The special legal protection conferred upon minors consists of a limitation of their powers to enter into valid business engagements, the extent and consequences of the limitation being such as to render any engagements made by minors as harmless as possible. In the majority of legal systems, this leading idea is carried into effect as follows. Two classes of undertaking are distinguished: first, those by which the minor acquires certain rights or is freed from certain obligations; and, secondly, those which effect neither the one nor the other. Inasmuch as undertakings of the first-named order[107] are only such as are to the minor’s advantage, no guardianship is necessary in the case of these, and the minor’s powers to act are here unrestricted. But undertakings of the last-named order can be entered into by a minor only with the consent of his legal representative; thus, a disadvantageous undertaking given by a minor without the consent of his legal representative is invalid, and the validity of the undertaking is conditional upon the consent of the guardian.
The Tendency of Evolution.—Two points have especially to be considered in respect of the future regulation of this problem: the abolition of free competition, and the abolition of the right of individual inheritance. Many persons consider that it would be a logical outcome of the abolition of the right of individual inheritance for the State to undertake the maintenance of all widows and orphans, either through the instrumentality of a system of compulsory insurance analogous to Workmen’s Insurance, or else by a method of provision analogous to that now made for the widows and orphans of those in the employ of the State.
The Nature of Guardianship.—The purpose of guardianship is to provide minors with the equivalent of parents. A guardian is appointed for a minor when the latter is not subjected to any parental authority; or when, although the minor has parents, these are unfitted, through lack of means or through defect of personal character, to make a proper use of their parental authority. The analogy between parental authority and guardianship should result in the guardian, in his care for the person and property of the ward, being invested with almost the same duties and rights as belong to the possessor of parental authority. But since the relationship between ward and guardian is less intimate than the relationship between a child and its parents, the guardian’s sphere of activity is naturally a more restricted one. For example, in respect of certain very important undertakings, outside the limits of the guardian’s usual sphere of administrative activity, the latter’s powers are restricted by the qualification that in such cases the undertaking is rendered valid only with the prior assent of the Board of Guardianship (see footnote to p. 74).
[108]
Guardianship of Poor Children.—The principal aim of guardianship to-day is to provide for the careful administration of the property of the ward, and it thus has no bearing upon the fate of orphans of the proletarian class, although these are really more in need of guardianship than orphan children belonging to the upper classes. The only “property” of the proletarian child, whether orphaned or not, is its power of working for wages. The adequate cultivation and utilisation of this power is more important to the proletarian child than the right administration of its property is to the child of the well-to-do. Although, as a rule, the proletarian child begins to work for wages while still under age, our existing legal systems make no provision for guardians and the Board of Guardianship to exercise much influence upon the working conditions of such children. It is owing to this defect in our laws that the exploitation of the labour-power of minors is so widely prevalent.
To obviate these disadvantages, the following institutions are necessary, although they would temporarily interfere with social intercourse. Contracts of service in the case of minors should not be valid without the assent of the latter’s legal representatives and that of the Board of Guardianship, and such contracts should be terminable at any time by the legal representative with the approval of the Board of Guardianship. Should the parents of a child secretly arrange for it a contract of service, or should they compel the child to work for wages, they should have no legal claim to any portion of these wages. Where such measures are in operation, as in some of the States of the American union, children are much less frequently compelled by their parents to work for wages.
Guardianship of Illegitimate Children.—The guardianship of illegitimate children is a matter of great importance: first, because a very large number of influences affect illegitimate children unfavourably, and the children have to be protected against these influences; secondly, because the guardian has to safeguard the interests of his ward against the natural father and also against the Destitution Authority; thirdly, because in many countries the laws provide that every illegitimate child should have a guardian. Who should be the guardian of an[109] illegitimate child? The guardian may be, (a) the mother, (b) the father, (c) some other relative, (d) a stranger.
