There are several reasons why the connection between the Poor Law and the Adoption of Children Act 1926 has received limited attention in the literature about the history of adoption in England. One is that Poor Law adoptions only extinguished parental rights of custody but did not create new parental rights for adoptive parents. This is an important distinction. Poor Law adoptions transferred parental rights to the Poor Law guardians but it was not until the 1926 Act that new rights were created. Poor Law adoptions should thus be understood as an important subspecies of adoption before the introduction of modern adoption in 1926. Another reason is that Poor Law adoption powers were not repealed until 1991 when the modern adoption framework was introduced. Schedule 15 of the Children Act 1989 removed the power of the state to deny a parent custody of their child based on financial maintenance. These issues have meant that Poor Law adoptions are often perceived as a distinct relic of Victorian legislation rather than a classist legacy which survived well into the twentieth century.
Although Poor Law adoption has received some critical attention in the scholarship on the history of adoption in England,Footnote 1 its connection with the 1926 Act has not attracted the same attention. This is probably because most histories situate Poor Law adoption in England within the moral reformation of working-class children or the development of public childcare policy. Jenny Keating's work is an important exception to this trend. Keating provides a detailed overview of the Poor Law system as a means of de facto adoption and explains its fundamental differences with de jure adoption.Footnote 2 Keating acknowledges that Poor Law adoption contributed to the development of de jure adoption but does not explore how the law was shaped by this relationship. This article argues that de facto adoption under the Poor Law directly impacted de jure adoption under the 1926 Act by continuing to allow the courts to dispense with parental consent where a parent failed to financially maintain the child. It provides evidence that children were typically adopted under the Poor Law when their parents could not afford to maintain them and then explores how notions of child maintenance became a basis for dispensing with parental consent for adoption orders under the 1926 Act. Questions surrounding the relationship between punitive Poor Law policies and the development of modern adoption are important because the power to dispense with parental consent based on failure to maintain remained part of the adoption framework until 1959.Footnote 3
This article does not dispute that moral reformation efforts and childcare policy during the late nineteenth century played an important role in the development of adoption law. Rather, it asserts that these factors do not tell the whole story. The 1926 Act provided the first legal framework for all the rights, duties, obligations, and liabilities for a child to be created in favor of an adopted parent and these orders could not be repealed. It is widely accepted that de facto adoptions took place before the 1926 Act and that Poor Law adoption was an important subspecies of this practice since the late nineteenth century.Footnote 4 The Poor Law provided that a parent could lose the common law right to the custody of their child under certain conditions. Once a parent lost this right, they had no control over where the child lived or how they were raised. Initially, only orphan or deserted children could be adopted in this way because the guardians needed legal authority to make decisions about their upbringing. Within ten years the law was expanded to include children whose parents were deemed unfit, but unfitness was never defined by the statute.Footnote 5 This left considerably ambiguity around what unfitness meant in practice, which was exacerbated by the fact the Poor Law guardians were responsible for passing orders, not the courts.
The Poor Laws were a collection of legislation which governed how social welfare was administered in Victorian England. It was underpinned by a deterrence policy to reduce the taxpayer's burden, wherever possible. This meant most people who required support were forced to enter institutions such as workhouses, Poor Law schools, infirmaries, or asylums to receive basic assistance. These institutions were managed in a way that life inside the institution was worse than the life of the lowest independent laborer so that people would not seek help from the state.Footnote 6 Boards of guardians were responsible for administering the system. The guardians implemented policy decisions including the task of differentiating the “deserving poor” who deserved to enter an institution from the “undeserving poor” who might be worth sparing the horrors of institutionalization.Footnote 7 The guardians were also responsible for the day-to-day running of institutions in their locality and reporting biannually to the Local Government Board, the national supervisory body for welfare administration.
The turn of the twentieth century was a period of significant social anxiety particularly surrounding questions about the role of destitute children in the future of the Empire. When Poor Law administrators debated this question in 1870, one of them lamented, “We cannot hang them, as we did then, at the rate of 30,000 a year.”Footnote 8 Something would have to be done and yet, policy remained largely ambivalent toward the care of destitute children until the latter part of the nineteenth century when reports began to emerge that substantial numbers of soldiers in the Boer Wars were too malnourished to fight. Recruitment for the Imperial Army fell into steep decline and the middle classes became concerned that patriotism in the working classes was waning which raised serious concerns about the security of the realm.Footnote 9 To tackle this, the government changed its policy for the care of Poor Law children from one of deterrence to one of reform. New childcare policies required the guardians to instill children with habits of usefulness, industry, and patriotism in the hopes they would become a desirable working-class citizenry who could make a meaningful contribution to the Empire.
Poor Law adoption played an important role in this agenda because it was the first legal mechanism that allowed the guardians to assume parental rights over children to pursue this objective. Intervention was justified on the basis that parents had failed in their parental duties in some way and thus the state had acquired a legitimate interest in the children's upbringing.Footnote 10 There is evidence from nineteenth-century case law that the courts resisted arguments that child maintenance failures could justify refusing a writ of habeas corpus by a parent seeking custody.Footnote 11 However, historians have persuasively argued that despite this judicial rhetoric, there was clearly a connection between financial provision and the decision to award custody to an adoptive parent before de jure adoption was introduced.Footnote 12 These decisions were usually justified by evolving notions of the best interests of the child which the courts implicitly linked to financial support.
