Emigration of Children who have been deprived
of a normal home life
CHRONOLOGY
| 1.# English Law
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| Empire Settlement Act | 1992
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| Guardianship of Infants Act | 1925
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| Poor Law Act | 1930
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| Children and Young Persons Act | 1933
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| Empire Settlement Act | 1937
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| War Orphans Act | 1942
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| Care of Children Committee (Curtis) | 1945
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| Children Bill | 1947
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| Children Act | 1948
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| The Moss Report (Cmnd. 6922) | 1953
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| The Ross Report (Cmnd. 9832) | 1956
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| 2. #Australian Law |
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| Immigration (Guardianship of Children) Act
| 1946 |
| Immigration (Guardianship of Children) Regulations
| 1946 |
Enquiry into the Emigration of Children
who have been deprived of a normal home life1.
There is a long history of child migration from the United Kingdom,
pre-dating the twentieth century. Much of it relates to the development
of nineteenth century philanthropy and the alleviation of poverty,
but some relates to the exploitation of those too young to provide
for their own welfare. Curiously, the migration of unaccompanied
children taking place in the post-1945 period continued this mixture
of philanthropy and exploitation in the face of growing public
concern that such migration was generally of doubtful benefit
to the children.2. I am assuming the present day Enquiry will
cover child migrants from all the countries to which children
were migrated, but it is Australia and New Zealand with which
I have been most involved and I shall concentrate on legislation,
and government departmental follow-up to that legislation, in
relation to those countries.3. Formal British Government approval
for the migration of children without their families was given
a fillip by the Empire Settlement Acts of 1922 and 1937 [see Appendix
1] in which a per capita sum of 10/- per week was promised to
the institution responsible for caring for the child until they
reached 16. Such remuneration was to follow the signing of a contract
between the Government and the Institution, by which contract
it could be argued that the Government impliedly accepted the
Institution as one "fit" to be part of the scheme. [Appendix
2] In the event, there were agreements made with eight child migration
societies between 1922 and 1952 for the migration of children
to Australia and one to Southern Rhodesia. Children were migrated
to New Zealand, often via Australia, but they were almost always
to foster homes. The New Zealand scheme came to a halt in September
1952.4. In 1945 speeches by Arthur Caldwell, Immigration Minister
to the Australian Parliament, are quite clear. They reflect the
conclusion of the Australian Inter Departmental Committee on Child
Migration (1944-46). There is a plea for Australia to receive
sufficient numbers of migrants to allay national fears that the
country might be vulnerable to attack again. I have not read inter-government
correspondence on the subject but it seems clear from governmental
demeanour that Britain agreed to help with this plea. The intention
was, at least in part, to protect the Commonwealth. Partially
also, it seems to have been to rid Britain of some children likely
to become a drain on the State's stretched resources in the period
of post-war austerity.5. In 1942 the Minister of Pensions was
made responsible by the War Orphans Act for the care of any true
orphans as a result of enemy actions. In 1944 the Dominions Office,
after enquiry of the Ministry of Pensions, received the following
missive:
"The Minister of Pensions has been made
responsible by the War Orphans Act for the care of children in
the United Kingdom orphaned by enemy action...such children shall
not leave the country until they are old enough to make an informed
choice...this [sic] refers only to this special class of
war orphans."6. It may be that some of those migrated must
have been true war orphans but I have not had contact from any
of them. It seems likely that the Minister made careful decisions.
The vast majority of migrants were more easily classified as "illegitimate"
casualties of war, at a time when illegitimacy was a considerable
stigma.7. It is trite to state that the Second World War was
a catalyst for great upheavals in social policy. However, the
crux of the legal argument concerning those parts of what became
the Children Act 1948 relied heavily on The Care of Children Committee
Report (Cmnd. 6922) (known as the Curtis Report) 1946. This in
itself was a thoughtful document covering a more sophisticated
approach to child care and displaying an understanding of child
psychology than the pre-war standard. At paragraph 515 of that
report the Committee recommended that children should not be taken
out of the country without a reasonable certainty of not less
favourable conditions and prospects for them in the new country.8.
