The Mad Hatter’s Tea Party
“Have you guessed the riddle yet?” the Hatter said, turning to Alice again.
“No, I give it up,” Alice replied: “What’s the answer?”
“I haven’t the slightest idea,” said the Hatter.”
Lewis Carroll (Carrol, 1865), Alice in Wonderland
The argument for equality in the family built upon the principle that men and women were equal under the law, had equal voting rights and equal property rights; a pledge to remove all existing legal inequalities had been given by Lloyd George and Bonar Law in November 1918. An equally powerful opposing argument was that the law should reflect the common everyday practice within normal families and maintain inequality. Eleanor Rathbone and her supporters didn’t want mere equality with men and argued that women could not achieve equality on men’s terms within a workplace which had evolved to suit men: true wage equality, they recognised, was not attainable. Instead they wanted financial recompense for women regardless of whether they decided to work outside or within the home and for the state to recognise women as mothers and pay them a guaranteed weekly cash allowance to bring up their children: a wage for motherhood. Rathbone had written,
The work that a woman does in her own home in bearing and rearing children is not only so much more important to society, but so much more skilled, varied and interesting than nine out of ten of the jobs done by working women, or for the matter of that by working men, that only crass bad management on the part of society has made it seem more distasteful than tending a loom or punching a tram ticket (Rathbone, 1924).
Other feminists within NUSEC aggressively opposed this idea: they believed paying poor women to be mothers constituted the sale of motherhood and could not lead to women becoming financially independent of men. NUSEC nevertheless adopted Rathbone’s demands officially in 1925 and in 1946 her proposal took the form of the Family Allowance, although it was initially paid to fathers and only paid to mothers following protests by Rathbone and amendment just a few months before her death. In 1977 Family Allowance and the Child Tax Allowance which accompanied it were combined into Child Benefit. The difference is significant: an allowance is yours to keep, a benefit is the state’s to give. When paid at a level sufficient to support children these payments enable mothers to leave their relationships and thus they subsidise family breakdown. Fathers who are expected to contribute financially are effectively asked to fund a system which robs them of their family life and denies their children the right to have a father.
Family Allowance handed society a responsibility and an interest in the rearing of children, but the value of those children to society depended upon their being reared within the family. Rathbone envisaged that the allowance would be paid only to married mothers (Rathbone, 1924), but by divorcing that responsibility from the family and handing it to the state, she had given impetus to a rupture which would eventually tear children away from the family altogether. In time her well-intentioned wage would turn into an uncaring and bureaucratic engine of mass fatherlessness.
As women’s independence developed so the law changed to accommodate. The argument that fathers were, by virtue of being the chief wage-earner and better educated, better able to look after their children’s interests had become anachronistic. A more persuasive case, memorably expressed by Lord Askwith’s report into the Guardianship of Infants Bill, argued against the division of parental authority on purely practical grounds,
The mate of a ship may be as good or better seaman than the captain, but he must either take his place and act in his stead, or else remain the second in command. No ship-owner would contemplate giving him equal authority and power. One man alone must dictate the course and prescribe the speed. Divided counsels in bad weather would make for ship-wreck, even though both parties aspired to save the ship (Askwith, 1923).
A graver argument was that granting both parents legal authority over a child would necessitate resolving in court any disagreement over their children; this was considered intolerable for two reasons:
- The entirely inappropriate and irrevocable intrusion of the court – and especially the lay magistrates court – into the private realm of the family was intrinsically undesirable; it would introduce discord, and be irreversible; Sir Claud Schuster, Permanent Secretary and Clerk to the Crown in Chancery, warned, ‘If two persons have equal rights a deadlock issues whenever there is a difference between them’ (Schuster, 1922).
- The issues which would cause disagreement between parents would not be open to resolution through clear legal principles: they were not justiciable. Courts were concerned with the definite ascertainment of the parties’ rights, and parental disputes would be decided, not on the ‘rights’ of either party, but merely around their opinions, such as the choice of school or religion, and according to the discretion of the judge (or magistrates), ‘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?’ (Ibid.).
To expect the judiciary to adjudicate on matters of trivial domesticity was considered preposterous and an abuse of their elevated position which would require an expansion of resources and funding, and a commensurate increase in the numbers of judges and lawyers. A further objection was that public authorities would be unable to exercise their legal duties if they did not know to which parent to defer.
Thus the feminists succeeded in politicising the family and turned it into an election issue. In the 1923 General Election campaign the Conservatives – with some prescience – accused Labour of wanting to destroy the family and take children from their mothers to be made the property of the state. In January 1924 the formation of the first Labour Government, which had campaigned as the women’s party, produced what NUSEC believed was a parliamentary majority for parental equality (NUSEC, 1924). The compromise which Ramsay MacDonald thrashed out with NUSEC, the Guardianship of Infants Act 1925, gave married women powers equal to their husbands’ over their legitimate children to apply to the court over any issue regarding their children, equal rights to appoint guardians after their deaths, and the right to receive maintenance from fathers. The Government drew the line, however, at making mothers ‘joint guardians’ and a father remained sole legal guardian of his legitimate children, while such equality as it gave mothers depended on their making an application to the court. Few women yet had the economic autonomy to take on the obligations demanded by guardianship; lawmakers were well aware that giving equal legal rights to parents would force the courts to arrogate parental authority in order to resolve disputes. This they viewed as a recipe for disaster.
