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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition - Lilley [1877] ScotLR 14_281 (31 January 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0281.html
Cite as: [1877] ScotLR 14_281, [1877] SLR 14_281
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SCOTTISH_SLR_Court_of_Session
Page: 281↓
Court of Session Inner House First Division.
Husband and Wife
Facts:
Held that where neither parent is personally disqualified for the custody of a child, the right of the father must prevail.
In a petition by a father for the custody of his child, which was granted, the petitioner found liable in expenses.
This was a petition presented by the Rev. J. P. Lilley for the custody of his infant child. He was married to the respondent in July 1875, and on returning home from a visit to his father in March 1876 found that his wife had left his house. She was delivered of a female child on 19th May 1876, in her sister's house, and since that date had remained there with the child. Answers were lodged by the respondent, narrating the causes of her leaving her husband's house, and stating that the child though healthy was not robust, and required all the care a mother could give it. She offered the petitioner free access to the child as he might propose or the Court fix. The petitioner made the same offer to her if the Court should grant his petition.
When the case first came before the Court, as it appeared that the child had not been baptised, their Lordships postponed consideration of the petition for a week that this might be done, as parties' counsel should arrange.
Argued for the petitioner—Without going into the merits of the dispute between the parties or touching on the allegations made against the petitioner, this question may be dealt with as one of legal right. It is necessary before a father can be deprived of the custody of his child that some danger to life, health, or morals should be shown to be a likely consequence of its being given into his care, and there can be no such danger apprehended here.
Authorities— Lang v. Lang, January 30, 1869, 7 Macph, 446 (Lord Neaves' opinion); Nicolson v. Nicolson, July 20, 1869, 7 Macph. 1118; Steuart v. Steuart, June 3, 1870, 8 Macph. 821; Curtis, May 7, 1859, 5 Jurist (n.s.) 1148, 28 L. J., Ch. 459.
Argued for the respondent—The circumstances here, without considering the allegations made against the petitioner, take this case out of the ordinary rule. The child has never been in the father's house; it is of a very tender age, and a girl. The Court in such a case must determine the matter according to the child's interest. In
Page: 282↓
Lang's case the parents had been separated, and the children were aged 7 and 5. Nicolson's was quite a unique case. In Steuart's case there was a family of eight children all living with the father, and the child whose custody was asked by him was 4 years old. In Symington's case (H. of L., March 18, 1875, 2 Rettie 41), the Lord Chancellor lays it down that in such a question the Court must attend to the interest of the children above all. At advising—
In these circumstances, the Court is of opinion that, in accordance with previous cases, the right of the father must prevail. We shall therefore make an order substantially in terms of the prayer of the petition. But before the order is signed some arrangement must be made to secure that the mother shall have proper and reasonable access to the child.
The Solicitor-General, for the petitioner, proposed that the child should be sent to the mother's house in Arbroath once a-week, from eleven till six, and that the mother should have an opportunity of visiting it at the father's house at anytime.
Balfour, for the respondent, stated that he had no authority to say that that arrangement would be satisfactory, and therefore left it in the hands of the Court.
The respondent moved for expenses. In Nicolson's case, quoted above, the husband was found liable in expenses, and that is the rule in all such questions between husband and wife. That the respondent here is possessed of considerable private estate is immaterial, for the question is eminently personal.
The Court pronounced the following interlocutor:—
“Find that the petitioner is entitled to the custody of the child of the marriage between him and the respondent: Therefore decern and ordain the respondent forthwith to deliver up the said child to the petitioner, or anyone having his authority to receive delivery, but reserving to the respondent right of access to the said child as follows, videlicet:—The petitioner to send the child to the respondent's residence in Arbroath on a visit to her once a-week, on any day she may select, to remain with the respondent from eleven a.m. to six p.m.; the respondent to be also entitled, but without any attendant, to visit the said child in the petitioner's house, without the petitioner being present, at any time she may desire: Quoad ultra continue the cause, that either party may here after move the Court in the event of any change of circumstances: Find the petitioner liable to the respondent in the expenses hitherto incurred, and remit to the Auditor to tax the account thereof, and report.”
Counsel for Petitioner—Solicitor-General (Macdonald)— R. V. Campbell. Agents— Maitland & Lyon, W.S.
Counsel for Respondent—Lord Advocate (Watson)— Balfour—H. Johnston. Agents— Leburn & Henderson, S.S.C.