“When is a Parent not a Parent?” Custody and Illegitimacy in England, 1860–1930

In 1914, the Liverpool Society for the Prevention of Cruelty to Children prosecuted Gladys Owens for the neglect of her children with Alfred Jones, the man with whom she had lived for years. Gladys received a two-year sentence for neglect, but Alfred’s defense barrister claimed that he could not be prosecuted. Illegitimate children had no legal fathers; thus, Jones had never had “care and custody” of them as required by the Children’s Act of 1908. The prosecution countered that this was a misreading of the act, which referred to those providing food and shelter for children and not custody in the legal sense. At the King’s Bench, the judges agreed that “the woman being at law the custodian of the children did not prevent the man from having lawful control,” and they ordered a retrial. Notably, Justice Coleridge began his delivery of the decision with this short catechism: “When is a parent not a parent? When he is the parent of an illegitimate child.”¹ This remark comments on two central dilemmas built into the English law of illegitimacy: how did a patriarchal law system deal with “fatherless” children? And how did the law recognize “guardians” of children when the term encompassed foster parents, institutions, and adopters? This essay will begin to answer these questions by analyzing fifty-three custody disputes over illegitimate children between 1860 and 1930 in England. Such analysis highlights both the dilemmas and the opportunities for creative solutions that illegitimacy posed for the courts.

Historians of illegitimacy often use legal sources, but primarily to highlight illegitimate children as victims. Most frequently, historians center on infanticide trials and the courts’ lenient treatment of unwed mothers who killed their babies.² Others discuss the demographics of illegitimacy by studying poor law records, or illegitimacy and divorce in the upper classes.³ On the one hand, these histories make clear that when a child had unmarried parents, he or she became especially vulnerable to cruelty, neglect, or desertion. On the other hand, given the recorded illegitimacy rate, which varied from four to six percent of all births over this period, the percentage of illegitimate children murdered or left in workhouses was small, and the official rate was almost certainly an understatement. Illegitimate mortality rates were often twice as high as those of legitimate infants, but even in the worst places, such as Manchester, two-thirds of these children survived infancy (and the majority of deaths were from natural causes). In addition, though unwed mothers gave birth in the work-house, most did not stay long. As late as 1906, for instance, the total number of children getting workhouse relief was less than sixty thousand, and at least half of these were legitimate. Community studies and autobiographies confirm the demographic data. Barry Reay, in his study of Kent, found that a third of the households in Hernhill in 1851 had an illegitimate member or someone with an illegitimate child in his/her immediate family. In Reay’s words, “illegitimacy should be seen as part of the normal sexual culture of the hamlets of the past.”⁴ In other words, the average working-class illegitimate child lived with maternal kin. Nor were middle- and upper-class families unwilling to care for such children; civil court cases show that parents left substantial property to their illegitimate children.⁵ Children of unwed parents in all classes, then, were the focus of love and care from a variety of people, and these conflicting claims occasionally turned into open disputes over custody.

Most work on custody in the nineteenth century has centered on married women’s disabilities. English common law favored the father in the control of legitimate children, giving them custody even if they had committed marital wrongs. Fathers could also leave guardianship of the children to anyone they chose. Between 1839 and 1882, Parliament modified the law, but in limited ways. Mothers gained the right to keep younger children (after 1839), but children over seven continued to belong to their fathers. In addition, Danaya Wright’s work has shown...