Guardianship had depended on legitimacy at a time when it mattered greatly whether a child was legitimate or not for reasons of inheritance of property (and title) and voting rights. It was not until the Legitimacy Act of 1926 that a bastard could be made legitimate by the marriage of his parents. The Act was designed to legitimate only those children whose parents were not or had not yet married, and was careful to exclude the children of adulterous relationships because of the threat otherwise of subverting the status of marriage. In 1956 the Morton report came down heavily against legitimating ‘adulterine’ bastards,
The issue is fundamental but perfectly plain. If children born in adultery may subsequently acquire the status of legitimate children, an essential distinction between lawful marriages and illicit unions disappears (Morton, 1956).
Nevertheless, John Parker MP introduced a Private Member’s Bill which subsequently became the 1959 Legitimacy Act and allowed the legitimating through marriage of adulterine bastards. The Family Law Reform Act of 1987 finally sought to erase the label ‘illegitimate’ from the statute book entirely and no longer discriminated against a child claiming financial support from his father merely because his parents were unmarried. However, a culture had already arisen in which mothers of illegitimate children preferred to claim financial support from the state rather than have to institute proceedings and seek an order against the father.
Until 1987 parental authority over an illegitimate child had been vested solely in the mother, so removal of the concept of legitimacy would have given fathers automatic parental authority, a development strongly resisted by lone mothers’ groups. Accordingly the Law Commission recommended that fathers of non-marital children could only acquire parental authority following judicial scrutiny (Law Commission, 1986). The 1989 Act modified this requirement by providing for an agreement between the mother and father in order to confer PR onto the father. This was designed to guard against ‘unmeritorious’ fathers, but accomplished that by assuming all fathers to be unmeritorious unless the mother decided otherwise.
Thus, despite the intention to dispense with illegitimacy, the Children Act still discriminated against illegitimate children: all mothers acquired PR automatically, but fathers only had PR if they were married to the mother at the time of the child’s birth, or if they later acquired it in accordance with the provisions of the Act; mothers could confer PR onto whomever they wished, fathers could not. Unlike automatic PR, acquired PR could be taken away again. These provisions required either the mother’s or the court’s consent and thus the Act disqualified an unmarried father from having any role in his children’s lives unless the mother wished it; she could just as easily choose someone else. If she didn’t wish it he was forced to apply to court. From December 2003 an amendment made it easier for an unmarried father to acquire PR by being included on a birth certificate, but it still meant, in effect, that an illegitimate child could benefit from the involvement of a father only if his mother permitted it.
In 1965 further pressure was brought to give mothers greater equality in parental legal authority. Dame Joan Vickers, Conservative MP for Plymouth, Devonport, brought a Bill to eliminate what she considered to be the continuing discrimination against women. The resultant Guardianship Act 1973 finally gave mothers the same rights and authority as fathers; either parent could now make an application to the courts without reference to the other, and expect the court to resolve the matter. Slowly but surely parental authority was undermined, taken from parents, and annexed by the courts; simultaneously parents’ ability to work together was subverted, opening the way for the courts to intervene further in parental differences.
Most of the 40 or so Acts concerning matrimonial law since 1967 have been introduced outside of the parliamentary process by the Law Commission; few of these Acts were introduced by members of Parliament or at public request. In 1984 responsibility for family law passed to Brenda Hoggett, a Manchester University academic, who became the first woman appointed to the Law Commission, declaring herself ‘a feminist of the kind who would like to see changes in the way society is organised’. She seems to have owed her position to a fellow Commissioner, Nigel Farrand, whom she later married 9 days after divorcing her first husband. In a collection of essays she had written,
Family Law no longer makes any attempt to buttress the stability of marriage or any other union… Logically we have already reached a point at which, rather than discussing which remedies should be extended to the unmarried, we should now be considering whether the legal institution of marriage continues to serve any useful purpose (Eekalaar & Kats, 1980).
Hoggett was the first Law Commissioner to introduce her personal take on hugely controversial social issues into statute law. A politically savvy feminist who embraced the usual collection of fashionable causes, she used her position as a political soap-box from which to broadcast her contentious views, making her ‘the most ideological, politically-correct judge ever to have been appointed to the highest court in the jurisdiction’ (Phillips, 2003). She attempted to turn the Law Commission, and thence the law itself, into an instrument of social change. Her Children Act incorporated into statute law the new practices introduced by the judiciary and consolidated the principle that the child’s interests were paramount; Hoggett considered the Act her greatest achievement: the law no longer supported marriage because ‘it has adopted principles for the protection of children and dependent spouses which could be made equally applicable to the unmarried’ (Amneus, 1999). She attempted to incorporate the ‘no fault’ principle further into statute law by means of the Family Law Act 1996, but the relevant section was never enabled.