The Curtis Report was debated in the House of Lords in 1946.
There is no doubt about what the recommendations are for children
in care, both for their needs and for the use of registration
and inspection of voluntary homes, and that these recommendations
were taken on board by the Attlee Government.9. I think it is
fair to acknowledge that there are likely to have been some involved
in child care who remained ill-informed about the progress that
had been made in understanding the psychological development of
children, and their needs as infants, but the Government itself
was not.10. The Children Bill was drafted very much in the spirit
of the Curtis Report. When it came to child migration, however,
there was a strong lobby from the voluntary societies to continue
with the pre-war migrations.11. On several occasions during the
Committee Stage, assurances were given to Members of both Houses
concerning the drafting of certain sections relating to child
migrants. I have interviewed former Children's Officers from local
authorities who confirmed the general state of knowledge amongst
child care providers in 1948 and read the correspondence in The
Times at the passing of the Act. [See Appendix 3.] There can be
no doubt that the Government was made aware at the time of the
needs of infants "deprived of a normal home life"...12.
By s17 Children Act 1948, the Home Secretary became responsible
for the "export" of all child migrants in the care of
local authorities, in that they could not be migrated unless he
was personally aware that such migration would be of benefit
to the child concerned. Without his signature, no child in local
authority care could be migrated. It has not been possible to
look at any of the files relating to those children whose migration
he sanctioned. I have been unable to find a single PRO file relating
to the individual children migrated. Either they are restricted
files or they have, for some inexplicable reason, been destroyed.
Alternatively, the files remain "live", containing material
about those migrated, awaiting one knows not what, for destruction
to be authorised. An explanation about these files should be forthcoming
and the child migrants should be given access to any of the files
containing details about themselves that are still extant.13.
During the passage of the 1948 Act, the Lord Chancellor gave
an assurance to the House of Lords that the control over emigration
of those children migrated by the voluntary societies would be
similar to that imposed by the Act over the children in local
authority care. The Lord Chancellor responded to an enquiry by
Lord Llewellin: "...I can give assurance that the Home Office
intends to secure that children shall not be emigrated unless
there is absolute satisfaction that proper arrangements have been
made for the care and upbringing of each child..."14. Some
of the voluntary societies lobbied for greater control of voluntary
organisations whom they feared would bring child migration into
disrepute and would prevent, or seriously slow down, the migration
of children at a time when they seemed to be needed most by the
receiving countries and when their own agencies had a reasonable
number of children who might be difficult to place in foster homes.15.
In the event, the Act contained a compromise. By section 33 the
Government agreed that: "The Secretary of State may
by regulations control the making and carrying out by voluntary
organisations of arrangements for the emigration of children."16.