This article argues the law governing de facto adoption under the Poor Law helped shape the law that initiated de jure adoption under the 1926 Act. The first section explores the justifications for introducing Poor Law adoption and the role that distrust toward working-class families played in shaping the law. The second explores primary sources concerning the administration of Poor Law to investigate what unfitness meant in practice. The primary sources used for this investigation provided an unexpected insight into the means beyond the law that were used to intentionally disrupt parent–child relationships for parents who were deemed unfit. The final section explores how de facto adoption under the Poor Law shaped powers to dispense with parental consent for de jure adoption under the 1926 Act and beyond.Footnote 13
Justifying Poor Law Adoption
The 1926 Act was passed at a time when children's charities were facilitating hundreds of de facto adoptions each year. This has led to the introduction of de jure adoption as being regarded as a much-needed regulation of these activities; which has meant impetus for reform is often attributed to a growing problem of illegitimacy after the war and the efforts of an unrestrained children's movement in trying to solve that problem.Footnote 14 Although it is undoubtedly true that the practices of the children's philanthropic sector during this period were in need of regulation, and this played an important role in reform, such controls did not become law until 1939.Footnote 15 The perception that the 1926 Act was largely a sluggish response to these issues allows for questions about the influence of de facto adoption under the Poor Law adoption framework to be ignored.
There is extensive evidence that other forms of de facto adoption took place before Poor Law adoptions were introduced. Some were very public while others were shrouded in secrecy, but none of them removed the legal responsibility for biological parents to financially maintain their children, nor their common law right to issue a writ of habeas corpus for custody. The highest profile de facto adoption was most likely that of William Austin by Princess Caroline, the estranged wife of the Prince of Wales, in 1802. This led to so many rumors that it prompted the “Delicate Investigation” to determine if the Princess had borne an illegitimate child.Footnote 16 By contrast, lower-profile adoptions occurred whenever friends or family members took in a child for a parent who was unable to keep them.Footnote 17 The nature of de facto adoption meant there was rarely documentary evidence detailing the agreement between the biological and adoptive parents. By contrast, it was standard practice for children's charities to draw up written agreements between the parents and the charity, but these agreements had no legal force and did not remove a parent's financial liability for their child.Footnote 18
Modern histories have established that most children who were adopted by charities during this period had ongoing relationships with at least one parent who gave up custody in the hopes that the charity could offer a better life than the parent could afford.Footnote 19 But these historians also point out that we need to question how willingly parents entered into these arrangements. Some charitable institutions believed in notions of “philanthropic kidnapping” and were prepared to discredit parents with unsubstantiated charges if they sought to regain custody of their children.Footnote 20 More recently historians have argued that it might be more appropriate to understand a parent's decision to give up custody of their child during this period as a conscious attempt to navigate harsh welfare policies, rather than a genuine desire to be freed from the responsibility of parenthood.Footnote 21
Research suggests something similar was also happening under the Poor Law during the late nineteenth century.Footnote 22 When children entered a Poor Law institution they were classified as either an “orphan,” “deserted,” or “other” child. This system of classification was used to differentiate parentless children from those who had living parents who could be pursued for maintenance or potentially assert custody rights. The law initially only allowed parentless children to be de facto adopted so that the guardians had legal authority to send them to foster homes. But it soon became obvious that this left the guardians without lawful authority to take control of “other” children because they could not dispense with parental consent. This gap in the law fueled beliefs that “other” children were a drain on public finances and a barrier to reformation efforts. Social reformers began to view “other” children with significant anxiety because they were assumed to have ongoing contact with a parent who could claim custody. The threat of any widespread assertion of parental custody rights over the population of Poor Law children worried reformers in case it undermined the entire reformation project.Footnote 23 Victorian social reformers believed poverty was a learned behavior which resulted from children being raised in environments where habits of idleness, inebriation, and aversion to hard work were normalized.Footnote 24 Policies governing the care of children under the Poor Law were redesigned toward the end of the nineteenth century in the hope that child poverty numbers could be curtailed if children were removed from this source of influence and raised in controlled environments where habits of industry, cleanliness, sobriety, and obedience were emphasized.Footnote 25
The Problem with “Other” Children
The parents of “other” children threatened this objective because they were perceived as sources of moral contamination who could assert custody rights at any time. A key accusation leveraged against “other” children was that they introduced bad habits and dishonest behaviors to the whole population of Poor Law children by being repeatedly discharged and readmitted by their feckless parents.Footnote 26 Reformers insisted this was an abuse of parental rights that needed to be stopped, and a report was published in 1873 to advance this argument.Footnote 27 The report concluded that admissions and discharges were almost equivalent across a sample of Poor Law schools over a 1-year period and that the parents of “other” children were to blame for the volatility despite a lack evidence to support this claim. Reform activists branded “other” children derogatory names such as “ins and outs,” “casuals,” “revolvers,” “the fluctuating class,” or the “foul stream” to emphasize their moral inferiority compared to truly parentless children who were deemed worthy of financial support. Fifteen years later, the 1873 report was used to help justify the first de facto adoption powers under the Poor Law, but lawmakers resisted calls to include powers to dispense with parental consent because it was felt by some MPs that this would be a step too far.Footnote 28
