Scottish Court of Session Decisions

Lord Justice Clerk—If I were asked to assent to all the views expressed by the Lord Ordinary, I could not entirely concur with him. It appears to me that he has mixed up two questions—that of a right to the custody of children, and that of aliment. The question here is one of aliment, and must be decided by entirely different principles from one of custody. It is a claim in equity arising from the natural claim of the children against their mother, which of course resolves itself into a claim against her second husband. The answer of the defenders to the demand of the pursuers is,—“We admit the obligation, and we propose to discharge it by taking the children into our family;”—and generally this is a reasonable answer. The question is whether it is a sufficient answer in this case, and I have come to the conclusion that it is. No doubt the conduct of the defender Dr Riddell, in former years, is strongly to be reprobated, and I have not been moved by any of the explanations of it that have been attempted. I believe, too, that Mrs Riddell was to some extent cognizant of his proceedings. But it must be borne in mind that all these things happened upwards of five years ago, and that Dr Riddell's present general character is not impugned. In these circumstances, I am of opinion that the defenders' offer to take the children into their house is sufficient, and that we cannot call upon them to pay a separate aliment.

Lord Cowan—There is no doubt considerable delicacy as to the principles on which we should dispose of this case, but I am satisfied that the Lord Ordinary has arrived at a sound conclusion, subject, however, to some explanation. This is not an application for the custody of children; such a case would have to be decided on different principles. The claim here is for aliment. The defence by which the claim is met is, that the defenders have no income sufficient to aliment these children out of their own house, but are willing to receive and entertain them in their family. Now, is this a relevant defence? Suppose Mrs Riddell had been a widow, and there had been no flagrant criminality on her part, the defence would have been sufficient. What, then, is the result of her second marriage? It is to transfer the obligation to aliment the children from the mother to their stepfather, and all the defences pleadable by her become competent to him. I am of opinion that the defence pleaded in this case is both competent and relevant. Had Dr Riddell been shameless and criminal in his conduct, the case might have been different. I am not much moved by the letters written by him five or six years ago. They show that he was guilty of very shameless conduct at that time, but since then it appears that he has enjoyed a respectable practice. The pursuers admit that they do not impugn his general character, and we must therefore hold it to be respectable now. If that be the case, is his offer relevant in the circumstances? The whole annual income enjoyed by Dr and Mrs Riddell amounts to £190 only. It is therefore surely impossible to say that they can afford to pay for the separate maintenance of these children. The defenders say—“Here is a door opened to you, by which you may enter your mother's house, and be there alimented,”—and in saying so they seem to me to make a reasonable and sufficient offer. Had the question been one of the custody of the eldest girl being sought by Dr and Mrs Riddell, I might have hesitated before sending her to a home where she will probably be somewhat uncomfortably situated; but the case is one of aliment, and, in the whole circumstances, the defences that have been pleaded must be sustained.

Lord Benholme—The question is, Has the demand for aliment by these children against their mother and her husband been well answered? If, in the first place, we suppose that there had been no imputation whatever against the character of the married pair, and they had had plenty of funds, they would unquestionably have been entitled to implement their obligation by taking the children into their own house. That is the general rule. But where anything is alleged against the character of the person liable for aliment, that rule is liable to be modified, in accordance with equitable considerations. A strong circumstance in the present case is that the defenders have hardly enough to support their own children. Had they been charged with cruelty or immorality, the benefit of implementing the obligation by alimenting the children in their own house might, perhaps, have been denied to them; and one might even imagine circumstances in which the benefit would be refused when the conduct of the parents was not very bad. But the whole circumstances—the pecuniary position, as well as the character of the parties—must be taken into consideration. In the present case it is quite clear that the circumstances are such as to render it difficult or impossible for the defenders to maintain the children out of their house; while, on the other hand, there is no such serious imputation on their character as to render it impossible for the children to reside with them. On the whole, therefore, I concur with the Lord Ordinary.

Lord Neaves—This is a somewhat remarkable case. The defenders are not in affluent circumstances. They have a family of their own, which may perhaps be increased. Their defence is—“We cannot afford to split up our household into two parts.” This, in the circumstances, is a complete answer to the claim. The strong statements in the record with regard to the character of the defenders have not been substantiated. No doubt their antenuptial conduct was not strictly correct, but it is not proved to have been known to the children. Dr Riddell, too, appears to have got into a most painful position some years ago with regard to a woman who is now gone to her account. But the memory of such offences is not to be kept up for

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