I would argue that the assurances given by the Lord Chancellor
in the House of Lords, the terms of s17 and by implication s33,
are meaningless if they do not demonstrate that the Government
of the time was aware that there was a need to consider the welfare
of each individual child to be migrated from its control to that
of another government.17. We know from government figures that
child migrations to Australia between 1949-54 took place as follows:
| 1947 | 414
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| 1948 | 165
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| 1949 | 129
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| 1950 | 388
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| 1951 | 161
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| 1952 | 323
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| 1953 | 305
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| 1954 | 104
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| Total | 1,989
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18. Thus it can be seen that the peak year for migrations, 1947,
was before the Children Act was even passed, reliance being. placed
(primarily by the Federal Catholic Immigration Committee of Australia
who sent 75 per cent of the children that year), so far as guardianship
and consent was concerned, on the Empire Settlement Acts and the
Children and Young Person's Act 1933, the predecessor of the Children
Act 1948. I touch elsewhere on Arthur Caldwell, Minister for Immigration
and the Inter-Departmental Committee on Child Migration, and the
desire to recommence child migrations as soon as possible. Little
notice appears to have been taken of these children by the Government
in 1946-47.19. In the Children and Young Person's Act 1933 there
was a requirement for consents to the migrations. Even though
children as young as 3 and 4 were migrated unaccompanied by any
family in 1947, it seems unlikely that any real "consent",
in our understanding of the word, was really sought from the child
and it is clear from many communications I have received that
it was generally not sought from the parents either.20. Many
of the Catholic child migrants who approached me as clients came
from homes in Eire and Northern Ireland. So far as I can establish,
their importation to England for the process of migration (whether
embarking at Liverpool or Tilbury) was beyond the legal remit
of the Empire Settlement Acts and the Children Act 1948 (or any
of its predecessors). They were all migrated under the general
umbrella organisation headed by Rev W A Nichol of the Australian
Catholic Immigration Committee in London. I have discovered no
non-Catholic children migrated in a similar way.21. I do not
consider it the place here to relate the full history of these
Catholic migrations. I have, however, considerable text on the
subject and it is clear that the receiving organisations in Australia
were under some pressure to increase numbers.22. Officially,
therefore, children in fact migrated from Eire and Northern Ireland
would not fall under the same legal systems and legislation as
those migrated from England, Wales and Scotland. The Empire Settlement
Acts did not assume payment for children originating outside the
United Kingdom, although it appears that such children were included
in the numbers sent.23. I have found no evidence of enquiry by
the Home Office or anyone else into the national origins of the
children migrated. The assumption was that the voluntary organisations
were migrating children from England, Wales and Scotland, as the
points of embarkation would suggest.24. The Children's Act led
to the creation of the Children's Department at the Home Office
at the end of 1948. At the same time an Advisory Council on Child
Care was set up, chaired initially by Professor Montcrieff, with
membership representing local authorities and the voluntary societies
as well as members of the Home Office, Ministry of Health, Commonwealth
Relations Office and Ministry of Pensions. Searching through the
PRO files "open" to me concerning child migration, a
"Note by the Home Office on Questions for consideration in
connection with the Emigration of Children", or AC8, written
in 1949 (see Appendix 4 for full text) makes sombre reading in
the light of what we now know to have befallen many of the children
migrated.25. Many of the "suggested general principles"
are written with a concern for a child's welfare that reads as
sound, socially aware advice. Short of acceptance that such migrations
were bad for the children per se (and this is never promulgated),
the views anticipate many of the problems that did in fact arise
and the suggestions for avoiding them seem sensible.26. Perhaps
most important, in the context of the current situation, is the
principle that "there should be provision for the independent
examination of cases of children who do not progress satisfactorily
overseas and who appear unlikely to settle successfully; and for
the return to this country of children who, in the opinion
of a designated independent person or body, should return."27.
It is clear that in 1949 it is an implicit, if not explicit,
view of the Home Office that no child would be being migrated
without it being to his great benefit. I quote: "It is essential,
for instance, to consider most carefully the child's relationship
to any member of his family in this country, and to assess how
far he and his relatives understand the permanent nature entailed
by emigration. If a change of heart seems likely, on either side,
at a later date, the strain placed on the child may well be such
that his emigration will prove an unhappy failure."28. As
1949 progresses the paper AC8 is considered by the Council on
many further occasions. Discussions centred on consent, preparation
for emigration, overseas supervision and responsibility, training
of workers, records, and arrangements for unhappy children to
return. [Appendix 5]29. It was intended that the Council would
have an opportunity to consider what matters needed to be provided
for in the regulations for voluntary societies to be made under
s33(1) of the Act. Consider the potential regulations they did,
for several years. In the event, despite the assurances that were
given at the time of the passing of the Children Act, no regulations
were ever made, and voluntary societies continued to arrange
the migrations of unaccompanied children in their care until 1967.30.