Reformers continued to argue that parents who failed to financially maintain their children deserved to have their rights terminated. They supported their position by arguing that parental rights restrictions would help improve the future quality of the laboring classes. These arguments played a key role in the introduction of parental unfitness as a justification for de facto adoptions under the Poor Law. Parliamentary records confirm that MPs remained divided on whether the introduction of a power to dispense with parental consent based on parental unfitness would reduce population instability among Poor Law children. The House of Lords expressed concerns that justifying de facto adoptions based on parental unfitness might encourage improvident parents to abandon their children, safe in the knowledge they would be placed in homes “above their station.”Footnote 29 This not only directly contradicted the principle that parents had inviolable financial responsibilities for their children, but it also deeply offended the principle of deterrence which defined Poor Law policy. Supporters of reform responded to these concerns by reassuring MPs that unfitness would rarely be used because the intended focus of the law was to strengthen the guardians' legal authority over parentless children. The Lord Bishop of Winchester told parliament that even parents who “we should desire to not be in charge of children will not see their custody rights unduly interfered with under the new law.”Footnote 30 Following this debate, parental unfitness was introduced as a basis for dispensing with parental consent for a de facto Poor Law adoption. Unfortunately, we do not know how many children were adopted under the rules before unfitness was introduced because there are no published records, but we do know that 7,724 children were adopted after unfitness was introduced and within 6 years this had increased to 12,417.Footnote 31
The Limits of the Law
During the early twentieth century, concerns began emerging that the law might continue expanding the means whereby impoverished parents could relinquish responsibility for their children. Moral panic set in and the courts were forced to answer questions about the limits of the law in terms of alienating parental rights and financial responsibilities for children. The Court in Humphrys v Polak and Wife was asked if a parent could permanently transfer the rights and responsibilities for a child to a third party by way of contract.Footnote 32 Mr and Mrs Polak promised an unmarried mother to maintain her child and bring it up as their own in return for relieving the mother from all financial liability. The Court declared that this type of promise could not be enforced.Footnote 33 The Court went on to say that if the law allowed for parents to simply divest themself of parental responsibility by way of contract, it would undermine the fundamental duty imposed on all parents to maintain their children financially.Footnote 34 The Court highlighted that Poor Law policy defined this duty and thus a contractual agreement to escape liability could never be enforceable.
The rationale for introducing unfitness as a basis for de facto adoption is one of the many ways that distrust of working-class parents shaped the law on parental rights. The significant number of children brought into the system so shortly after notions of unfitness were introduced makes the question of whether it was commonly used to justify intrusion more pertinent. This type of public law interference in the family is made more important because de facto Poor Law adoptions did not require court involvement. The guardians could pass an order to extinguish parental rights and unless the parent successfully appealed, custody rights were terminated until the child was eighteen. To mitigate against the risks of excessive state intrusion, the law provided an appeals process so that parents could challenge the decision of the guardians. This process required that a parent satisfy a court that there was no basis for the adoption order and that it was for the benefit of the child to be returned to their care.Footnote 35
But the law was silent on the type of evidence that would be sufficient for a parent to prove there was no basis for an adoption order. This led to the House of Lords being asked to address this question in Hurst v Nowlan.Footnote 36 This case concerned a widowed mother, Mrs Nowlan, who was charged with knowingly assisting her daughter to leave the care of the Eastbourne guardians after a de facto adoption order was passed. Mrs Nowlan appealed on the basis that the order failed to state its statutory grounds and was therefore invalid.Footnote 37 She argued her custody rights remained intact and there was no case to answer for enticing her child away. The Lower Court agreed with Mrs Nowlan and declared her custody rights remained enforceable at common law. It reasoned that the guardians needed to state the basis within the legislation that was relied upon to make the order and to provide evidence that the basis existed at the time the order was made. But on appeal, the House of Lords disagreed. Their Lordships clarified the position of the law by explaining that “there is nothing in the Poor Law Act 1899 requiring the guardians to state any particular grounds upon which they act […] and no evidence is necessary […] beyond the resolution itself to establish that it was duly passed.”Footnote 38 This judgment affirmed that the Poor Law guardians were the sole arbiters for deciding which working-class parents retained their rights of custody when they were unable to financially maintain their children.
The Social Reality of Poor Law Adoptions
Virtually nothing is known about the ways the Poor Law guardians justified de facto adoption orders during the early twentieth century, particularly with respect notions of parental unfitness. Answering this question is central to developing our understanding of how the system operated in practice and how it contributed to de jure adoption law under the 1926 Act and beyond. Sidney and Beatrice Webb were prominent social reformers during the early twentieth century who were keen historians of Poor Law governance. In their polemic exploration of its administration Poor Law History Part II, they declared that the vast majority of Poor Law adoptions concerned orphans and deserted children.Footnote 39 Although it is true that parentless children were the intended focus of the law according to parliament,Footnote 40 the Webbs did not provide a source to support their claim. Unhelpfully, their unsupported assertion has been subsequently reshared in modern studies.Footnote 41 This leaves us without a clear understanding of how Poor Law guardians exercised their adoption powers, at least one that is empirically supported. The answer is important because of the dramatic increase in the number of adoptions after parental unfitness was introduced and the absence of any evidential requirements following Hurst v Nowlan.
