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 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 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.