Scottish Court of Session Decisions

M'Carroll was father of an illegitimate child born in 1868, of which Kerr was the mother. She in 1869 got decree against M'Carroll for aliment at the rate of £8 a-year; there was a restriction in the decree reserving the defender's right to apply for the custody of the child on its attaining the age of seven. The aliment was paid till the child was past eight years of age, when it was refused, and Kerr accordingly, on the 20th December 1876, gave M'Carroll a charge upon the decree for the sum of £2, being the one quarter's aliment due on 6th December preceding.

This was a note of suspension of that charge, and of interdict of a poinding which had followed upon it. The complainer stated, inter alia—“The complainer has since the said decree regularly paid aliment for the said child; but the said child having attained the age of seven years, the complainer is desirous and has offered to take the child into his own custody, and to aliment the child under his own care. He wishes to bring the boy up to his own business in his own house and shop. The boy in question is in good health, and his aliment and education can be best attended to by the complainer. The charger is the sole servant, employed from 8 A.M. to 11 P.M., in a small public-house in Ardrossan, and the boy goes about the said public-house, where he gets his meals in company with an elder son of the charger, also illegitimate. The boy sometimes sleeps in the charger's house or lodging and sometimes in that of her aunt; but he is practically houseless and under no sufficient control. The complainer is entitled, and now demands, to discharge his obligation of aliment by taking the boy into his own keeping.”

The respondent answered—“Admitted that till recently the complainer has paid aliment for the child, which is now past eight years of age. Admitted also that the complainer has offered to aliment the child in his own house, but explained that since the birth of the child the complainer has been married to another woman, by whom he has had several children, and that it would be unsafe and injurious to the best interests of the complainer's natural child that it should be taken to his house and brought up along with his wife and lawful children. The complainer's wife has an antipathy to the child, both because of its being the child of her husband by another woman and because it has been trained as a Protestant, while she and her husband are Roman Catholics. On one occasion, when the child accidentally strayed into the complainer's shop, his wife struck and ill-used it in a most cruel manner. “She further stated that the complainer's offer was not made bona fide, and that though living quite near he had never taken any interest in the child.

A proof was led, the purport of which appears from the note to the Lord Ordinary's interlocutor. His Lordship repelled the reasons of suspension and interdict, and found the charge orderly proceeded, and decerned. He added the following note:—

The question is whether the complainer, who for eight years has been contributing to the aliment of a bastard child, now nearly nine years old, of which the respondent is the mother, is henceforth to be relieved of liability by an offer to take and support the boy? Whether the complainer really desired to have the child may be doubted. Affection indeed is not put forward as the motive, and the offer, were it to be accepted, would be pecuniarily unprofitable to the complainer. The Lord Ordinary is disposed to think that the complainer is speculating on the

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* Decided 15th June

Page: 107↓

probability that the respondent will rather give up her claim for further aliment than part with her child. This consideration, however, does not furnish a ground for the decision of the controversy. The same thing has been or might have been said in most of the cases of this description which have come before the Court.

The first consideration which is urged by the respondent as a reason why she should not be held bound to give up her claim on the corn-plainer for aliment if she is to retain the custody of her child, is that he is now a married man, living with his wife and the children of their marriage. The introduction into the family of such a stranger as this bastard child, must, it is said, be a cause of misery to all, though the principal sufferer would of course be the bastard. This is a view which in all likelihood would be realised. Any arrangement more undesirable than what is proposed could scarcely be imagined; but nevertheless it has never been sustained as a ground upon which such an offer as the complainer's may be rejected without releasing him from liability for future aliment. The contrary indeed is proved by several decisions of the Court. The respondent, to strengthen this part of her case, alleges that illwill and violence have already been exhibited towards the child by the wife of the complainer. But the Lord Ordinary is of opinion that this has not been satisfactorily established; and, therefore, the allegation has been thrown out of account in repelling the reasons of suspension.

What the Lord Ordinary has proceeded upon is this—The respondent is a Protestant, and as she desires that her child should be brought up as a Protestant, she refuses to give it up to the complainer, who is a Roman Catholic, and whose wife is a Roman Catholic, because it would be brought up by them as a Roman Catholic. The point thus raised for decision is new, and there is no authority touching it to be found in any of the books. This, of course, renders the decision of the present case all the more difficult. If a bastard is to regarded merely as an animal, for whose upbringing all that has to be provided is so much daily food, this objection must be overruled; but it cannot be so regarded exclusively. It is a human being. The child in question is already intelligent, and will soon be responsible for its conduct. There are thus other things to be supplied besides food and raiment, and of these religious training is the most important. This is a consideration which cannot be ignored. And who is to determine the creed which the child is to be taught? Not the complainer surely, for he has none of the rights of a father, and indeed is not held in full legal acceptance to be the father. The mother of a bastard is the only parent that, as such, is recognised. Her will, therefore, on this subject must be paramount. She has not only the relative right, but is under a relative obligation. The law is interested in the exercise of the one and in the fulfilment of the other, and neither, as the Lord Ordinary thinks, may be frustrated by forcing upon her such a temptation to sacrifice her duty as that presented in the offer of the complainer. He, indeed, has explained that, should the Court so direct, he, in place of bringing up the respondent's child as a Roman Catholic in his own house, will board it out in a respectable family that it may be brought up as a Protestant. The Court, it is thought, will not assume the responsibility of giving any such direction. Nor is there any need for its interference. The willingness of the complainer to transfer the custody shows plainly enough that there is no legitimate interest or end which is to be served by taking the child out of the custody of the respondent.

“Two other things may properly be explained. The first is, that the Lord Ordinary's judgment has nothing to do with the comparative merits of Protestantism and Roman Catholicism. The respondent happens to be a Protestant, but had she been a Roman Catholic and the complainer a Protestant, the same decision would have been pronounced. The other is, that though it has been suggested on the part of the complainer that the child in question has not been well eared for by the mother, the appearance and intelligence of the boy point to the opposite conclusion. This can have little influence upon the decision; but nevertheless it is only fair that the impression produced upon the mind of the Lord Ordinary in the course of the boy's examination as a witness should be communicated.”