The only way to answer this question was to investigate primary sources about the administration of the system to see if unfitness was extensively used and if so, how it was established. Evidence was drawn from primary sources held at the National Archives and the York and Shrewsbury Archives. The National Archives held records about national administration including the Report of a Conference of Officials on Child Adoption and the Hopkinson and Tomlin Committee Reports.Footnote 42 The Conference report provided the only large-scale information about the prevalence of parental unfitness along with opinions from administrators about the future direction of adoption law while the Hopkinson and Tomin Committee reports provided detailed information about the passage of the 1926 Act. The York and Shrewsbury Archives held some limited information about the local administration of de facto adoption under the Poor Law and included hand-written records which detailed how unfitness was established by local administrators. These records also provided an unexpected insight into how administrators managed their relationships with biological families after an order was made.
A “statement of practice” was provided by the Birmingham Poor Law Union in 1920 to the Conference report which detailed the number of de facto adoption orders made by the Birmingham Union between 1912 and 1920.Footnote 43 The statement also included information about the statutory grounds for the orders and the number of successful and unsuccessful appeals. It revealed that 1,213 de facto adoption orders were issued during the period. Some 393 were for orphans, 196 were for deserted children, and the remaining 624 were for children whose parents were deemed unfit.Footnote 44 The statement also confirmed that only three appeals were made during this period and that in each case the Court decided the order should not be disturbed.Footnote 45
Other evidence drawn from the Conference report suggests that the practice of Birmingham Union was not unique. Statistics were gathered by the Home Office in 1920 concerning the operation of de facto Poor Law adoption from nineteen unions around the country between 1915 and 1920.Footnote 46 The statistics included information about the number of orders made and their statutory grounds. The data revealed that, much like the Birmingham Union, all nineteen unions used parental unfitness as the main justification for an order. For some unions, the disproportionate use of unfitness was stark. For example, Kingston upon Hull issued 170 orders based on unfitness but only five for orphan and deserted children.Footnote 47 Similarly, Croydon issued 137 orders for unfitness but only forty-four for deserted children and nineteen for orphans.Footnote 48 Within this collection of unions, only two orders were rescinded by a court following an appeal by a parent. This provides the first empirical evidence that parental unfitness might have been the main justification for de facto Poor Law adoptions and that for most parents the appeals process was illusory.
Unfitness Means Failure to Maintain
The evidence concerning the national administration of Poor Law adoption suggests unfitness was the most common justification for extinguishing parental rights and, once removed, rights were very rarely restored. However, these records were unable to shed light on how unfitness was established by local administrators and what the relationship between administrators and biological parents was like after an adoption order was made. Administrative records from Clun and York Poor Law unions between 1898 and 1926 were selected to help answer these questions.Footnote 49 These collections were selected because they were the most extensive surviving records about the local administration of Poor Law adoption.
Once a child was adopted under the Poor Law they were usually sent to a foster home which could be within the boundary of the Poor Law union or beyond.Footnote 50 All the Clun and York children were placed within the boundary. Fostering within the union was controversial for the same reasons lawmakers were nervous about introducing Poor Law adoption—distrust of the working classes. Yet again fears were expressed that fostering within the union would encourage biological parents to seek custody of their children which would undermine reformation efforts.Footnote 51
The evidence drawn from these sources suggests fears of this nature were unjustified. Parents did not make requests for children to be returned to their care, nor attempt to entice children away from their foster homes. Instead, many kept in touch with the guardians despite being declared unfit. Fifty-five children were adopted by Clun Union between 1912 and 1926 and 76% of parents provided a name and address to administrators to keep in touch.Footnote 52 The same was true for the York Union. Fifty-nine children were adopted between 1898 and 1918 and 81% of parents provided a name and address to administrators.Footnote 53 Much like the findings drawn from the Conference report, very few orders from Clun and York unions were made because a child was parentless. Fifty-eight percent of the orders issued by York Union were based on parental unfitness and 52% from Clun Union were justified in the same way.Footnote 54 These findings fit with the information drawn from the Birmingham statement of practice and the Home Office statistics which suggested unfitness was the most prominent justification for de facto adoption under this framework. Significantly, parents chose to be known to administrators despite being deemed unfit even though it meant they could be pursued for maintenance much more easily. The fact parents were willing to remain known suggests they wanted to maintain some kind of connection with their child despite the threat of financial consequences.
