 1908 the Home Secretary refused to take any action in a case where a magistrate told the father that the law did not allow him to order his 15-year-old son, convicted of indecent exposure, to be flogged and that there was only one alternative to the boy being sent to prison. This was for the father to exercise his parental right and within the court precincts administer 12 strokes of the birch to the boy who would—provided the gaoler reported that he had had a ‘proper flogging’—then be set free. The father did as he was told.7
Almost by definition, issues or disputes about family life which come before the courts are untypical; but even so the law does seek to answer a number of important questions. Who is a child’s parent, for example? What is the significance of the parents’ legal status (whether they are married or not) on their relationship with the child and others? What in any event are the legal consequences of being a child’s parent? What is to happen if a child’s parents die, or for some other reason are not capable of providing the necessary care? Does the fact that (p. 527 ) the parents’ own relationship breaks down affect matters? What is the role of the State in influencing how children are brought up and in taking action when things go wrong? And, overhanging all these matters, there is the question of the role of the courts: when and how should the courts be prepared to intervene in family life?
The twentieth century was a period of great change in social attitudes and political philosophy. Both case law and statute reflected those changes to a greater or lesser extent. There was what has aptly been described8 as a ‘cascade of legislation’ dealing with the welfare and protection of children; and the commitment of the 1945 Labour Government to the creation of a welfare state also increased the flow of statute and other regulatory material. Scientific and medical developments (notably in the field of genetics and what has become known as ‘Human Assisted Reproduction’) necessitated responses from the courts and Parliament. The result is that the law relating to children and the family has become enormous in volume and exceedingly complex in nature. For these reasons, the account of the historical development of the law which is practicable in the context of a comprehensive study of the law and the family must necessarily be selective and in some respects abbreviated.
Chapter 14 deals with the question of parentage: who in law is the child’s parent? Chapter 15 deals with the question of how far the parents’ legal status affects the child: when is a child legitimate and when illegitimate, and what consequences flow from this distinction? Chapter 16 deals with the question of identifying the person entitled to take decisions and exercise parental authority over children, and the circumstances in which the extent of this authority may be questioned in divorce and wardship proceedings—and supplanted by the child acquiring legal authority to act for himself. Chapter 17 deals with the institution of legal adoption, as introduced into English law in 1926. The remaining three chapters of this part deal with the circumstances in which the State has the power or duty to intervene in a child’s upbringing and the effect of such intervention. (p. 528 )
(1) Sir Geoffrey Cross, ‘Wards of Court’ (1967) 83 LQR 200, 201.
(2) Re Plomley (1882) 47 LT (NS) 284; Re Agar-Ellis (1878) 10 Ch D 49, CA.
(3) Re Agar-Ellis (1878) 10 Ch D 49, the first round of the litigation about the children’s religious education. Malins V-C held that a ‘father is the head of his house, [that] he must have the control of his family, he must say how and by whom they are to be educated, and where they are to be educated … ‘ and indeed that ‘principles of common sense and the principles of propriety …’ dictated that no Court should interfere with the father’s right: see per Malins V-C, at p. 57. The Court of Appeal refused to interfere.
(4) For example, bringing up the children as ‘infidels or atheists’: Shelley v. Westbrooke (1817) Jac 266; or where the father has been guilty of gross immorality, as in Wellesley v. Wellesley (1828) 2 Bli(NS) 124 (where the main complaints about the father’s conduct were that he was living in adultery and that he encouraged the children in the habit of profane swearing; and his unfitness to have the sole control of his children was evidenced by his having told their tutor that ‘a man and his children ought to be allowed to go to the devil their own way if he pleases’).
(5) Re Agar-Ellis (No. 2) (1883) 24 Ch D 317.
(6) These qualifications were important. In R v. Hopley (1860) 2 F&F 202 an Eastbourne schoolmaster, entrusted with the care of a ‘dull’ boy aged 13 or 14, obtained the father’s written agreement to his subduing the boy’s obstinacy by chastising him severely, if necessary ‘again and again’ even if the boy held out for hours. As a result of the beating, the boy died. Cockburn, C J directed the jury that ‘by the law of England, a parent or a schoolmaster (who for this purpose represents the parent and has the parental authority delegated to him), may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate and excessive in its nature or degree, or if it be protracted beyond the child’s powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to the law, and if death ensues it will be manslaughter’. The schoolmaster was convicted of manslaughter andsentenced to four years’ penal servitude.
(7) Hansard’s Parliamentary Debates (4th Series) 12 October 1908, vol. 194, col. 34. Perhaps this practice was not uncommon: in 1931 the Home Office—seeking (unsuccessfully) to remove the remaining powers of magistrates to sentence juveniles to be whipped—noted that if a juvenile court’ thinks a child would be better for some corporal punishment it can, in most cases, secure that such chastisement is given by the parent’: H045/14715, Memorandum on Draft 1931 Children and Young Persons Bill. It also appears that in a number of cases children were whipped on the basis that their parents authorised the punishment and then the court discharged the boy.
(8) By Sachs LJ Hewer v. Bryant  1 QB 357, 371, CA.