The Elements of Child-protection

by Sigmund Engel

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]).

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 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 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 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.