There is also the possibility that parental unfitness was used more extensively by both unions because numerous adoption orders provided no information at all. Only six were justified by desertion or orphanhood between both unions, whereas the remainder were either based on unfitness or no explanation was provided. Where unfitness was used, surprisingly little detail was given about how it was established. Quite often the guardians simply noted “parents bad” or “mother of bad character” when explaining why an order was made.Footnote 55 Although the law never defined parental unfitness, parliamentary records confirm that lawmakers envisioned it would be used in situations where parents normalized behavior such as intoxication or low-level criminalityFootnote 56 but the evidence from York and Clun suggests unfitness was typically used when a parent was unable to financially maintain their child. For example, Charlotte Evans lost her right to the custody of her daughter Lucy in 1912 because she was unable to contribute.Footnote 57 The guardians simply stated, “M unfit because unable to contribute.” Twelve other orders were justified in a similar way by the Clun Union. In York, the mother of Clara and Frank Hew lost custody because “F paying under order but M unfit not paying.”Footnote 58 The same happened to the mother of John, Alice, and Elizabeth Lamb who was deemed unfit for failure to maintain.Footnote 59 The York guardians initially passed an order for John and Ida Sharp because they had been deserted but when their father explained that their mother was dead and he had not deserted them, the guardians passed another order based on unfitness because he was unable to pay toward their upkeep.Footnote 60 In another case, Muriel Mitchell was adopted after her widowed father was deemed unfit because he lost his income following an unauthorized absence from the army.Footnote 61 Three children from the Browne family were adopted despite their uncle paying maintenance because the guardians felt the mother could also contribute but did not.Footnote 62 There were also eight instances where unfitness was established on the basis that the mother was unmarried. For most of these children, the adoption orders remained in place until the children were eighteen. However, George Foulkes was exceptionally allowed to return to his parents after their subsequent marriage because they were deemed to no longer be living an immoral life.Footnote 63
Disrupting Parent–Child Relationships
Surveillance played a key role in the regulation of de facto Poor Law adoptions and foster parents were required to make children available for regular inspection to ensure the rules were followed. Children had to be visited by a member of a visiting committee every 6 weeks and by a medical officer at least every quarter.Footnote 64 Foster parents also had to live within 5 miles of at least one committee member and 2 miles of the child's school.Footnote 65 Children could also be inspected at school and their church attendance was also monitored. The guardians were also empowered by statute to fine biological parents 20 pounds if they assisted or enticed a child away from a foster home.Footnote 66 Surveillance of this nature fits with the patterns of distrust about the motivations of working-class parents regarding the custody of their children which had helped initiate parental rights restrictions decades earlier.
There was no evidence in the Clun and York collections that fines were issued to parents. However, there was evidence that local administrators proactively disrupted relationships between adopted children and their biological families without legal authority. Local administrators were volunteers who were approved by the Local Government Board. Unlike the guardians, they were not responsible for passing adoption orders or administering financial support but were responsible for finding suitable homes for children and supervising placements to ensure compliance with the law.Footnote 67 Numerous entries from York records confirm that administrators overstepped this remit in various ways. For example, a letter was read out at a meeting on February 25, 1909 which stated that the mother of Henry and John Lamb would like the address of their foster home so that she could write to them.Footnote 68 The boys had been adopted 2 months earlier because their father had died and their mother was deemed unfit because she could not financially maintain them.Footnote 69 The Committee refused the mother's request without explanation and the following year issued her with a formal warning to not contact her children without their permission.Footnote 70
Findings of this nature were not unusual within this collection of minutes. A request from a boy named William Smith was read out at a meeting on May 20, 1909.Footnote 71 William was a naval trainee serving on the Wellesley Training Ship and wrote to the Committee asking to spend the Whitsuntide holidays with his mother. The York guardians had William adopted because his “mother Annie Smith is of bad character and is living with a man she is not married.”Footnote 72 According to the minute book, William's mother appeared in person at the meeting to support the application but was refused when she admitted she was still living with the man to whom she was not married.Footnote 73 This happened again in a meeting on July 31, 1911.Footnote 74 A mother named Elizabeth Hearland wrote to the York Committee asking for the address of her son, who was also on the Wellesley Training Ship. Although no information was given about the reason for his adoption, her request was refused because she was not married to the child's father.
More curiously, it appears there were agents other than local administrators who also intentionally disrupted relationships between adopted children and their biological families. A letter was read out on February 27, 1911 from the Captain Superintendent of the Wellesley Training Ship which expressed dismay at the volume of communications from friends and family addressed to the boys on the ship.Footnote 75 The Captain was concerned this might be “contrary to the wishes” of administrators and asked permission for future communications to go through the Ship's Clerk so they could be checked for suitability. Administrators agreed without challenge. Later that year another letter was read out written by four brothers on the Wellesley Training Ship asking to spend Christmas with their parents.Footnote 76 Again, the application was refused without explanation.
