1911 Encyclopædia Britannica/Children, Law Relating to

CHILDREN, LAW RELATING TO. English law has always in theory given to children the same remedies as to adults for ill-usage, whether by their parents or by others, and has never recognized the patria potestas as known to the earlier Roman law; and while powers of discipline and chastisement have been regarded as necessarily incident to paternal authority, the father is civilly liable to his children for wrongs done to them. The only points in which infancy created a defect in civil status were that infants were subject to the restraints on complete freedom of action involved in their being in the legal custody of the father, and that it was and is lawful for parents, guardians, employers and teachers to inflict corporal punishment proportioned in amount and severity to the nature of the fault committed and the age and mental capacity of the child punished. But the court of chancery, in delegated exercise of the authority of the sovereign as parens patriae, always asserted the right to take from parents, and if necessary itself to assume the wardship of children where parental rights were abused or serious cruelty was inflicted, the power being vested in the High Court of Justice. Abuse of the power of correction was regarded as giving a cause of action or prosecution for assault; and if attended by fatal results rendered the parent liable to indictment for murder or manslaughter.

The conception of what constitutes cruelty to children undoubtedly changed considerably with the relaxation of the accepted standard of severity in domestic or scholastic discipline and with the growth of new ideas as to the duties of parents to children, which in their latest developments tend enormously to enlarge the parental duties without any corresponding increase of filial obligations.

Starting from the earlier conception, which limited ill-treatment legally punishable to actual threats or blows, the common law came to recognize criminal liability in cases where persons, bound under duty or contract to supply necessaries to a child, unable by reason of its tender years to provide for itself, wilfully neglected to supply them, and thereby caused the death of the child or injury to its health, although no actual assault had been committed. Questions have from time to time arisen as to what could be regarded as necessary within this rule; and quite apart from legislation, popular opinion has influenced courts of justice in requiring more from parents and employers than used to be required. But parliament has also intervened to punish abandonment or exposure of infants of under two years, whereby their lives are endangered, or their health has been or is likely to be permanently injured (Offences against the Person Act of 1861, s. 27), and the neglect or ill-treatment of apprentices or servants (same act, s. 26, and Conspiracy and Protection of Property Act 1875, s. 6). By the Poor Law Amendment Act 1868, parents were rendered summarily punishable who wilfully neglected to provide adequate food, clothing, medical aid or lodging for their children under fourteen years of age in their custody, whereby the health of the child was or was likely to be seriously injured. This enactment (now superseded by later legislation) made no express exception in favour of parents who had not sufficient means to do their duty without resort to the poor law, and was construed as imposing criminal liability on parents whose peculiar religious tenets caused them advisedly to refrain from calling in a doctor to a sick child.

The chief progress in the direction of adequate protection for children prior to 1889 lay less in positive legal enactment on the subject than in the institution of an effective system of police, whereby it became possible to discover and repress cruelty punishable under the ordinary law. It is quite inaccurate to say that children had very few rights in England, or that animals were better protected. But before the constitution of the present police force, and in the absence of any proper system of public prosecution, it is undeniable that numberless cases of neglect and ill-treatment went unpunished and were treated as nobody’s business, because there was no person ready to undertake in the public interest the protection of the children of cruel or negligent parents. In 1889 a statute was passed with the special object of preventing cruelty to children. This act was superseded in 1894 by a more stringent act, which was repealed by the Prevention of Cruelty to Children Act 1904, in its turn superseded for the most part by the Children Act 1908, which introduced many new provisions in the law relating to children and specifically deals with the offence of “cruelty” to them. This offence can only be committed by a person over sixteen in respect of a child under sixteen of whom he has “custody,” “charge” or “care.” The act presumes that a child is in the custody of its parents, step-parents, or a person cohabiting with its parent, or of its guardians or persons liable by law to maintain it; that it is in the charge of a person to whom the parent has committed such charge (e.g. a schoolmaster), and that it is in the care of a person who has actual possession or control of it. Cruelty is defined as consisting in assault, ill-treatment (falling short of actual assault), neglect, abandonment or exposure of the child in a manner likely to cause unnecessary suffering or injury to health, including injury to or loss of sight, hearing or limb, or any organ of the body or any mental derangement; and the act or omission must be wilful, i.e. deliberate and intentional, and not merely accidental or inadvertent. The offence may be punished either summarily or on indictment, and the offender may be sent to penal servitude if it is shown that he was directly or indirectly interested in any sum of money payable on the death of the child, e.g. by having taken out a policy permitted under the Friendly Societies Acts. A parent or other person legally liable to maintain a child or young person will be deemed to have “neglected” him by failure to provide adequate food, clothing, medical aid, or lodging, or if in the event of inability to provide such food, &c., by failure to take steps to procure the same under acts relating to the relief of the poor.

