Scottish Court of Session Decisions

Now, if this action of separation which has been raised had contained allegations against the moral character of the husband, or to the effect that his association with the child would be detrimental to its physical or moral welfare, and if those allegations had been pointedly and well made, I do not say that I would not have been prepared to accede to this motion. I find, however, nothing but allegations of cruelty following on threats and bad language; and even supposing that these are proved, and that decree of separation is granted upon the ground of that cruelty, it seems clear upon authority, and especially having regard to the case of Lang, that that decree would not be a good answer to a petition by the father for custody of the child.

I think therefore that this motion must be refused, for otherwise it would imply a departure from the course followed in previous petitions.

Lord Deas concurred.

Lord Mure — I agree with your Lordships. If there were in the action of separation and aliment a relevant allegation against the character of the father, against his fitness to take charge of the child on account of his moral character, I should not say that I would not be disposed to sist the petition until the facts were investigated in that action. That is what was done in the case of M'Farlane. There the Court were of opinion that the facts should be ascertained. But here we have no allegations of that sort, and therefore I think the petition should be granted.

Lord Shand—I am of the same opinion, for notwithstanding the able argument of Mr Murray, I think the petitioner has failed to distinguish this case from the cases of Bloe, Lilley, and Lang.

In Lang's case it was held, even after decree of separation and aliment on the ground of cruelty, that the father was entitled to the custody of two pupil children. Here we are asked to sist this petition till the action is decided, but even if it be assumed that the mother will succeed in the action, still prima facie on the case of Lang the father will be entitled to the custody of the children. That being so, we could not refuse this petition unless we were to go back upon the cases which have been decided, and throw doubt upon the decision in the case of Lang, which I am not prepared to do.

The Court pronounced this interlocutor—

“Find that the petitioner is entitled to the custody of the child of the marriage between him and the respondent: Therefore ordain the respondent forthwith—that is to say, on Friday next at 12 o'clock noon—within the Grand Hotel, Glasgow, to deliver up the said child to the petitioner, or to anyone authorised by him to receive delivery; but reserving to the respondent right of access to the said child, viz.—The petitioner to send the child to the respondent in the Royal Hotel, Princes Street, Edinburgh, on a visit to her once a week on any day she may select, to remain with the respondent from 11 a.m. to 6 p.m., the whole expenses incidental to such visits being defrayed by the respondent, and 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 hereafter move the the Court in the event of any change of circumstances: Find no expenses in the cause due to either party.”