The law did not require administrators to monitor the relationships of de facto adopted children and their parents in this way. Administrators were only obliged to visit every 6 weeks, remove children when foster parents breached requirements and report to the Local Government Board about their visits. Yet it appears administrators were prepared to intervene quite heavily in the family lives of adopted children, including broader familial relationships. For example, the older sister of Doris Carris was told she could not have her sister's address until the committee had the opportunity to meet her and determine if her character was satisfactory.Footnote 77 In another, the aunt of Sarah Croft asked to teach her niece dressmaking but was refused because administrators felt a dressmaking apprenticeship supervised by themselves would be more appropriate.Footnote 78 In another instance, a boy named Harold Haw who had emigrated to Canada wrote asking for the address of his siblings who had been adopted by order of the York guardians.Footnote 79 Again, administrators refused the request “until it was definitely ascertained [that Harold] was not in communication with his mother, but that an offer be made to forward any unsealed letters to them.”Footnote 80 Unfortunately, no information was given about why these orders were made so we do not know if unfitness or failure to maintain were features of these cases.Footnote 81
Clearly, these interventions were deliberate and without lawful basis. It is commonly accepted that the Poor Laws were punitive rather than benevolent legislation but what is extraordinary about these interventions is how far they extend beyond the law to punish impoverished parents who were unable to financially provide for their children. Administrators were empowered with broad discretion, but the law did not allow them to obstruct communication or monitor correspondence and yet they did this with seemingly little consequence. The York and Clun guardians were not acting unlawfully by declaring parents unfit for being unable to financially maintain their children because the law never defined what unfitness meant. No guidance was issued by the Local Government Board and there are no published cases clarifying this issue. What little we know comes from parliamentary debate which at no point suggested that failure to maintain was the intended focus of the law. However, this type of punitive administration fits with wider patterns of punishment directed at poor parents from this period.Footnote 82 All of this could simply be explained as typical Victorian classism except that failure to maintain was inserted in the 1926 Act as a basis to dispense with parental consent when making adoption orders. This meant parents could permanently and irrevocably lose their rights if they were unable to financially provide for their children, which was even more severe than the consequences of a Poor Law adoption order. This is all the more unsettling because the power to dispense with parental consent based on failure to maintain remained a justification for making adoption orders until 1959.Footnote 83
Connections between the Poor Law and the 1926 Act
By the late nineteenth century, de jure adoption was embedded in most common law legal systems around the world. English lawmakers were extremely reluctant to expand beyond the Poor Law framework because they felt parentage invoked unbreakable financial obligations which the de facto system did not disrupt. But after World War I concerns began to emerge about the rising number of orphan and parentless children. Home Office officials feared that children's charities might exploit this situation to the detriment of children's welfare.Footnote 84 To deal with this problem, the Hopkinson Committee was established to investigate if de jure adoption should be introduced. The Committee sought to answer this by exploring how de jure adoption operated in other jurisdictions. They quickly disregarded systems from mainland Europe because “the laws of most continental countries on the subject [of adoption] are based on ideas with regard to family and social conditions, which differ in important matters from those here.”Footnote 85 Instead, the Committee felt the systems in New Zealand and the United States were more relevant to their inquiry because they were less concerned with notions of family and more concerned with reducing the burden of destitute children on the state. The Committee explained:
There is no doubt about its benefits both to the infant adopted and the adopting parents, while the State gains in this way; that the burden of maintaining destitute persons is lightened and its liability to care for and educate the unfortunate child is lessened through the aid of private persons.Footnote 86
The Need for Enforceable Parental Rights
The Committee drew on evidence supplied to the Conference report when starting its inquiry.Footnote 87 They looked at evidence from various officials, administrators, and reform organizations who advised about the functionality of the Poor Law framework and the possibility of a system of de jure adoption. A clerk from Tynemouth Union gave evidence to the Conference explaining that a critical problem with the de facto system was that it did not offer parental rights that could be enforced at law, unlike de jure adoption. He explained that Tynemouth Union received a significant number of applications from desirable couples who wanted to adopt a child for reasons of love rather than financial gain, but insisted that solicitors drew up a legally enforceable agreement to protect their rights to custody.Footnote 88 The Tynemouth clerk told the Conference that if rights could be assured by law it would not only encourage more suitable people to come forward, but it would also serve a valuable deterrent function for parents who sought to evade their financial responsibilities by seeking public assistance.
Similar ideas were expressed by members of the National Council of Women of Great Britain and Ireland.Footnote 89 The Council broadly championed proposals for reform because it believed de jure adoption would improve child welfare and deliver legal security for adoptive parents. One member explained that de jure adoption was needed to put an end to opportunistic lawyers taking advantage of prospective adoptive parents. She explained that it was not uncommon for unscrupulous lawyers to charge a guinea for “deeds of adoption” which adoptive parents were told were “absolutely legal” and that the child was their own.Footnote 90 Deeds of this nature were of course a legal nonsense under the de facto system but this did not deter practitioners from capitalizing on adoptive parents’ anxieties. Other members suggested reform could improve the welfare of children. They explained that the union had seen numerous cases where “desirable” couples returned de facto adopted children after a biological child was born. One witness explained that this was a necessary consequence of de facto adoption because it encouraged adoptive parents to see arrangements as temporary and their parental responsibilities as revocable. She concluded that the Poor Law system of adoption was akin to “handing out a little child on probation, like a cat or a dog.”Footnote 91
The clerk from Southwark Union told the Conference that de facto adoption was harming the cost and efficiency of the reform agenda. He explained that without the introduction of de jure adoption, there was a risk of wasting public expenditure because the types of families that were capable of reforming children into “useful citizens” would not open their doors without legal certainty about their status.Footnote 92 The clerk explained that Southwark Union received a substantial number of requests from suitable couples wishing to adopt from guardianship care but most were deterred when they realized they could not recover the child if it returned to its biological parent upon reaching eighteen. Numerous contributors to the Conference echoed concerns of this nature, supplying evidence that was embedded with language of distrust and suspicion about the motivations of working-class parents who wanted to reunite with their children.