This is not to say that the regulations were forgotten about
during that time. In fact, quite to the contrary. Their promulgation
seemed to be quite at the forefront of Home Office policy for
several years—until the mid-1950s when files concerning
the subject "dry up" at the PRO. It may be that further
files—as yet not "open" to me but certainly accessible
through the Home Office—will cast further light on the development
of policy beyond the mid-50s.31. Despite the awareness in the
Home Office and beyond of the need for the regulations to be made,
it appears matters became bogged down in an internal discussion
about the interpretation of what was possible under s33 of the
Act. It cannot be stressed enough, however, that in 1949 the Home
Office and the Advisory Council had no doubts as to what they
ought to be doing with regard to the Regulations. The Council
agreed to the means of control for the voluntary societies in
1949 and to put forward the following means by which the Secretary
of State could exercise control: registration; approval; requirement
for his consent (as per s17) and a power of prohibition if he
was unsatisfied.32. A note from Mr Ross at the Home Office sets
out: " I note...that on the report stage of the Children's
Bill, an assurance was given that the HO intend to secure that
no children are emigrated unless there is an absolute satisfaction
that proper arrangements have been made for the care and upbringing
of each child (see Morrison on the Children Act under s33). It
should also be noted that the Council are advocating as little
disparity as possible between the exercise of control under section
17 and section 33."33. In September 1949 it was decided
that the "Legal Adviser" should be consulted specifically
about the interpretation of s33. A Mr A N Shelley fulfilled that
role in October 1949 and his interpretation was very limiting.
He relies on the case of Blackpool Corporation v Looker.
His view is to limit the ambit of s33 so greatly that the spirit
of the 1947-48 debate is departed from. One wonders, despite his
considerations, whether he had read Herbert Morrison's comments.
It seemed to this reader, that after the interpretation of Mr
Shelley was put back to the Advisory Committee and to the Children's
Department at the Home Office, there was little further administrative
movement (although no doubt about the continuing enthusiasm by
the two bodies) thereafter. The written inter-departmental discussions
about how far the regulations can go continue through the early
1950s.34. As the decade progressed it became clear that the intra/ultra
vires discussions centre on the distinctions of what s33 could
cover. The view reached by the Home Office Legal Department (Peter
Harvey on 18 January 1951) is that "any regulations relating
to the operations of the voluntary bodies is, I think, intra vires...I
think it would be ultra vires to require information as to the
history of the child subsequent to the voluntary organisation's
handing him over to an institution abroad—unless the foreign
institution acts merely as an overseas agent of the voluntary
organisation."35. Other chilling comments surface in the
same memo. For instance, "Regulation 7(ii) seems to contemplate
a child emigrating without the wishes of a parent or guardian.
Surely something must be wrong here?"36. It is a little late
for consideration of Mr Shelley's interpretation now, but Mr Shelley's
views about what was ultra vires were is open to challenge and
his interpretation of what power was granted pursuant to s33 was
very restrictive.37. So far as Australian regulations to act in
loco parentis were concerned it seems clear that their Government's
intention had even preceded British Government consideration of
any post-war resumption of child migration. The 1944-46 Inter-Departmental
Committee on Child Migration recommended that Legal Guardianship
of such child migrants (whom they assumed would be forthcoming
in vast numbers from Europe) be vested in the Minister for the
Interior and private adoption be excluded—essentially in
recognition of the difficulties of locating parents overseas in
war-torn Europe. In 1946, contemporaneously with the expression
of the Immigration Minister's view about the need for migration
from Britain, the Immigration (Guardianship of Children) Act and
supporting statutory instrument, Immigration (Guardianship of
Children) Regulations 1946 subsequently amended (Appendix 6),
were promulgated.38. Although the Minister, by Statutory Instrument,
delegated the major part of his powers under the Act to the governing
bodies in the various States, there seems little doubt that there
was any intention on the part of the British Government to retain
any guardianship role after migration. I could find no discussion
of, and no provision for, the transfer of guardianship of the
migrant children, neither those in voluntary care or under local
authority care, either under the Guardianship of Infants Act 1925
or its amendment by the 1948 Children Act.39. A definition of
guardianship is therefore clear within the definition of the Children
Act (and its predecessor) and also under the Australian Act and
Regulations. It does not seem that the Government took any interest
in defining the position or addressing it, although problems arose
out of its failure to define the position further.40. The suggestions
for Regulations become bogged down in the minutiae of interpretation
of s33 by the Home Office Legal Advisers sensitive to the political
thrust of the compromise made by its creation and to the tensions
between the British and Australian Governments and the voluntary
bodies. No doubt, the interpretations were admirable as an understanding
of the niceties of the politics of the day. Unfortunately, whilst
the wranglings continued and the Regulations were not made, more
and more children were migrated and the laudable concern, apparent
in 1949, for the real welfare, care and consideration of the children,
seemed to be overtaken by bureaucracy and international politics.41.