It will surprise no one who has entered the strange, paradoxical world of the family courts that Hoggett and her cronies likened their little clique to the Mad Hatter’s tea party. Farrand was Tweedledum with Trevor Aldridge as Tweedledee; the chairman, Sir Roy Beldam, was the March Hare. Hoggett saw herself as Alice, but was surely better suited to the role of the Hatter himself. Now Baroness Hale and Deputy President of the Supreme Court, she has a caricature of the group hanging in her home.
Introducing the Children Bill to a full House of Commons on 27th April 1989 David Mellor, the Health Minister, said,
We have high ambitions for this Bill. We hope and believe that it will bring order, integration, relevance and a better balance to the law – a better balance not just between the rights and responsibilities of individuals and agencies, but, most vitally, between the need to protect children and the need to enable parents to challenge intervention in the upbringing of their children (Hansard, 1989).
During the ensuing debate Sir Raymond Powell, Labour MP for Ogmore, hoped,
The Children Bill, which emphasises the importance of both mothers and fathers in child-rearing, will end the inhuman, callous and cruel practice of divorcing a child from one of his or her loyal and devoted parents (Hansard, 1989).
Mellor’s claim revealed the inadequacies widely known to exist in the prevailing family justice system which was disordered, not integrated, and too easily allowed the intrusion of the state into families. It is evident now that the claims made for the Bill ring hollow: it has failed to live up to expectations. The Bill was timid, imprecisely written and poorly represented the will of Parliament. It failed to prevent the ‘inhuman, callous and cruel practice of divorcing a child from one of his or her loyal and devoted parents’ and failed to curb the rising tide of parents forced to resort to legal proceedings. Without preamble or explanation the Children Act introduced this extraordinary clause:
The rule of law that a father is the natural guardian of his legitimate child is abolished.
Explanation and justification for the otherwise baffling abolition of a principle which had endured for centuries was provided in the Law Commission paper No. 172, Review of Child Law Guardianship and Custody (Law Commission, 1988),
Our present law has no coherent legal concept of parenthood as such. Historically, guardianship [as a legal concept] came first. It developed as a means of safeguarding a family’s property and later became an instrument for maintaining the authority of the father over his legitimate minor children. Hence he was recognised as their ‘natural’ guardian. While he was alive the mother had no claims as natural guardian and was originally in no better position than a stranger. Nineteenth century legislation gave her limited rights to apply to the courts for custody and access and, in 1886, made her automatically guardian after the father’s death. The Guardianship of Infants Act 1925 provided that the father should be guardian on the mother’s death. It also gave the mother ‘like powers’ to those of the father to apply to the court in any matter affecting the child but deliberately stopped short of making her a joint guardian during his life-time. The Guardianship Act 1973 now states that the mother’s rights and authority are the same as the law allows the father, but nowhere does statute equate her position to the natural guardianship of the father, which has never been expressly abolished.
In our Working Paper on Guardianship we suggested that these archaic and confusing rules, under which parents who for all practical purposes have the same rights and authority are sometimes guardians and sometimes not, should be abolished. Instead, parenthood should become the primary concept. Any necessary distinctions between parents and guardians who act in loco parentis could then clearly be drawn and any lingering doubts about the status of mothers could be removed. Consultation revealed no disagreement with these proposals and we recommend accordingly.
‘Consultation revealed no disagreement’ because no one foresaw the consequences. Rather than give mothers the same authority as fathers, fathers were stripped of their authority. Having abolished a centuries-old system on a false understanding of how it worked, the Law Commissioners replaced it with the new concept of ‘Parental Responsibility’. It is clear that this was not the replacement of an arrangement ‘archaic and confusing’, but the introduction of a specifically feminist legislation. Unappreciated by the authors of Law Com. 172 was just how much the very basis of fatherhood depended upon the ‘archaic’ concept of guardianship. Parental Responsibility (PR) was defined as ‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property;’ however, these were not further defined; the truth is that PR confers no rights on a parent at all, only responsibility.
Amneus, D. (1999, September 20). The case for father custody. Alhambra, CA: Primrose Press.
Askwith, L. (1923). Report from the Joint Committee of Lords and Commons to consider the Guardianship of Infants Bill given a second reading on 26 March 1923.
Carrol, L. (1865). Alice in Wonderland. London: Macmillan.
Eekalaar, J., & Kats, S. (1980). Ends And Means: The Utility Of Marriage As A Legal Institution.
Hansard. (1989, April 28).
Law Commission. (1986). Illegitimacy: Second Report.
Law Commission. (1988). Review of Child Law Guardianship and Custody, Law Com. Working Paper 172. Law Commission.
Morton, F. D. (1956). Royal Commission on Marriage and Divorce: Report 1951-1955. London: HMSO.
NUSEC. (1924). NUSEC Annual Report.
Phillips, M. (2003, November 13). The Judicial Sister. Daily Mail.
Rathbone, E. (1924). The Disinherited Family.
Schuster, S. C. (1922, March 1). Minute to the Lord Chancellor, PRO LCO2/752, on the 1922 Bill.