These fears resonated with the Hopkinson Committee which advised the government that “it is no uncommon thing, when a child reaches the age at which it can work and earn wages, for parents who habitually neglected it and left it to be brought up by a relative or even stranger, to claim it back simply in order to take its earnings.”Footnote 93 They argued that enforceable parental rights were required for de jure adopters to avoid being exposed to the risks of blackmail by improvident biological parents who sought to regain custody at any cost.Footnote 94 A Poor Law inspector from Christchurch Union went as far as to argue that without reform some biological parents would regain custody of their children to murder them simply to prevent them from having a better life with a new family.Footnote 95 In the end, the Committee concluded:
Much as we deplore the desire to escape parental responsibility, we consider that it would not be possible to amend the law so as to completely prevent improper cases of “adoption” taking place […] persons will always be found willing and anxious to transfer the custody of their children to others for reasons which are, in fact, inadequate and improper.Footnote 96
However, the Committee's recommendations were not well received by the Home Office because it was felt that the report ignored all the complexities of de jure adoption that were observed in other jurisdictions. This prompted the government to appoint the Tomlin Committee to conduct another review.Footnote 97 This Committee was even more skeptical about the arguments for reform than the Hopkinson Committee. Yet again distrust of the poor crept into their reasoning. The Committee doubted there would be enough suitable homes willing to adopt children to meet the anticipated demand from worthless parents eager to get rid of them.Footnote 98 Despite this concern, the Committee reluctantly conceded that de jure adoption was needed to provide legal certainty for those parents who wanted to raise nonbiological children but insisted safeguards were needed to prevent improper practice as envisioned by the Hopkinson Committee. The Tomlin Committee drafted a bill which imposed safeguards including judicial oversight, requirements for parental consent, promotion of child welfare, and prohibitions on secrecy to ensure the risks of improper adoption were minimized.Footnote 99
The draft bill included these safeguards along with the power to dispense with parental consent in specific circumstances. Such circumstances included cases where a parent had “abandoned or deserted the infant, or cannot be found or is incapable of giving consent, or, being a person liable to contribute to the support of the infant, either has persistently neglected or refused to contribute to such support.”Footnote 100 This wording bears significant similarity to provisions in the Poor Law legislation which stated “nothing in this section shall relieve any person from any liability to contribute to the maintenance of a child, but the fact of such contribution being made shall not deprive the guardians of any of the powers and rights conferred on them by this section.”Footnote 101 Both provisions allowed for adoption orders to be made without consent if parents failed to financially maintain their children.
Neither the Hopkinson Committee, the Tomlin Committee, nor the members of the Conference expressed opposition to justifying de facto or de jure adoption orders based on parental failure to maintain. A member of the Conference even recommended powers to dispense with parental consent be extended to cases of “detriment to the physical or moral welfare of a child” during the second reading of the draft billFootnote 102 but Tomlin disagreed with this recommendation on the basis that the bill needed to represent a “minimum interference with the wishes of the parent” and to dispense with consent on the basis of misfortune “would be going altogether too far.”Footnote 103 However, when the bill was passed into law it extended the grounds for dispensing with parental consent to include those “whose consent ought, in all the circumstances, to be dispensed with.”Footnote 104 Calls were made before the Act was passed to define such circumstances in statute, but lawmakers resisted such calls based on the need for wide judicial discretion.Footnote 105 The main consequence of expanding the grounds for dispensing with parental consent in this way was it gave the Court the power to make irrevocable de jure adoption orders without justification, much like the guardians were able to justify de facto adoption orders based on undefined notions of unfitness that did not require evidence.
Adoption Power as Punishment
There was broad consensus among lawmakers, reformers, and Poor Law administrators that de jure adoption power under the 1926 Act should be decided by a court but considerable debate remained about which court was best suited to the task. The Hopkinson Committee recommended that the High Court or County Courts be given powers to grant adoption orders because they felt the Magistrates Courts were inappropriate due to their administration of criminal matters, but the Tomlin Committee disagreed. Justice Tomlin felt the responsibility was better vested in the Magistrates because they were more familiar with the conditions of local communities and could better ascertain the suitability of prospective adopters and make determinations about the need to dispense with parental consent.Footnote 106
The law required parental consent to be “real and informed” so that biological parents fully understood the consequences of a de jure adoption order before it was made.Footnote 107 This requirement was designed to ensure parents acted of their own free will and were not compelled to part with their child due to social or economic pressures. Consent requirements were meant to protect against situations where a mother might “make a surrender of her child final in character though she herself, if a free agent, desire nothing more than temporary provision for it.”Footnote 108 However, as time passed it became apparent that there was confusion among the lower courts about the remit of their powers to dispense with parental consent. In H v H,Footnote 109 the superior Divisional Court confirmed to the Magistrates that it was entirely appropriate to dispense with consent when a parent failed to maintain their child and that the power extended to all circumstances where the Court felt it should. Thus, the power to dispense with parental consent when making de jure adoption orders under the 1926 Act was virtually limitless. The Court explained that the Act was intended to give the courts “the widest possible discretion” and was “not limited to persons who failed to contribute to the support of the infant.”Footnote 110 In the Court's opinion, this was a simple matter of statutory construction.
