On Judicial Agency and the Best Interests Test

DANAYA C. WRIGHT

I am grateful to Eileen Spring and Michael Grossberg for their thoughtful comments on a study that has occupied my life for the past five years, and which has finally been produced in a more detailed form as my dissertation. 1 Unfortunately, many of their comments point to gaps, in the best interests standard and comparisons with U.S. law for instance, that are taken up in the longer study. But if I could put my entire dissertation into a single sentence, it would be that a history of English custody law reveals profoundly different commitments on the part of judges to protecting mother's rights and to recognizing some form of a best interests test as social conditions changed, and that the patriarchal moorings of custody law remain with us today as we try to solve the deeply problematic issues raised for a legal system that still pits parental rights against children's welfare. Grossberg and Spring both point to the issue of judicial agency that I grapple with in my article and I will briefly address a few points on that topic. Then, rather than address their comments individually, I would prefer to suggest some of the conclusions I draw in the larger study and make connections to what is presented here.	1
Grossberg and Spring have both criticized my strong implications that many of the English judges can be characterized as either patriarchal and backward or progressive and liberal. To some extent, I agree. This is an issue that has particularly plagued my analysis of the materials of this period. I certainly believe that the judge who admits he is forging a new trail by interpreting prior case law or statutory language in revolutionary ways has engaged in what is derisively termed judicial activism, though I generally reserve judgment of whether such activism is legitimate or appropriate until further consideration of the type of text being interpreted and the ends being sought. But I also believe that the judge who throws his hands in the air and claims that he is bound by precedent to decide in a manner that, had it been a case of first impression, he would not have dreamed of doing, is also engaging in judicial activism—a kind of activism that puts a halt to change, that resists the important feature of the common law, its recognition of the importance of tempora mutantur. To speak of judicial agency, it seems to me, means to affirm the position that either all judges do it or none do. Of course, in England, judges might view their roles differently perhaps than they do in the United States, which might seem to justify Spring's claim that "[I]n reality ... [Eldon] had no choice." 2 But such a comment overlooks the fact that Eldon himself was a staunchly Tory politician, a man who, as attorney general, supported the suspension of the Habeas Corpus Act on numerous occasions, resisted Catholic Emancipation and abolition of the slave trade at every opportunity, prosecuted a series of political activists for sedition over a period of many years (all but one of whom were acquitted), prepared the Treasonable Attempts and Seditious Meetings Bill, and, most notably, acted as royal go-between in the dispute between George III and his son over the custody and education of the king's granddaughter, Princess Charlotte. In December 1804, Eldon penned a memorandum in which he opined that "nothing could be so mischievous as litigating" 3 the question of the Royal Marriage Act, the act put in place in response to the Grand Opinion of 1717. Despite Lord Thurlow's belief that a current suit would result in a different outcome from the 1717 Grand Opinion, Eldon was less optimistic and suggested that the Prince of Wales just make up to his father and not put the judges to the test. As that is indeed what occurred, we have no official statement of Eldon, as chancellor, on the Grand Opinion, except that his memoirs are full of statements expressing his antipathy to having been put in the position of mediating between father and grandfather in the first place. Although the Grand Opinion might seem like an odd place to begin this study, it seems too coincidental that an almost identical dispute was occupying the chancellor's attention during the months he decided the De Manneville case.	2
Eldon also had a rather checkered past when it came to issues of marriage and family stability. It is well known that he eloped with his wife, a modest heiress, against the wishes of both sets of parents and in contravention of Lord Hardwicke's Marriage Act. He also found himself, in his first speech as chancellor in the House of Lords, objecting to a divorce bill brought by a wife on the grounds of her husband's adultery, which, being particularly egregious in that case, he supported, but about which he "retain[ed] his opinion, that, in general, the application of a wife for a divorce, on the ground of her husband's adultery, ought, for the sake of securing the morals of the public, to be resisted and refused." 4 Eldon's views on the sanctity of marriage and the natural subordination of wife to husband clearly fit within his high Tory politics.	3