I have had no access to the Minutes setting up that department
of the Home Office entrusted with looking after the Child Migrants'
welfare, nor the preliminary details given to the Advisory Council
on Child Care. Although of some historical interest, there is
little need. Of real importance is that they were set up in the
spirit of the best of the 1948 Children Act and it is clear from
the documentation surrounding the first few years of their existence
that they fully intended to set up a system as protective of the
children as they could be. This admirable spirit was, however,
stymied by Whitehall, sensitive to political interference and,
in particular, the demands of the voluntary societies themselves.42.
In 1951 Mr John Moss, former member of the Curtis Committee and
Kent County Council Welfare Officer, was deputed to visit Australia
and look at the "Suitability of Australian conditions and
arrangements". It seemed impossible to examine the conditions
and arrangements for choosing the children to make the journey
and knew of the conditions into which they were received without
visiting Australia. His report was published in 1953. His general
thrust was to endorse the continuing migrations on the basis of
satisfactory material comfort. This suited the Home Office in
that it added no undue pressure to speed on Regulations under
s33. It is unfortunate that Mr Moss, for all his good intentions,
was unable to scratch beneath the surface of what he was shown.43.
In 1954 the Inter-departmental Committee on Migration Expenditure
was constituted to consider whether the Agreements entered into
per the Empire Settlement Acts (the Assisted Passage Scheme and
the financial arrangements for supporting the children thus migrated)
should continue.44. Between 1945 and 1954 approximately 2,000
children were migrated to Australia in response to what the Committee
called "the Australian request for stock". The Committee
further considered the Children Act and formative Curtis Report.
In 1951 the World Health Organisation had published a book entitled
"Maternal Care and Mental Health", firmly setting out
the needs of the young child for his development on his affectionate
relationships with adults close to him.45. There was question
then about the methods adopted by the Roman Catholic Church in
relation to their institutional care for children uncared for
by their families as their methods were felt to be somewhat out
of date. A meeting was arranged between the Home Secretary and
the Cardinal of Westminster to discuss the different approaches
and to set out what was now looked for from those responsible
for child care.46. During their deliberations as to whether to
recommend the continuance of financial support to the voluntary
societies, the Committee considered that "if public attention
were to be focused on the topic of emigration of unaccompanied
children, much more stringent selection of cases for settlement
overseas and safeguards for their welfare might be called for."47.
