Damned if you do and Damned if you don’t – The Child Care Legislation

June 24, 2012 § Leave a comment

Andrew Simpson stated in his blog comment from the posting Born of Good Intentions – “The Custody Act almost falls into that damned if you damned if you don’t argument. At what point does the State step in to protect the rights of a child? Regardless of how Barnardo may have used the legislation the principle that authorities should have the power to act is one that comes with the development of a welfare state.” Undoubtedly this is true and that children do need to be protected.   However this legislation impacted the migration of children from England tremendously.

The Custody of Children Act of 1891, dubbed the “Barnardo Relief Law” has been said to have been the law which stripped parents of their rights to their children when they were taken into care. In fact, there were four critical pieces of legislation which step by step accomplished this.

The very first act of parliament in the UK to prevent cruelty to children was the Prevention of Cruelty of Children Act of 1889.   It enabled the state to intervene, for the first time, in relations between parents and children. Police could arrest anyone found ill-treating a child, and enter a home if a child was thought to be in danger. The act included guidelines on the employment of children and outlawed begging.  Victorian England was a rough place for children as mentioned in the first blog entry and legislation was very much needed to help protect these children. And it did.

However, there was this clause in this legislation,  Section 5, which allowed the courts to remove children from unfit parents and place them with “fit” persons. While the order was in force, this fit person or organization had the powers of a parent over the child. These extended to immigration. No approval had to be sought from either the parent, the child or the Secretary of the State. This act also did not clarify “fit” person.  Approval from the Secretary of the State for migration of children did not come until 1894 and the issue of children’s consent to emigration did not settle until the 1933 Children’s and Young Person’s Act.

Therefore, this very much needed piece of legislation was the first door which opened to the legalized removal of these children from their parents and from England without consent of the parents by the child care organization and the “Child Savers” as they were also known.  The broad terms of “fit” and “unfit parents” were undefined boundaries that were tested and pushed by these organizations.

The Poor Law Act of 1889 also came into effect around this time.  Clause 1. (1) is the section of this law which, until the 1989 Children’s Act allowed local authorities to assume parental rights and duties. No legal action was required on behalf of the organizations to assume parental rights and if the parents objected they would have to fight it through the court system. This clause reads “”1.- (1.) – Where a child is maintained by the guardians of any union and was deserted by its parent, the guardians may at any time resolve that such child shall be under the control of the guardians until it reaches the age, if a boy, of sixteen, and if a girl of eighteen years, and thereupon until the child reaches that age all the powers and rights of such parent in respect of that child shall, subject as in this Act mentioned, vest in the guardians.” 

In this same time frame, there were several cases brought forth in the courts, parents applied for writes of Habias Corpus, demanding that Dr. Barnardo return their children. In fact Dr. Barnardo himself in  1885 had boasted that in no fewer then forty seven cases brought against him, he had won over the parental rights citing moral rights above judicial law.  Dr. Barnardo advocated “philanthropic abduction” above the law.  However, no cases had made the high court  until 1889 with the cases  of Harry Gossage, John James Roddy and Martha Ann Tye.  In Martha’s case,  Dr. Barnardo was “committed to prison”, guilty of failing to obey a court order to produce Martha when her mother demanded her return. In this judgement it was said “Dr. Barnardo, in his zeal for his own benovolent objects had overlooked the rights of other people and the law of the country.”

In December of 1889 the Clerk of the Thames Police noted that complaints against Dr. Barnardo were now frequent. In 1889, a Mrs. Louisa Kate Reid objected to Dr. Barnardo’s plan to send her daughter Emily Marion to Canada with with only a few days notice. Mrs. Reid requested the help of the courts in demanding the return of her daughter, stating she was in a better position now to care for her daughter herself. In July of 1889, Dr. Barnardo was ordered by the courts to return James Brooks to his mother. In August of 1889 two sisters sought to bring a writ of habeas corpus seeking the return of their sister who had been sent to Canada by Dr. Barnardo against their wishes, returned. In 1890 there was also the case brought to the courts by a sister & brother seeking information on their two sisters who were sent to Canada by Dr. Barnardo in 1883. They stated that they were not neglected or destitute, but rather sent to Dr. Barnardo’s in the belief they would receive a better training there. The fact is, there were many cases such as these brought to the courts and the fear was, many more would continue to do likewise.

In 1891 the Custody of Children Act came in to effect. This was mandated in large, because of the cases against Dr. Barnardo, most notably the Gossage and Tye case.   This law is described in the “Emigration Statues and General Handbook”  issued by the Immigrants Information Office, Westminster, April 1892 – Custody of Children Act 1891 – It has often happened that the emigration or other disposal of a child has been prevented, to the injury of the child, by the parent claiming its production. The Custody of Children Act, 1891 (which applies to the United Kingdon), gets rid of this difficulty by enacting in sect. 1: – When the parent of a child applies to the High Court or the Court of Session for a write or order for the production of the child, and the Court is of opinion that the parent has abandoned or deserted the child, or that he has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the child, the Court may in its discretion decline to issue the write or make the order.”

Further this act mandated that if an order was granted, then the parent could be made to repay the organization who had custody of the child part or all of the costs involved in caring for these children.  This law made it highly unlikely that poor parents would seek court action to regain custody as they would not likely be successful and if so, they would not be able to repay the costs of child’s care. From the proverbial horses mouth, they got rid of this difficulty and cleared the way to unhampered legalized migration of children without the consent of their parents.

Children after leaving private or public institutions in Britain,  often returned or reconnected with their families. The fourth piece of legislation, the “Reformatory and Industrial Schools Act 1891” sought to abolish the parents right to have their children home again after the children’s period of detention in institutions such as Barnardo’s. Described in the same 1891 handbook mentioned above – “If any youthful offender or child detained in or place out on licence from a certified reformatory or industrial school conducts himself well, the managers of the school may, with his own consent, apprentice him to, or dispose of him in, any trade, calling or service, or by emigration, notwithstanding that his period of detention has not expired, and such apprenticing or disposition shall be as valid as if the managers were his parents.”

In combination, these laws made legal the removal of children from parents who were deemed “unfit” – a term which was not clearly defined, stripped these parents of their parental rights without court intervention, prevented their return after their stay in institutions and legalized their removal from the country.

Although I believe these laws were  one of the major divides of the good works and the atrocious results of these migration schemes, they were just the tip of the ice berg.


Labouring Children by Joy Parr

Imagined Orphans by Lydia Murdock

Uprooted – The Shipment of Poor Children to Canada

The blogs of

Andrew Simpson

Sean Arthur Joyce

Copies of the legislation mentioned (with exception of the Reformatory and Industrial Schools Act 1891), newspaper articles  and the 1891 Emigration Statues and General Handbook can be found on the web site British Home Children in Canada


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