ANNEX A
CHILD MIGRATION — LEGISLATIVE PROVISIONS
NINETEENTH CENTURY
PROVISIONS
Poor Law Amendment Act 1834 (Ch 76, 4 and 5 William
IV) Section LXII enabled rate payers to
set up a fund to pay for the emigration of poor persons settled
in the parish who were willing to emigrate.
Poor Law Union Charges Amendment Act 1849 (12
and 13 Victoria, Ch 103) Section XX authorised
the Board of Guardians of any Poor Law Union to spend up to £10
per person on the emigration of poor persons settled in the parish.
Poor Law Amendment Act 1850 (13 and 14 Victoria
Chapter 101) Section IV extended the provisions
of the above statutes to enable the emigration of poor orphans
and deserted children under the age of 16 at public expense. There
was a proviso that no emigration of an orphan or deserted child
should take place without the consent of the orphan or deserted
child given before the justices. A certificate of consent signed
by two of the justices had to be presented to the Poor Law Board.Repealed
by the Poor Law Act 1927.
Prevention of Cruelty of Children Act 1889 Section
5 provided for the committal of a child into the care of a fit
person or relative where his parent had been committed for trial
or convicted of one of specified offences, or bound over to keep
the peace. Whilst the order was in force the fit person had the
powers of a parent over the child: presumably these would have
extended to emigration.The Act was repealed by the 1894 Act (below).
Custody of Children Act 1891 The
1891 Act dealt with applications by parents to the High Court
for return of a child, who was being brought up by another person
or the poor law guardians, and enabled the court not to order
the child's return if the parent had abandoned or deserted the
child, or allowed him to be brought up at another person's expense
for so long that the court was satisfied that the parent had been
unmindful of his duties, unless the court was satisfied that the
parent was a fit person to have custody. It was not repealed until
the 1989 Children Act, but must have fallen into disuse a long
time before that. It does not confer any rights on the person
caring for the child, or deal with emigration.
Prevention of Cruelty to Children Act 1904 Section
6 provided for committal to the care or a relative or other fit
person named by the court in similar terms to the 1889 Act, save
that by section 6(5) the fit person had no authority to arrange
for the child's emigration. This required the consent of the Secretary
of State who could give it if emigration appeared to him to be
for the benefit of the child.Repealed by the 1904 Act (below).
Reformatory and Industrial Schools Act 1891 (54
and 55 Victoria Ch 23) By Section 1, the
managers of a certified reformatory or industrial school were
enabled, with the consent of a youthful offender or child detained
or out on licence, to apprentice him or to dispose of him into
trade or by emigration, such apprenticing or disposition to be
as valid as if the managers were his parents. Any emigration required
the consent of the Secretary of State as well as of the child.
Poor Removal Acts 1845-1900 These
Acts provided for the removal from England of poor persons born
in another part of the United Kingdom who were not settled in
England but were receiving parish relief. Most concerned removal
to Ireland.
TWENTIETH CENTURY
PROVISIONS
Prevention of Cruelty to Children Act 1904 Section
6(1) provided for the committal of a child to the care or a relative
or fit person including any society or body corporate established
for the reception of poor children or the prevention of cruelty
to children named by the court, where the parent had been convicted
of or committed for trial for certain offences, or bound over.
By section 6(5) the child's emigration required the consent of
the Secretary of State as in the 1894 Act.Repealed by the 1908
Act (below).
Children Act 1908 Section
21 dealt with the committal to the care of a relative or other
fit person of a child under the age of 16. Section 21(6) provided
for the Secretary of State in any case where it appeared to him
to be of benefit to a child or young person who had been committed
to care, to arrange for the young person's emigration. The fit
person was not empowered to arrange for emigration.Section 70
provided for the apprenticeship or disposal by emigration of any
youthful offender or child detained or out on licence from a certified
school by the managers as if they were his parents, provided that
the consent of Secretary of State was required for disposal by
emigration. A certified school a reformatory school for industrial
training of young offenders or an industrial school for the industrial
training of children found begging etc.Repealed by the Children
and Young Persons Act 1932 (which was itself repealed by the 1933
Act).
The Empire Settlement Acts 1922 The
Empire Settlement Acts 1922 provided a mechanism for the use of
public funds to subsidise the cost of emigration to the colonies.
Section 1(1) stated that:"It shall be lawful for the Secretary
of State, in association with the government of any part of His
Majesty's Dominions, or with public authorities or public or private
organisations either in the United Kingdom or in any part of such
Dominions, to formulate and co-operate in carrying out agreed
schemes for affording joint assistance to suitable persons in
the United Kingdom who intend to settle in any part of His Majesty's
Overseas Dominions."The Act was basically a finance measure
and did not specifically empower voluntary organisations (or anyone
else) to send children in their care abroad. However, if the Secretary
of State agreed that a child migration scheme fell within the
terms of the Act, whether set up by a voluntary organisation or
any other body, public funding may have been provided to subsidise
the cost of the scheme.After 1922, a series of Acts extended the
period for which the authorisation contained in section 1(1) of
the 1922 Act was valid. The last of these Acts was the Commonwealth
Settlement Act 1967, which provided that the liability of the
Secretary of State to make payments in respect of schemes agreed
under the 1922 Act would last until 31 May 1972. The 1922 Act,
the Empire Settlement Act 1937 and the 1967 Act are properly cited
as the Commonwealth Settlement Acts 1922 to 1967.