The political difficulties of interfering in the work of the
institutions in this country, but more particularly in Australia,
were also clear to the Committee. The financial and political
implications of continuing financial assistance were weighed up
by the Committee, who believed that "it would not be justifiable
to bring financial assistance to an end without the Societies
being given a full opportunity to bring their practice up to an
approved standard. Further...there is a continuing liability on
the voluntary societies to maintain children who have already
emigrated: and since the United Kingdom Government have been party
to their emigration, some moral responsibility for their welfare
remains with that Government...we are however agreed that it would
be desirable that the pattern of existing migration schemes should
be changed as soon as practicable to conform to the methods of
childcare generally accepted by informed opinion" and they
reiterate the suggestions for regulations held for some years
by the Advisory Council on Childcare.48. The final recommendation,
arrived at by the Commonwealth Relations Office in October 1954,
is of continuing maintenance for those children migrated before
the end of May 1957 when the Empire Settlement Acts were due to
expire and that any extension of the schemes beyond May 1957 should
be for a limited period only and that there would be discussions
initiated with the Australian authorities with regard to the standard
of care being provided.49. Whilst the wrangles over the s33 Regulations
continued, the Moss Report led to comment that "the information
gained revealed a relatively satisfactory state of affairs in
material conditions...The need for regulations has therefore appeared
less urgent; and it is hoped that improved selection and other
arrangements can be secured administratively." Thus wrote
the Home Office in 1953 when giving evidence to the Committee
on Migration Expenditure. In the same report we see the comment..."The
phrase of the Seers Report—'the opportunity if a fresh start
in a new country' would not today be accepted as necessarily describing
the benefit to the 'deprived' child." It was accepted by
1953 that "it is seldom beneficial to the child to be sent
out of this country and away from any relatives whom he may have
and who display some affection for him."50. It was also
recognised that "in some cases it appears to Home Office
inspectors that children psychologically and mentally unsuitable
for such an adventure were being emigrated from voluntary homes".51.
In their assessment, matters of finance and welfare seem to become
inextricably linked and I quote in full from the concluding paragraph:
"It may be felt that in principle the United
Kingdom authorities should retain an interest in the welfare of
a child whom they have caused to be emigrated.
The child is not a free agent and the responsibility
is theirs. It seems that a defect of the present arrangements
is that there is no independent judgment on whether a child is
settling, nor precise arrangements for repatriation if he does
not."52. Again, moral responsibility has been accepted.
The problems for those children who are unhappy in Australia are,
happily, raised once again. However, these anticipated problems
are not acted upon for those children already migrated.53. Still
without any regulations in place, but with genuine concern, a
Second Fact Finding mission, recommended by the Overseas Migration
Board (a Parliamentary Committee at the Commonwealth Relations
Office, made up of representatives from both Houses of those with
an interest in furthering migration) set off in 1955 led by Mr
John Ross of the Home Office. His conclusions were by no means
as salutary as those reached by his predecessor, Mr Moss. The
Overseas Migration Board was displeased and withdrew from association
with the report. Problems arose about who should be shown the
unexpurgated report which criticised particular institutions.
Particular concerns were raised by the Commonwealth Office about
difficulties that criticisms of the Australian institutions would
bring. The matter was of such importance that it was decided to
publish the Ross report at exactly the same time as the report
from the Overseas Migration Board and therefore draw flack from
the press with the latter. This tactic was successful and the
Ross Report received only superficial coverage. Confidential telegrams
sent from the High Commission to the Home Office set out the difficulties
and it is not even possible to tell whether the institutions were
ever directly informed of criticism about them.54. Moral responsibility
the British Government might have, but extreme sensitivity to
Commonwealth relations meant that in the mid-1950s little criticism
could be made of the way child care for British citizens was carried
on abroad.55. As funding gradually dwindled, and the child migrants
of the 1947-54 period grew older and left their institutions,
it seems that problems and concerns about the child migrant were
put to one side. In 1967 the last child migrant left for Australia.
Unfortunately for them, the problems for the child migrants as
they approached adulthood, were in some sense only just beginning.56.
The legal and moral responsibility of both British and Australian
Governments is clearly set out above. Whilst it has been possible
to bring legal claims in relation to sexual and physical abuse
suffered in the Catholic Western Australian institutions, the
child migrants as a group have received no recognition from the
British Government. This is their due, along with a series of
measures to ensure the last years of their lives are made easier
than the first half century.
20 February 1998
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