(a) According to the laws of most countries, the mother has no parental authority over her illegitimate child; indeed, in some cases, the mother is not even granted legal powers of guardianship over her illegitimate child (or is granted such powers only if she herself is of full age). The reasons for this are as follows: The considerations on account of which the granting of parental authority to the married mother is regarded as permissible, have no bearing upon the case of the unmarried mother. The interest of the illegitimate child, and, indirectly, the interest of society at large, urgently demand the securest possible guarantees that the child will be properly brought up. Even if the unmarried mother is capable of undertaking and exercising the duties and rights involved in parental authority, she still too often lacks the necessary good-will and the requisite earnestness. In many cases the unmarried mother does not feel for her illegitimate child the interest and the love which are felt by the married mother for the legitimate child; she is rather inclined to be indifferent towards her illegitimate child, and to regard it merely as a serious burden, from which she hopes to be free, and the sooner the better. In addition, the unmarried mother seldom has a settled home of her own, and in order to gain her livelihood she commonly has to separate herself from her child. Moreover, the position of the unmarried mother differs from that of the married mother in this respect, that the latter, as a rule, does not acquire the parental authority until after the death of her child’s father—that is to say, when she is herself of mature age. The care of the property and the exercise of the powers of a legal representative are associated with the exercise of parental authority, and there is an obvious danger, in many instances, that a thoughtless mother might utilise the child’s property—more especially an allowance for maintenance made by the father, or a capital sum paid by the latter to provide for the child—in her own interest, instead of in that of the child, and that in this way the provision made by the child’s natural father would be unprofitably employed. If the mother of an illegitimate child be disallowed the right of acting as the[110] child’s legal representative, we obviate the danger that that right may be misused by a dissolute or thoughtless mother by making fraudulent claims for a bastardy allowance in the name of the child upon various men who may have had intercourse with her during the period of pregnancy. In many cases, unmarried mothers are dissolute, extravagant, and therefore untrustworthy persons, and for this reason it is in the interest of morality that the unmarried mother should not be able to derive any direct pecuniary advantage as a result of her position. Often she cannot or will not make the necessary claim upon the father of the child, either from shame or from undue sentimentality, or, again, because she still secretly hopes that he will marry her, and fears to offend him, or, finally, because in many cases she is not herself certain who is the father of her child. The various reasons we have been considering are not altogether free from objection. The advocates of the emancipation of women, and also the socialists, contest these reasons with considerable force on the ground that other persons than the mother of an illegitimate child, who are suggested as guardians, are even less fitted for the position than she may be herself.
(b) It is impossible, in any case, that the natural father should be the child’s guardian. How, for example, can he be expected to sue himself for the child’s maintenance? It often happens that the mother refuses to name the father of her child, but recommends him as guardian, and he actually is in some cases appointed guardian. To avoid this, many wish to make it the mother’s legal duty to disclose the name of the child’s father to the Board of Guardianship.
(c) One of the child’s relatives is no suitable person for guardian. The mother’s relatives have in most cases broken with the mother owing to the birth of the illegitimate child. The relatives of the father of an illegitimate child are as little suited to act as guardians as the father himself.
(d) A stranger is utterly unsuitable for the guardianship of an illegitimate child. In most cases he has no interest whatever in the child, and very frequently, from sheer laziness, he fails to make good the claim for maintenance against the father. Indeed, he is not in a position to make such a claim[111] good. He is ill-informed, inexperienced, ignorant of the law, does not understand the procedure of the Boards of Guardianship, and is incompetent to overcome the mother’s opposition. His appointment is often long delayed, although it is a fact of general experience that a claim for maintenance can more readily be established the earlier proceedings are taken against the father. The father often changes his residence, and the guardian has no facilities for obtaining information about his dwelling-place or his means.
The Defects of Individual Guardianship.—As time goes on it becomes increasingly difficult to obtain suitable guardians for children of the lower classes. Owing to the increasing frequency of migration, owing to the search for work and means of livelihood, and owing to the development of the means of communication, the wider family ties have been loosened and in part entirely destroyed. Since it is only in the case of propertied wards that the guardian receives any remuneration, the guardianship of a ward without means is a purely honorary office. But we cannot rely upon finding a self-sacrificing disposition in the relatives of a proletarian child. If a man of a higher class than that to which the child belongs be appointed, he will be afraid lest he should have to put his hand in his own pocket. If a man of a lower class be appointed, the child will not regard him with the necessary respect.
In small communities, where the circumstances are simple, where the number of births and deaths is small, where everyone knows everyone else, and where the guardian is under the control of everybody, the difficulties are not so great. But in large towns the population is in a state of continual flux, a large proportion has immigrated from the country districts, and has neither relatives nor acquaintances in the towns, and the Boards of Guardianship are unlikely to know anyone suitable for the position of guardian. In large towns, persons living under the same roof may be utter strangers, not knowing one another’s name nor even one another’s general appearance. Since the appointment as guardian is one which as a rule cannot be refused, it is easy to understand the manner in which one who has been appointed guardian against his will is likely to neglect his duties. As the legal representative[112] of the child, the guardian has frequent dealing with the local authorities. Since the ward can make claims upon the Destitution Authority, his domicile must be established, for which purpose it may be necessary to pay a visit to the locality in question, &c.