Poor Law Act 1927 Section
102 authorised a Board of guardians with the consent of the Minister
and in compliance with such rules and regulations as he may prescribe
to procure or assist in procuring the emigration of any orphan
or deserted child under the age of 16 who was chargeable to the
Poor Law Union.Section 102 provided that a Board of Guardians
should not procure the emigration of an orphan or deserted child
unless the child had given its consent before a petty sessional
court and the certificate of consent signed by two of the justices
present had been transmitted to the Minister.Repealed by the 1930
Act (below).
Poor Law Act 1930 Section
68 enabled the County or Borough Council with the consent of the
Minister and in compliance with such rules, orders and regulations
as he may prescribe to procure or assist in procuring the emigration
of orphaned or deserted children under the age of 16 chargeable
to the county or county borough. It was provided that the Council
should not procure the emigration of an orphan or deserted child
unless the child had given its consent before a petty sessional
court and a certificate of consent signed by two of the justices
present had been transmitted to the Minister.The Poor Law Act
was repealed by the National Assistance Act 1948.
Children and Young Persons Act 1933 Section
84(5) gave the Secretary of State power to authorise arrangements
for the emigration of any child in the care of a fit person, if
it appeared to him that it would be for the benefit of the child.
The emigration of a child in care could not take place without
the consent of the Secretary of State. The Secretary of State
was required to be satisfied that the child consented and that
his parents had been consulted, or that it was not practicable
for the parents to be consulted.A fit person refers to the power
of the juvenile court to commit a child to the care of a fit person,
whether a relative or not, who was willing to undertake the care
of the child, where the juvenile court was satisfied that the
child was in need of care or protection. As an alternative a child
could be sent to an approved school.By paragraph 7 schedule 4
the managers of an approved school had the power to arrange for
the emigration of a child in their care with the written consent
of both the child and Secretary of State. The managers were also
required to consult with the parents in any case where it was
practicable to do so.Repealed by the Children and Young Persons
Act 1969.
Children Act 1948 Section
1 imposed a duty on local authorities to receive abandoned and
orphaned children into their care.Section 17 enabled a local authority
with the consent of the Secretary of State to procure or assist
in procuring the emigration of any child in their care.The Secretary
of State was not to give his consent unless he was satisfied that
emigration would benefit the child, and that suitable arrangements
had been made or would be made for the child's reception and welfare
in the country to which he was going, and that the parent or guardian
of the child had been consulted or it was not practicable to consult
them and that the child consented Section 17(2). There was provision
for the emigration of a child who was too young to express a proper
opinion on the matter with the consent of the Secretary of State
if the child was to emigrate with or to join a parent, guardian
or relative.Section 33(1) The Secretary of State was empowered
to make regulations to control the making and carrying out by
voluntary organisations of arrangements for child emigration.Section
33(2) provided that any such regulations may require information
to be given to the Secretary of State about the organisation and
for enabling the Secretary of State to be satisfied that suitable
arrangements had been or will be made for children's reception
and welfare to the country to which they are going.
Children and Young Persons Act 1969 Section
24 dealt with the duty of a local authority towards children committed
into its care following criminal proceedings. By Section 24(7)
the local authority had the same functions as conferred on it
in relation to other children by Part II of the Children Act 1948.
This included the power to arrange for emigration under Section
17 of that Act.
Child Care Act 1980 This
replaced and updated the 1948 Act.Section 24 empowered a local
authority with the consent of the Secretary of State to procure
or assist in procuring the emigration of any child in their care.
By Section 24(2) the Secretary of State was only to be given his
consent if satisfied that emigration would benefit the child and
that suitable arrangements had been or would be made for the child's
reception, that the parents or guardians of the child had been
consulted or it was not practicable to consult them, and that
the child consented to emigration. The Secretary of State could
consent to the emigration of a child who was too young to form
or express an opinion on the matter if the child was emigrate
in company with or to join a parent, guardian or relative.Section
62 reiterated the power to make regulations to control the activities
of voluntary organisations first set out in Section 33 of the
1948 Act.By Section 62(3) it became an offence to fail to comply
with any such regulations.The Child Care Act was repealed by the
Children Act 1989.
The Emigration of Children (Arrangements by Voluntary
Organisations) Regulations 1982 (SI 1982/13) These
regulations set out the requirements to be fulfilled by voluntary
organisations arranging the emigration of children, and mirror
the provisions for local authorities set out in Section 24 Child
Care Act 1980.These regulations ceased to have effect following
the coming into force of the Children Act 1989.
