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 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 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 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 influence of the guardians to be maintained very effectively even after the minor has left the institution.