Scottish Court of Session Decisions

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Cite as: [1882] ScotLR 19_595, [1882] SLR 19_595

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SCOTTISH_SLR_Court_of_Session

Page: 595↓

Court of Session Inner House First Division.

Saturday, May 13. 1882.

19 SLR 595

Bloe

v.

Bloe.

Subject_1Parent and Child
Subject_2Father's Right to Custody of Infant Child.

Facts:

A wife living apart from her husband is not entitled to retain the custody of a child of the marriage; and averments of cruelty which would be relevant in an action of separation and aliment are not a relevant answer by her to a petition by the husband for custody of the child.

Headnote:

This was a petition by Alfred Henry Bloe, residing in Dundee, for custody of the child of the marriage between him and Mrs Margaret Ross or Bloe. The marriage took place in July 1880, and the child of which the petitioner here asked the custody was born in June 1881. The petitioner and his wife lived together till October 1881, when Mrs Bloe left her husband's house, taking the child with her, in consequence, as the petitioner alleged, of petty differences which had arisen between the spouses. The petitioner produced copies of various letters which he had written to her after the separation, and in which he begged her in affectionate terms to return. In these letters the petitioner admitted that he had treated his wife with some unkindness, for which he begged her forgiveness. Mrs Bloe did not answer these letters. The petitioner thereupon consulted a law-agent, and after certain correspondence between him and an agent acting on behalf of Mrs Bloe, this petition was presented on 31st January 1882, the child being then seven months old. The petitioner averred that he had a suitable home to which to take the child, that his mother would take care of it, and that a nurse would be provided. Mrs Bloe lodged answers, in which she averred that the petitioner had treated her with great cruelty both before and after the birth of the child, and in particular had struck her on various occasions with his fist, that he had called his child a great nuisance, and had said that he wished to get quit of it, and that finally he had insisted on her leaving the house, and on her doing so had acquiesced in her taking the child with her. She averred that at the date of the answers (11th Feb. 1882) the child was not yet weaned, and produced a medical certificate to the effect that its removal at that time would be dangerous to its health. She submitted that the respondent was not a fit person to have the custody of the child, and averred that it was his intention to remove to England and deprive her of all access to it,

Page: 596↓

The petition was allowed to stand over till the Summer Session.

The petitioner argued that his right as father to the custody of his child was clear, unless the respondent took steps to obtain a judicial separation with right of custody of the child.

The respondent moved for a proof of the statements in the answers, which, if true, would show that the petitioner was not a fit person to have the custody of the child.

Judgment:

At advising—

Lord President—I think that the law and practice in this matter are well settled, and I do not see how we can refuse the prayer of this petition, subject of course to proper conditions as to the wife's access to the child. The wife is living in separation without the consent of the husband, and, indeed, against his protest. She has taken no means to get a judicial separation, and, in short, no means to justify the position she has taken up. In these circumstances the custody must be given to the father, unless the mother shows that the health or morals of the child would be placed in peril by its being in the custody of the father. Here we are bound to grant the father's petition subject to proper conditions as to the mother's access.

Lord Deas—I am of the same opinion. We have no choice in the matter. The petitioner admits he has been to blame in the way he has treated his wife, but that will not lead to the conclusion that without a separation the wife can demand the custody of the child. If her complaints are to be seriously persisted in there is no way for her but a process of separation.

Lord Mure—I am of the same opinion. I think that however relevant the wife's statement would be in a process of separation, they are not relevant in such a petition as the present.

Lord Shand—If this case had been disposed of at the date of presenting the petition in January or February last, I think the petitioner could not then have succeeded, for the child was not then weaned, and it might have been injurious to its health to remove it from the mother. But as the case now stands, I think it is ruled by the authorities cited at the bar that the husband, though not entitled to have the petition granted at the date at which he presented it, is entitled to have it granted now.

Lord Deas—I agree with Lord Shand in thinking the question would have been different as at the date of the presenting of the petition.

Guthrie, for respondent, moved for expenses.

Rhind, for the petitioner, objected to expenses being granted. It was not matter of course that a husband should in a petition for custody of children have to pay the expenses of the wife—Fraser on Husband and Wife; Lang v. Lang, January 30, 1869, 7 Macph. 445; Symington v. Symington, July 16, 1875, 2 R. 974.

Lord President—In this particular case we think the wife should have expenses. The husband's petition was premature.

The parties being agreed as to the access to be afforded to the mother, the Court found the petitioner entitled to the custody of the child, subject to its being sent to the mother's residence one day in each week from 11 to 6, and to her being entitled to visit it at the petitioner's residence at such times as she might choose.

Counsel:

Counsel for Petitioner— Rhind. Agent— W. Officer, S.S.C.

Counsel for Respondent— Guthrie. Agents— Henderson & Clark, W.S.
1882