Children Act 1989 Schedule
2 paragraph 19 sets out the provisions where a child in the care
of a local authority is to live abroad. The leave of the Court
and the consent of every person with parental responsibility are
required in every such case.A voluntary organisation may not place
a child whose placement it is responsible outside the British
Islands (Foster Placement (Children) Regulations 1991, Art 10
(1) as amended SI 1991 no 910)
BACKGROUND TO BRITISH NATIONALITY LAW
THE BRITISH
NATIONALITY AND
STATUS OF
ALIENS ACT
1914 (BNSAA 1994) 1. This country had no nationality law until
the coming into force on 1 January 1915 of the BNSAA 1914. The
Act conferred the common status of British Subject upon those
persons who had specified connections with the Crown's dominions.
The status of British Subject implied allegiance to the Crown.
2. In general terms that status was held by those
people born within the Crown's dominions or naturalised there
and by the first generation born elsewhere (of legitimate descent
in the male line ONLY). The status could be lost by naturalisation
in a foreign state or by making a declaration of Alienage. A British
woman marrying an alien lost her British Subject status automatically
on marriage before 1933 whether or not she acquired her husband's
citizenship. From that date onwards she lost it only if she acquired
the nationality of her husband. An alien women who married a British
Subject automatically became a British Subject on that marriage.
The nationality of minor children was tied to that of their father
or widowed mother and they gained or lost British Subject status
accordingly.
THE BRITISH
NATIONALITY ACT
1948 (BNA 48)
3. At the Commonwealth Conference in 1947 it was
agreed that each of the self-governing dominions (Canada, Australia,
New Zealand, Union of South Africa, Newfoundland, India, Pakistan,
Southern Rhodesia and Ceylon) would introduce separate citizenship
for those persons who belonged to each country but all would continue
to share the common status of British Subject or Commonwealth
Citizen—both terms to have the same meaning. The UK legislation,
BNA 48 created the status of British Subject, citizen of the United
Kingdom and Colonies (BSCUKC) for all those whose connection was
with the UK itself or with a place which on 1 January 1948 was
still a colony. This did NOT include those self-governing countries
listed above.
4. This Act provided for the acquisition of BSCUKC
status by those born or naturalised in the UK or an existing colony
and by the first generation born abroad. There was no longer any
restriction on the holding of dual nationality and persons acquiring
citizenship of a foreign state did not automatically lose British
nationality as a result. Adult aliens could acquire BSCUKC status
by naturalisation but Commonwealth citizens and minor children
were eligible in certain circumstances to acquire it by registration.
Women who married CUKC husbands after 1 January 1949 had an entitlement
to be registered as CUKCs themselves subject only to the production
of evidence of a valid marriage.
5. The Act also provided for two categories of persons
to remain "British Subjects" only (ie not CUKCs). These
were persons connected with the Republic of Ireland and persons
connected with one of the self-governing dominions which had not
yet enacted its own citizenship law. From 1951 onwards the only
persons remaining in the latter category were those connected
with India or Pakistan.
6. Over the years most of the remaining colonies
acquired independence within the Commonwealth. Normally those
CUKCs who acquired citizenship of the newly independent country
ceased to be CUKCs on independence day unless they possessed specified
connections with the UK itself or with a place which remained
a colony.
THE BRITISH
NATIONALITY ACT
1981 (BNA 81)
7. BNA 81 which came into force on 1 January 1983
replaced citizenship of the UK and colonies with three separate
citizenship:
(i) BRITISH CITIZENSHIP: for those persons
who had the right of abode in the UK as defined in Section 2 of
the Immigration Act 1971.
(ii) BRITISH DEPENDENT TERRITORIES CITIZEN:
for those connected by birth or descent with a dependent territory.
(iii) BRITISH OVERSEAS CITIZEN: for those
who did not belong to categories (i) or (ii) above.The term "Commonwealth
Citizen" no longer has the same meaning as "British
Subject" although persons connected with the Republic of
Ireland, India or Pakistan who were British Subjects under the
1948 Act (see para 5 above) retained that status under the 1981
Act.
8. Women, whether Commonwealth or Foreign, no longer
have an entitlement to registration but spouses (of either sex)
may apply for naturalisation after three years normal residence
in the UK. Citizenship may now be transmitted through either the
male or female line except that in the case of an illegitimate
child it can be acquired only through the mother.
9. In general, since 1 January 1983, it has been
possible to acquire British Citizenship automatically:
(i) by birth in the UK to a parent who is either
a British Citizen or settled here under immigration law;
(ii) by adoption in the UK by a British Citizenship
parent;
(iii) by birth outside the UK to a parent who
is a British Citizen "otherwise than by descent"; and
(iv) by birth outside the UK to a British Citizen
parent in Crown (designated) or European community service.
10. There are preserved entitlements to registration
for a limited period only in the case of certain married women
and minor children. Special rules also apply to the acquisition
of British Citizenship by BDTCs connected with Gibraltar and the
Falkland Islands.
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