The effect of H v H bears a clear resemblance to the decision in Nowlan 30 years earlier when the Court established there were no evidential requirements for the guardians to pass de facto adoption orders. Again, virtually unlimited discretion was afforded to decision-makers without any real tangible powers for biological parents to resist such pervasive authority. Lawmakers claimed parental rights were protected from excessive intrusion under the Poor Law framework through the provision of the appeals processFootnote 111 but we know the appeals process was ineffective, which is hardly surprising given the challenge of proving there was no basis for an order when the guardians were not required to establish one in the first place. The appeals process in the de facto adoption framework failed to protect parents from excessive intrusion because it was part of a punitive welfare system that sought to deter reliance on public support. It was a system that functioned as a punishment for parents who were unable to financially support their children. It appears the most effective way to avoid the possibility of a de facto adoption was simply to not seek support from the guardians.
It remains unclear if something similar occurred with de jure adoptions under the 1926 Act because there is no published study exploring how dispensation powers were used. This gap provides a line of future inquiry that deserves investigation so that we can better understand how far punitive Victorian social care policies on adoption extended into the twentieth century. Consent requirements for de jure adoptions were recommended by the Tomlin Committee for the same reasons the appeals process was introduced to the Poor Law framework—to protect biological families from excessive state interference—but the appeals process for de facto adoptions failed this objective so it must be questioned whether consent requirements for de jure adoptions functioned as an effective safeguard against state intrusion.
Discussion of the 1926 Act tends to focus on the unique combination of social factors which precipitated its passage: an unregulated philanthropic children's sector, rising numbers of illegitimate and parentless children after the war, and fears of declining patriotism and its consequent risks to national security. These are undoubtedly important factors in the development of de jure adoption which this article does not contest. However, analyses that focus solely on these factors are flawed because they imply the introduction of de jure adoption in England might not have otherwise happened when it did. This ignores the role played by de facto Poor Law adoption and the punitive policies that underscored its administration. Once the Poor Law is taken into consideration, it becomes much easier to see the connection between policies of punishment and deterrence and the twentieth-century adoption framework.
When viewed from this perspective it is unsurprising that lawmakers bore little enthusiasm for introducing de jure adoption when they did. If you add lawmakers’ baseless fears of unmanageable numbers of parents eager to escape their parental responsibilities and their misguided beliefs about learned habits of poverty, it becomes increasingly clear why England was slow to introduce de jure adoption compared to other jurisdictions. The authorities did not want the poor to have the option to evade parental responsibilities without a significant deterrent in place. Poor Law adoption functioned as this deterrent, which saw impoverished parents lose custody of their children if they could not afford to maintain them while remaining financially liable. Financial maintenance was a crucial factor in the decision to intervene, which filtered directly into the powers to dispense with parental consent for adoptions under the 1926 Act. This casts a different light on the history of adoption because we can see it has clear roots in antiquated Victorian social welfare policies that were intended to punish the poor and deter them from seeking financial support from the state.
Conclusion
The introduction of de jure adoption in England cannot be understood as a parliamentary response to problems of widespread illegitimacy, wartime orphanhood or unregulated charitable activity. Undoubtedly these were important factors in reform, but they do not tell the whole story because they do not take account of the role of de facto adoption under the Poor Law. The 1926 Act fixed the problem in the law of being unable to create new parental rights when biological rights were extinguished. This played well with social reformers who remained deeply skeptical toward working-class parents who required financial support for their children. It was hoped that this change would not only encourage more desirable families to adopt, but that it would also further deter working-class parents from failing to maintain their children. Once additional concerns about the future of the Empire and the reform agenda are added to the mix, it becomes increasingly clear why lawmakers conceded when they did.
When viewed from this perspective, the 1926 Act is consistent with wider patterns of punitive legislation aimed at the working classes during this period. For example, the first laws to criminalize child neglect disproportionately affected parents experiencing material deprivation.Footnote 112 Court reports showed middle-class parents were seldom charged and never convicted for neglecting their children whereas unmarried mothers, widows and parents experiencing extreme financial hardship were penalized. Similarly, the criminal law struggled to protect underage girls from working-class backgrounds from sexual assault due to “ingrained gendered biases about the Victorian working-class family.”Footnote 113 Again, girls from middle-class families had very different experiences of the law and the protection it could provide. Working-class victims were largely blamed for their assaults and treated with distrust by the courts. Quite clearly, the law protected some while punishing others. The 1926 Act should be seen as part of this pattern because it has clear ties to the policies of the Poor Law which survived well into the twentieth century.
Acknowledgments
The author would like to thank Dr Laura Lammasniemi, Professor Rebecca Probert, and Dr Paola Zichi for reading and giving detailed feedback on earlier versions of this article. Some of the findings from this paper were first presented to the Legal History stream of the Society of Legal Scholars conference in 2023.
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