The guardian, especially one who belongs to the lower classes, is without experience, is ignorant of the law, is ignorant of the methods of procedure of the local authorities, and fails to inspire respect in the strangers with whom he has to deal. Often the guardian, far from assisting the poor-law authorities in their work, puts needless obstacles in the way of these latter, and renders it difficult for them to carry out their aims. This last remark applies even more forcibly to the other legal representatives of minors, viz. to their parents. It often happens that the legal representative endeavours to exercise an evil influence upon a child under the care of the poor-law authorities; while the child is still quite young, he ignores its existence, but as soon as it attains an age at which it becomes competent to earn any money, he demands that it should be handed over to his care. If the Board surrenders the care of the child, all the trouble previously taken to bring it up properly will usually be found to have been wasted, for the child now returns to the evil environment from which it had formerly been removed. In England, a law passed in the year 1899 gives the Poor Law Guardians the right to refuse to accede to the request of parents that a child should be restored to their care in cases in which the parents’ life is such as to make it impossible for them to provide for the child’s regular education, or when the parents are persons with vicious habits. Attempts are being made to improve the system of individual guardianship, by a thorough reconstruction, by the organisation of the guardians, &c. It is mainly owing to the defects that have been pointed out in the system of individual guardianship that official (general or collective) guardianship, and institutional guardianship, have come into existence.
Nature of Official and Institutional Guardianship.—The legal basis of official guardianship is the right and the duty of the State to act as the supreme guardian of all minors. Its characteristics are as follows: Over a specified group of[113] children—children put out to nurse, foundlings, or illegitimate children, a particular person (he may be a private individual or one in an official position), in virtue of the authority of the law (that is, without specific appointment in each case, and without the option of refusing in particular cases to exercise his powers), exercises the powers of a guardian. In certain cases, official guardianship involves powers superseding those of ordinary parental authority (this applies to the case of illegitimate children, destitute children, and children put out to nurse). There can be no reasonable objection to this, for in such cases the parents’ own authority exists de jure only, and not de facto. But the parental authority is not irrevocably invested in the official guardian, and the latter exercises only such rights and duties as properly belong to a guardian. For example, the right of usufruct in a child’s property cannot be assigned to the official guardian. Institutional guardianship consists in the exercise of guardianship by a State educational institution, or other State institution for the care of children, over children in that institution, the actual powers of guardianship being invested in the director or some other official of the institution.
Advantages of Official and Institutional Guardianship.—(a) The local authorities entrusted with the general care of a particular group of children—destitute children, for instance—can readily, and with little additional trouble, assume the duties of guardianship. Experience shows that this combination of duties gives extremely satisfactory results, without imposing on the Boards in question any serious increase in their duties. The administrative Boards controlling reformatory schools must, if their duties are to be properly performed, possess unlimited authority in respect of all matters bearing on the upbringing of those under their care. In Europe, the official guardianship of morally uncontrollable children is likely to bring into being a system of children’s courts, with probation officers, or to develop that system further where it already exists.
(b) The official guardian is much better able than the individual guardian to make good the claim for a maintenance allowance for an illegitimate child. The official guardian, who is in most cases an official working on behalf of the poor-law[114] authorities, will push such a claim with the greatest possible vigour, in order to prevent the cost of the child’s maintenance from coming upon the poor law. The official guardian will be actively at work on the child’s behalf within a very few days of its birth, and will probably have been able to secure that a proper provision for maintenance shall have been made at the very time when it is most urgently needed. The father will show much more respect to the official guardian—a man in an official position—than he will to the individual guardian. In Germany it has been the general experience, that in most cases the father of an illegitimate child, when summoned by the official guardian, puts in an appearance, admits his paternity, recognises the child, and undertakes to make an allowance for maintenance. Nor does it so rarely happen that, under the persuasion of the official guardian, the child’s father and mother agree to marry, and to legitimise their child. The official guardian owes his influence to his official position.
(c) The official guardian possesses special legal and educational experience, and in the management of the large number of cases with which he has to deal acquires yet more experience. For these reasons he is often consulted in difficult cases by individual guardians, and even by many parents.
(d) It is easier for the official guardian than it is for the private guardian to find suitable employment for his wards. He is better acquainted with employers and with working conditions. It is not to his interest that his wards should begin wage-earning at the earliest possible age; thus, under his guardianship, many who would otherwise have become unskilled labourers, are trained to be skilled artisans. (But to make it possible to attain this end, and because the years immediately after leaving school are the years most dangerous to the child, the official guardianship must be continued until the child attains its majority.)
(e) Since the existence of the official guardian makes the appointment of private guardians superfluous, the persons who would have otherwise been engaged as private guardians are set free for other spheres of activity.
(f) Institutional guardianship renders it possible for the[115] influence of the guardians to be maintained very effectively even after the minor has left the institution.
