Scottish Court of Session Decisions

Subject_1Custody of Children
Subject_2Petition by Nearest Male Agnate
Subject_3Religion of Deceased Father. Headnote:

Three orphan children, who were in pupillarity, were placed by their maternal grandmother in a charitable institution not Roman Catholic. Shortly afterwards the uncle of the children—their nearest male agnate— presented a petition to the Court to have them given into his custody, in order that he might place them in an orphanage where they could be brought up in the Roman Catholic faith. He alleged that their father had been a Roman Catholic, that they had been baptised by a Roman Catholic priest, and had been intended by their father to be brought up in that faith. The petition was served upon the children's maternal grandfather, who did not lodge answers, and who had previously written refusing to have anything to do with the children. Answers were lodged by the manager of the institution. It was not alleged that the material interests of the children would be affected by their remaining where they were or being removed to the Roman Catholic Orphanage. After hearing parties the Court expressed the opinion that the prayer of the petition should be granted, in respect that the statements in the petition were not disputed by any relation of the children, and that they were satisfied that the children's father had been a Roman Catholic, and had intended his children to be brought up in that faith. Before the interlocutor following upon this opinion had been signed, a minute was lodged by the grandfather of the children craving the Court to allow him to adopt the answers of the respondent, or to order re-delivery of the children into his own custody. The Court granted the petition of the nearest male agnate, being of opinion that the intervention of the minuter was not bona fide.

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Charles Hamilton Reilly, labourer, Glasgow, died on 16th September 1892 leaving a widow and three children—Charles Hamilton Reilly, born on 22nd May 1892, William Sheridan Tottingham Reilly, born 12th July 1884, and Amelia Reilly born 23rd March 1892. The children lived with their mother till her death on 14th November 1894. On 21st November, after her death, they were placed by their maternal grandmother, Mrs Barry, in one of the Orphan Homes of Scotland, Bridge of Weir, Renfrewshire, under the management of Mr William Quarrier.

On 24th November 1894 Peter Reilly, the children's uncle, wrote to Mr Barry (the children's maternal grandfather) and Mr Quarrier requesting that delivery of the children should be made to him, and offering to submit a satisfactory scheme for their maintenance. Mr Barry replied— “With reference to the children therein mentioned, I have had nothing to do with any arrangement regarding them. I may mention that I discountenanced their mother (my daughter) for having married a Roman Catholic, and except on very rare occasions I have never exchanged words with her.” … Mr Quarrier replied refusing to give up the children.

On 22nd January 1895 a petition was presented to the Court by Peter Reilly, uncle of the children, to “ordain the said William Quarrier forthwith, and at such time and place as your Lordships may fix, to deliver up the said children to the petitioner or any other person having his authority.” …

The petitioner averred—“The deceased Charles Hamilton Reilly, the children's father, lived and died as a practising member of the Roman Catholic Church, and was buried in a Roman Catholic cemetery with the rites of said Church. He was attached to his religion, and desired and intended that his children should be brought up in it. He caused them all to be baptised by a Roman Catholic priest, and to be instructed in the tenets of said church. The two elder children regularly attended St Mary's Roman Catholic School, Abercromby Street, Glasgow. Mrs Reilly, though not a Roman Catholic, respected her husband's wishes in regard to the children's religious upbringing, and continued, after his death, to send them to the same school, where religious instruction was regularly given them. In fact, Mrs Reilly and the children attended St Mary's Roman Catholic Church, Abercromby Street, Glasgow, before and after the father's death. The eldest child made his first communion on 30th November 1893. Mr Quarrier's Homes, above referred to, though described by him as unsectarian, are institutions of a distinctly Protestant character. The children are educated as Protestants, and attend Protestant religious services. They are not allowed to be instructed in the doctrines of the Roman Catholic Church or to attend the services, or observe the religious practices of that church.”

The petitioner maintained that Mr Quarrier ought not to be allowed to override the wishes of the parents in regard to the religious instruction of the children, and undertook to place them in Smyllum Orphanage, Lanark, a Roman Catholic establishment.

The petition was served upon Mr Barry and Mr Quarrier. Answers were lodged only by Mr Quarrier.

The respondent averred that Charles Hamilton Reilly, the father of the children, though he belonged to a Roman Catholic family, never went to chapel, and was in the habit of declaring that he believed in neither Catholicism or Protestanism; that he was married by a Protestant clergyman, and attended services in a Protestant mission; that neither the father nor mother were present at the baptism of their children, and that these had been sent to a Roman Catholic School only on the understanding that books and other things would be supplied free, and that except for two years they had attended Protestant and Board schools. That on his death their father had committed the children to the charge of their mother, who was a Protestant, and who before her death charged her mother to bring up her children as Protestants. He averred further that the Homes and the instruction therein was wholly unsectarian. He stated that the children had been handed over to him by their maternal grandparents, who, as nearest cognates, alone had any right to their custody.

The respondent maintained that “in the circumstances it is submitted that it is not for the interests of the children that they should be handed over to the petitioner, and that the wishes of their parents in regard to the religious instruction of the children being in no way disregarded by the education and upbringing they receive in the Homes, which are not foreign to, but, on the contrary, consistent with such training as they received during the whole, except two years, of their lives in the Protestant and Board schools they attended.”

Argued for the petitioner—The petitioner was the nearest male agnate, and had therefore a good title to the custody of the children— Morrison v. Quarrier, June 9, 1894, 21 R. 889, at p. 892. Mr Quarrier had no lawful title, and the case was thus distinguished from Morrison v. Quarrier. The admitted facts showed the father was a Roman Catholic, and intended his children to be brought up in that faith. The Lord President, in the second case of Morrison v. Quarrier, July 19, 1894, 21 R. 1071, pointed out the importance of the religion of the father, and the strong presumption to be drawn therefrom as to his intentions for the children.

Argued for the respondent—There should in any view be an inquiry into the facts of the case, and a curator appointed to the children. This was a peculiar case, for the persons entitled to the custody of the children, viz., their grandparents, the nearest cognates, had placed them with the respondent, and did not complain of their treatment. No ground had been

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stated for the proposed change, except the religious education of the children, and there was no case where this had been held a sufficient consideration without other strong reasons existing.

At advising—