These statutes overlap the common law and the statutes already mentioned. Their real efficacy lies in the main in the provisions which facilitate the taking of evidence of young children, in permitting poor law authorities to prosecute at the expense of the rates, and in permitting a constable on arresting the offender to take the child away from the accused, and the court of trial on conviction to transfer the custody of the child from the offender to some fit and willing person, including any society or body corporate established for the reception of poor children or for the prevention of cruelty to children. The provisions of the acts as to procedure and custody extend not only to the offence of cruelty but also to all offences involving bodily injury to a child under sixteen, such as abandonment, assault, kidnapping and illegally engaging a child in a dangerous public performance. The act of 1908 also makes an endeavour to check the heavy mortality of infants through “overlaying,”[1] enacting that where it is proved that the death of an infant under three years of age was caused by suffocation whilst the infant was in bed with some other person over the age of sixteen, and that that person was at the time of going to bed under the influence of drink, that other person shall be deemed to have neglected the child in manner likely to cause injury to its health, as mentioned above. The acts have been utilized with great zeal and on the whole with much discretion by various philanthropic societies, whose members make it their business to discover the ill-treated and neglected children of all classes in society, and particularly by the Society for the Prevention of Cruelty to Children, which is incorporated under royal charter of the 28th of May 1895, for the purposes inter alia of preventing the public and private wrongs of children, and the corruption of their morals and of taking action to enforce the laws for their protection.

The act of 1908 enacted more stringent provisions against baby-farming (q.v.). The Infant Life Protection Act of 1897 did not apply where only one child was taken, but now by the act of 1908, where a person undertakes for reward the nursing and maintenance of one or more infants under the age of seven years apart from their parents or having no parents, he must give notice in writing to the local authority within forty-eight hours from the reception of the child. If an infant is already in the care of a person without reward and he undertakes to continue the nursing for reward, such undertaking is a reception of the child. The notice to the local authority must state the name, sex, date and place of birth of the infant, the name and address of the person receiving the infant and of the person from whom the infant was received. Notice must also be given of any change of address of the person having the care of the infant, or of the death of the infant, or of its removal to the care of some other person, whose name and address must also be given. It is the duty of local authorities to provide for the carrying-out in their districts of that portion of the act which refers to nursing and maintenance of infants, to appoint infants’ protection visitors, to fix the number of infants which any person may retain for nursing, to remove infants improperly kept, &c. Relatives or legal guardians of an infant who undertake its nursing and maintenance, hospitals, convalescent homes, or institutions, established for the protection and care of infants, and conducted in good faith for religious and charitable purposes, as well as boarding schools at which efficient elementary education is given, are exempt from the provisions of the act.

The acts of 1904 and 1908 deal with many other offences in relation to children and young persons. The act of 1904 introduced restrictions on the employment of children which lie on the border land between cruelty and the regulation of child labour. It prohibits custodians of children from taking them, or letting them be, in the street or in public-houses to sing, play, perform or sell between 9 p.m. and 6 a.m. These provisions apply to boys under fourteen and girls under sixteen. There are further prohibitions (1) on allowing children under eleven to sing, play, perform or be exhibited for profit, or offer anything for sale in public-houses or places of public amusement at any hour without a licence from a justice, which is granted only as to children over ten and under stringent conditions; (2) on allowing children under sixteen to be trained as acrobats, contortionists, or circus performers, or for any dangerous performance; and the Children’s Dangerous Performances Act 1879, as amended in 1897, makes it an offence to employ a male young person under sixteen and a female under eighteen in a dangerous public performance.