None of this is to say that judges decide cases only upon the basis of their personal views and without attention to precedents. It is only to point out that they are no less embedded in their times than lawyers, litigants, and historians. Relationships between political beliefs, life experiences, and judicial decision making are, of course, complex—a complexity with which all legal historians must grapple. Both commentators point out ways in which historians, as judges of the evidence, ignore that complexity at their peril.	4
In the remainder of this response I will briefly summarize the conclusions I draw in my larger study, conclusions more thoroughly developed there than is possible here. Thereby I hope I can address some of the commentators' concerns while also revealing my own emphasis on the way the husband/wife relationship was influenced by custody law, rather than how custody law itself was formed and filled by changing conceptions of child welfare over time.	5
In my dissertation, I have looked closely at the few years leading up to the 1839 Custody of Infants Act, the arguments of reformers like Caroline Norton, and the debates in Parliament and the periodical press in an attempt to locate the types of arguments deployed on all sides. By 1839 times had indeed changed. Jacobin sentiments seemed less threatening while important Parliamentary reform had occurred in a number of venues in the first half of the 1830s. By 1839, the legislative reform did not seem out of place, especially in light of the compelling Greenhill case. But an analysis of the cases between 1839 and 1857 reveals substantial disagreement over the extent of the legislative change among judges. Did it enlarge women's rights to petition for and acquire custody, or did it simply broaden the equity court's jurisdiction over children by removing the property bar? Judges felt themselves in a dreadful bind, given the power to decide custody under some sort of undefined best interests test while still subject to coverture restrictions made unworkable by the separation of ecclesiastical jurisdiction over marriage and divorce, legal jurisdiction over property, and equity jurisdiction over custody.	6
Ironically, the result of this awkward position caught between the three different jurisdictions was paralysis. Judges granted mothers custody only in cases where paternal acts met the pre-1839 forfeiture standard; they continued to look to ecclesiastical determinations of marital status as a prerequisite for making custody decisions. Hence, the 1839 act did not change the substantive nature of the custody law nor grant mothers any new rights; it merely heightened the tension between the common law rule of paternal rights and the growing reality of increasing divorce and single-mother parenting. I suggest that the continuing rhetoric of domesticity and maternal duties, coupled with the nightmare of three-part jurisdiction over family issues, led reformers once again to Parliament where the divorce and matrimonial causes court was created and "family law" as we know it was born. 5 Moreover, it was exactly these custody cases—pitting mothers against fathers, child welfare against legal rights, and threatening the breakdown of coverture while solidifying a patriarchal substance to the best interests standard—that resulted in the creation of a new court and a set of doctrines unique to the family and the problems raised by claims of maternal rights.	7
But while many historians mark 1857 as the turning point in women's reforms, I continue to be skeptical. In analyzing the post-1857 cases, we see a striking phenomenon. The divorce court judges were initially willing to grant custody to mothers who suffered at the hands of violent, greedy, or profligate husbands and came up with a marital fault rule. But within just a couple of years, the equity courts, which sat in review of the divorce court decisions, quickly put a halt to the granting of custody to mothers except on grounds remarkably similar to the pre-1839 forfeiture standard—extreme unfitness. After numerous cases were reversed on appeal, mothers got custody only in the rare, extreme instance. In 1863 a judge ordinary would explain, as he denied custody to a mother of her twelve-year-old handicapped son, that "where the wife is the innocent party, I consider that she is entitled to the solace of having the custody of her children. But in deciding such questions, I have been in the habit of considering only what are the rights of the parents. Here Mrs. Cooke asks for the custody of the child, not as a solace to herself, but for the welfare of the child. That is a ground which would, I think, involve the Court in considerations foreign to it." 6 It is not that the judges had varying conceptions of child welfare that is troubling, but rather that a welfare consideration was entirely foreign to the court.	8