Objections to Collective and Institutional Guardianship.—The following objections to collective and to institutional guardianship have been put forward. (a) A conflict of interests and duties may arise. The business of the poor-law authorities is to keep down expenses, but the guardian has to think first of all of the interests of his ward, who may need the financial assistance of the poor-law authorities. (b) The local authorities are not in a position to carry out properly the duties of official guardianship. In a large local governmental area the circumstances of individual residents are not adequately known; whilst in a small area, suitable official guardians are not likely to be forthcoming. (c) The authority administering the work of official guardianship has to accept a position of subordination in relation to the (central) Board of Guardianship. Thus there arises friction, and the autonomy of the local authorities may even be endangered. (d) Owing to the fact that the wards under the charge of an official guardian are very numerous, the duties are necessarily discharged in a bureaucratic and stereotyped manner, and the requisite individualisation is lacking.
These Objections Answered.—There is no doubt whatever that official guardianship gives better results than an otherwise equally efficient system of private guardianship. But the very statement of the antithesis involves a fallacy, for the kernel of the matter is, that in cases in which no competent and willing individual guardian is available, the official guardian is there to take over the necessary duties. The fact that an official guardian exists need not prevent the placing of the child under the guardianship of a suitable private person, should such a one be forthcoming. Objection (b) is valid to this extent, that in small local governmental areas, in which the cost of official guardianship falls upon the poor rate, and the burden of this rate is grievously felt, official guardianship cannot be properly carried out. Objection (d) has but little validity. Of course, the official guardian cannot do everything himself. He must have confidential assistants, who will visit the foster-parents of the ward, and report to him everything of importance concerning the child. The[116] official guardian has not only to supervise the work of these confidential assistants, to support them with his advice in difficult cases, and to control the necessary expenditure; he has also to attend to all the legal aspects of his charge, and to perform the duties entailed upon him as legal representative of his ward. Thus the official guardian’s duties may be classified as follows: (a) the upbringing of his ward; (b) legal duties; (c) the choice of confidential assistants. In the first department, the most important matter is the careful choice of the foster-parents. The official guardian’s experience and business connections undoubtedly make him far more likely than the individual guardian to secure good foster-parents. The legal duties of the official guardian, such as the provision of maintenance for the child, are merely routine official duties. It is much easier to secure the requisite ten confidential assistants than to secure a hundred private guardians.
The Tendency of Evolution.—(a) The property of a ward is usually inherited, and as time goes on such property becomes of less and less importance. The guardianship we are considering here has very little to do with such questions of property, and the guardian’s activities are practically limited to securing the personal well-being of the child. (b) Official guardianship is a typical example, on the one hand, of the manner in which a matter appertaining to civil law tends to become an affair of local administrative activity, and in which duties originally honorary and benevolent tend to pass into the hands of a salaried public official; and, on the other hand, of the fact that in this sphere also the principle of the division of labour comes to be ever more strictly applied, so that functions formerly exercised non-professionally by private individuals are now discharged professionally by public servants.
The importance of official guardianship has steadily increased. The idea that the guardianship of children supported by the community might be exercised by the poor-law authorities was first put into practice in France towards the end of the eighteenth century. In other countries the same idea has been applied with greater or less modification. In Germany, official and institutional guardianship were permitted by the Civil Code of 1900. Official guardianship[117] exists at present only in the larger towns; but the institution continues to spread. In France, a law enacted in the year 1889 permits the voluntary transference of parental authority to the Assistance Publique, in which case the Prefect or his representative, the Departmental Inspector des enfants assistés, acts as guardian. By the law passed in the year 1904, the same inspector acts as guardian of the enfants assistés. But the inspector has no concern with the enforcement of the rights of illegitimate children as against their father, since any inquiry into paternity is forbidden by the French Civil Code. Official guardianship exists in many of the cantons of Switzerland.
Certain Civil Laws which are of Importance in Relation to Child-Protection.—(a) Legitimisation has been considered above. (b) Adoption would be a very important and valuable institution from the point of view of child-protection, if adopted children were more numerous. The fact that this institution exists is often disadvantageous from the point of view of child-protection. In many cases it operates as an obstacle to the legitimisation of the child by the father, although legitimisation would be more advantageous to the child than adoption. For in many cases the father, if he could not adopt the child, would legitimise it. A certain though small proportion of foster-parents adopt their foster children. This tendency is certainly one worthy of encouragement.
(c) We have also to refer to the legal relationships which arise when a contract has been made for the temporary or permanent, partial or complete, upbringing of a child. As an example of permanent and complete upbringing, may be adduced the upbringing of a child by foster-parents. In this case, the duties of the foster-parent are controlled by special legal stipulations. As an example of temporary or partial upbringing, may be mentioned the case of a child sent to a boarding school at a distance from its home, a child boarding with a family, and various similar arrangements. All these legal relationships are covered by the laws relating to contract, and by the laws relating to family life. This is a matter of considerable importance, because, in a legal relationship taking the forms of family life, the presumption is that a child’s upbringing is effected without any expectation of a return, i.e. gratuitously.