The act of 1908 renders liable to a fine not exceeding £25, or alternatively, or in addition thereto, imprisonment with or without hard labour for any term not exceeding three months, any custodian, &c., of any child or young person who allows him to be in any street, premises or place for the purpose of begging or receiving alms, or of inducing the giving of alms, whether or not there is a pretence of singing, playing, performing or offering anything for sale. An important departure in the act of 1908 was the attempt to prevent the exposure of children to the risk of burning. Any custodian, &c., of a child under seven who allows that child to be in a room Containing an open grate not sufficiently protected to guard against the risk of burning or scalding is liable on summary conviction to a fine not exceeding £10. Provision is made against allowing children between the ages of four and sixteen to be in brothels; it is also made a misdemeanour if any custodian, &c., of a girl under sixteen causes or encourages her seduction or prostitution, and any person having the custody of a young girl may be bound over to exercise proper care if it is shown to the satisfaction of a court of summary jurisdiction, on the complaint of any person, that she is exposed to such risk.

The act of 1908, following legislation in many parts of the United States and in some of the British colonies, places a penalty on selling tobacco to any person apparently under the age of sixteen, whether for his own use or not. It empowers constables and park keepers to seize tobacco in the possession of any person apparently under sixteen found smoking in any street or public place, as well as to search them; it also empowers a court, of summary jurisdiction to prevent automatic machines for the sale of tobacco being used by young persons. The act also contains useful provisions empowering the clearing of a court whilst a child or young person is giving evidence in certain cases (e.g. of decency or morality), and the forbidding children (other than infants in arms) being present in court during the trial of other persons; it places a penalty on pawnbrokers taking an article in pawn from children under fourteen; and on vagrants for preventing children above the age of five receiving education. It puts a penalty on giving intoxicating liquor to any child under the age of five, except upon the orders of a duly qualified medical practitioner, or in case of sickness, or other urgent cause; also upon any holder of the licence of any licensed premises who allows a child to be at any time in the bar of the licensed premises; or upon any person who causes or attempts to cause a child to be in the bar of licensed premises other than railway refreshment rooms or premises used for any purpose to which the holding of a licence is merely auxiliary, or where the child is there simply for the purpose of passing through to some other part of the premises. It makes provision for the safety of children at entertainments, and consolidates the law relating to reformatory and industrial schools, and to juvenile offenders (see Juvenile Offenders).

In the act of 1908, “child” is defined as a person under the age of fourteen years, and “young person” as a person who is fourteen years and upwards and under the age of sixteen years. The act applies to Scotland and Ireland. In the application of the act to Ireland exception is made relative to the exclusion of children from bars of licensed premises, in the case of a child being on licensed premises where a substantial part of the business carried on is a drapery, grocery, hardware or other business wholly unconnected with the sale of intoxicating liquor, and the child is there for the purpose of purchasing goods other than intoxicating liquor.

British Possessions.—Legislation much on the lines of the acts of 1889–1908 has been passed in many British possessions, e.g. Tasmania (1895, 1906), Queensland (1896, 1905), Jamaica (1896), South Australia (1899, 1904), New South Wales (1892 and 1900), New Zealand (1906), Mauritius (1906), Victoria (1905, 1906). In South Australia a State Children’s Department has been created to care for and manage the property and persons of destitute and neglected children, and the officials of the council may act in cases of cruelty to children; the legislation of Victoria and Queensland is based on that of South Australia.

  1. There has been some doubt as to whether it is more correct to say a person “overlays” or “overlies” a child, and the question came up in committee on the bill. According to Sir J. A. H. Murray (see Letter in The Times, 12th of May 1908) “to lie,” an intransitive verb, becomes transitive when combined with a preposition, e.g. a nurse lies over a child or overlies a child; “to lay” is the causal derivative of “to lie,” and is followed by two objects, e.g. to lay the table with a cloth, or to lay a cloth on the table; similarly, to overlay a surface with varnish, or to overlay a child with a blanket, or with the nurse’s or mother’s body. The instrument can be left unexpressed, and a person can be said to overlay a child, i.e. with her own body, a pillow, &c. Thus, while “overlie” covers the case where the woman herself lies over the child, “overlay” is the more general word.