What did characterize the mid- to late nineteenth century, and the first three decades of the fledgling family law, was the reliance judges placed on marital fault as a proxy for determining parental rights. After creation of the divorce court, the custody law that developed in the latter half of the century used marital fault to determine parental rights. Thus, while De Manneville based parental rights on marital status and the doctrine of coverture, the cases after 1857 based parental rights on marital fault. It was this shift, I suggest, that kept a welfare standard from evolving. Notably, the women reformers, from Mary Wollstonecraft in the late eighteenth century through Caroline Norton and to Margaret Oliphant in the late nineteenth century, all advocated a separation of parental and marital duties. They bewailed the fact that unruly husbands might force wives out of their homes and that they would thereby lose access to their children as well. What they wanted was to be able to fulfill their duties as a parent even if they were prevented from doing so as a wife. By using fault to determine custody, the new unified family law could avoid engaging in any substantive analysis of child welfare. This, I believe, put off the welfare analysis until it was legislated in 1925.	9
The unification of marital performance with parental rights has been applauded by historians and scholars as giving women greater freedom and control over their children. Here again I must disagree with the traditional interpretation. Although more mothers began to get custody by the last few decades of the nineteenth century, they did so at a cost of adopting traditional domestic roles. Hence, Annie Besant, who separated from her husband and was an atheist and author of a banned book on birth control, lost custody of her daughter despite a private separation agreement granting her custody. 7 Similarly, in the 1880s, a judge would remove five children from a mother who had obtained a separation from her husband on the grounds of cruelty. Lord Ardmillan explained that the "rule, as a general rule, is settled; and notwithstanding his conduct to the mother, we have no reason to dread injury to the health or morals of the child. To leave his wife with the defender were to subject him to an influence exciting and tempting him to violence towards her. To leave his little child in his house is, or may well be, to introduce a soothing influence to cheer the darkness and mitigate the bitterness of his lot, and bring out the better part of his nature." 8 No concern is given for cheering the darkness and mitigating the bitterness of the mother's lot, who was forced to jump out a window to escape her husband's violence, who was cursed and assaulted, and who was beaten insensible by her lord and master. Women who left were still often seen as the transgressors and therefore unworthy of receiving custody.	10
I am grateful to Eileen Spring and Michael Grossberg for articulating better than I have been able to the importance of historicizing these legal doctrines within their contemporary social context. Although my focus has been principally on the question of mother's rights and I have declined to address the changing substantive content of the best interests standard, Grossberg's comments remind me of the importance of analyzing the values and motives of the father's rights advocates. But even as I say this, I am reminded of the shrill, almost hysterical objections raised by certain M.P.s and pamphleteers who called the Custody of Infants Act the Robbery of Fathers Bill and likened women to caged beasts who, if not threatened by the loss of their children, would leave their homes immediately and run into licentious wickedness and folly. 9	11
This is not to say that Lord Eldon and his followers did not have a legitimate political position from which to deny mothers any rights of access or custody of their children. In many respects, the proponents of coverture approved of the legal neatness of marital unity and harmony. But legal fictions, like the fictions of coverture and royal authority, are fictions precisely because they cannot adequately represent reality. As Hendrick Hartog reminds us, the merging of the husband and wife's identities under coverture is incompatible with a belief that although married, one "always remains an individual." 10 It is how the denial of maternal rights could and could not keep the beasts caged that has driven this study.	12
Notes       1. Danaya C. Wright, "From Feudalism to Family Law: Inter-Spousal Custody Disputes and the Repudiation of Mother's Rights" (Ph.D. diss., Johns Hopkins University, 1998).       2. Eileen Spring, "Child Custody and the Decline in Women's Rights," Law and History Review 17 (1999): 317.       3. Horace Twiss, The Life of Lord Chancellor Eldon (London: Murray, 1844), 1: 477.       4. Ibid., 383.       5. Matrimonial Causes Act (1857).       6. Cooke v. Cooke, 32 LJPMA 187, 191 (1863).       7. Re Besant, 48 L.J. Ch. 497, 11 Ch.D. 508 (1878).       8. Session Cases, 8 M 821 cited in "The Law in Relation to Women," The Westminster Review 128 (1887): 705.       9. See Edwin Hill Handley, "Custody of Infants Bill," British and Foreign Review 7 (1838): 281. "What madness then and atrocious wickedness it would be to take away, not merely the least, not merely one out of a number, but the greatest, the last, the only remaining bar against the outbreak of ever-tempting lusts, and then hope that they will afterwards restrain themselves on account of your impotent good wishes, and unheeded sermons, and vain regrets! As well might you expect, when you have unbarred the cages of so many wild beasts, that they will remain quietly in them at the wish of their keepers!"       10. Hendrik Hartog, "Marital Exits and Marital Expectations in Nineteenth-Century America," Georgetown Law Journal 80 (1991): 97.

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