Scottish Court of Session Decisions

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Cite as: [1887] SLR 24_558_1, [1887] ScotLR 24_558_1

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SCOTTISH_SLR_Court_of_Session

Page: 558↓

Court of Session Inner House First Division.

Saturday, June 4 1887.

24 SLR 558_1

Vost or Macpherson

v.

Petitioner

Subject_1Parent and Child
Subject_2Illegitimate Child
Subject_3Custody
Subject_4Agreement.
Facts:

Held that the mother of an illegitimate infant child, in virtue of her absolute right to its custody, was entitled to cancel a temporary arrangement made with the father, by which the child was placed in his custody, for maintenance and education.

Opinions reserved upon the question whether the mother could have made a permanent arrangement so as to exclude her right.

Headnote:

This petition was presented by Mrs Jean Rollo Vost or Macpherson for custody of her infant illegitimate child under the following circumstances:—

On 13th November 1885 the petitioner, who was then Miss Jean Rollo Vost, and unmarried, gave birth to an illegitimate male child, of which Mr Septimus Leishman, C.E., Dollar, was the father. Miss Vost then raised an action of declarator of marriage against Mr Leishman, or otherwise for £3000 in name of damages and solatium, on the ground that the defender had seduced her. This action was settled, the pursuer receiving £1500, and consenting to the defender being assoilzied from the declaratory
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conclusions of the summons. Thereafter Mr Leishman was called upon to pay inlying expenses and aliment for the child, and on 10th July 1886 his agents wrote to the agents for Miss Vost as follows—“Mr Leishman is prepared to relieve Miss Vost of all expenses for the child's maintenance and education, &c., provided she consents to Mr Leishman having the custody of the child; and should she agree to that, Mr Leishman will not only take care that it be placed in charge of some competent person, but will also arrange for Miss Vost seeing it at short and stated intervals in order that she may be satisfied that it is properly attended to.” On 12th July Miss Vost's agents answered that letter thus—“We are in receipt of your letter of the 10th instant. Miss Vost is willing to hand over the child to Mr Leishman for maintenance and education; and so soon as a satisfactory place of residence has been procured by Mr Leishman for it, she will be prepared to give the child to any one whom he may send for it.… You will understand that this arrangement is made upon the assumption that Miss Vost is to have access to the child at short stated intervals in order that she may be satisfied that it is properly attended to.” Thereafter the child was handed over to the custody of Mr Leishman, and was by him put under the charge of a respectable nurse.

On May 13, 1887, the petitioner, who had in the meantime been married to Mr Finlay Macpherson, presented this petition for custody of the child. She stated that Mr Leishman was at present in Australia, and had no home to take the child to, and that the petitioner believed and averred that her child was “seriously suffering in health from the want of due attention and nourishment, and that its life will be endangered if it is not delivered up to her without delay.” She therefore craved the Court to find that she was entitled to the custody of her said illegitimate child, and to ordain the persons who had charge of the child to deliver it up to her.

Answers were lodged for Mr Septimus Leishman and Mr David Kier, his factor and commissioner, in which they founded on the arrangement come to in 1886. They stated that the child was in delicate health, and produced medical certificates to the effect that the child was being carefully attended to.

The petitioner argued—The mother has an absolute right to the custody of her illegitimate child so long at least as it is an infant, and to exclude that right it must be shown that the mother is unfit to take charge of her child. The petitioner's case is one of absolute right. It has been laid down that the father has no right to the custody of his illegitimate children. He must pay aliment for them, and when the child has attained a certain age he may claim to bring him up in his house, or decline to pay more, but that has nothing to do with custody. The mother cannot bargain to give up her rights—Erskine, i. 6, 56 (note); Goodly, July 7, 1815, F.C.; Kidston v. Smith, Dec. 16, 1773, 5 Br. Supp. 390; Corrie v. Adair, Feb. 24, 1860, 22 D. 897; Weepers v. Heritors and Kirk-Session of Kennoway, June 20, 1840, 6 D. 1166; Buie v. Stiven, Dec. 5, 1863, 2 Macph. 208 (Lord Justice-Clerk at p. 222); Shearer v. Robertson, Nov. 29, 1877, 5 R. 263; Symington v. Symington, March 18, 1875, 2 R. (H. of L.) 41. The observations of the Lord Chancellor in the last case were founded upon the operation of the Conjugal Rights Amendment Act, and so had no bearing here.

The respondent argued—Admitting that the mother's right to the custody of her infant illegitimate child is absolute, still here the mother had made an agreement with the father that the child was to be handed over to him for maintenance and education. The matter of custody was in the discretion of the Court. In this case the child, who was delicate, was being carefully brought up, and the father had made a settlement in his favour. If the mother had never parted with the custody of the child the case would have been different, but here she had done so, and there was no absolute rule in the law of Scotland that in such a case the child must be sent back to the custody of the mother to its own detriment. The precise case had never arisen in Scotland, but there was a case in England in which the question had been raised— The King v. De Manneville, May 12,1884, 5 East's Reps. 224; Rex v. Moseley, 5 East, 224, note; Eversley on the Law of Domestic Relations, 622; in re Crowe, an Infant, Ir. L.T. Rep., 1883, p. 72.

At advising—

Judgment:

Lord President—The arrangement which was made in this case appears to me to have been a very judicious one—that the child should be handed over to the custody of the father for its maintenance and education—and one cannot help regretting that the petitioner is desirous of putting an end to it. But she has the right to do so if she wishes. The right of the mother to the custody of her infant illegitimate child is absolute, and in ordinary circumstances the right would be at once enforced. But the peculiarity in this case is that an arrangement was entered into by which the father bound himself to provide for the child, and relieve the mother of all expense in regard to it, when it was given over into his custody. I (do not think, however, that this arrangement can be binding on the petitioner as a permanent one. Whether it would be binding on the putative father of the child or not is another question, which we have not got to deal with here, but it certainly cannot interfere with the legal right of the mother to the custody of her child. It is true that she consented to the arrangement by which the father took the custody of the child, but there is no provision in it for making that a permanent arrangement, and even if there had been, I doubt if the mother could effectually bind herself so as to give up the custody of her infant illegitimate child. I think we must grant the prayer of the petition.

Lord Mure—I am of the same opinion. The father of an illegitimate child has no right to its custody in the ordinary case, and the question here is, whether the mother could bind herself by an agreement by which she gave up the custody of her child? I think that she could not do so. I can come to no other conclusion, and must hold that the mother had a right to cancel this agreement whenever she so desired, and to resume the custody of the child.

Lord Shand—It is clear from the answers lodged that the petitioner had no ground for stating, as she does in the petition, that she “be

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lieves and avers that her said child is seriously suffering in health from the want of due attention and nourishment, and that its life will be endangered if it is not delivered up to her without delay.” That was a rash and unwarranted statement, and it is clear that the child would be well left where it is. The case here was put entirely upon the legal right of the mother to the custody of her child, which springs from her natural right, and I have come to the conclusion that when the mother says that she desires to have the custody of the child she has a right to get it. But I would wish to qualify that statement by saying that I think that the putative father would have a right to come to the Court and say that he ought to get the custody of the child, if he could show that the child was suffering in its health or was in danger of its life, because I think that the paramount consideration must always be the interest of the child.

Lord Adam—It is not disputed that the right of the mother to the custody of her infant illegitimate child is absolute, and if the custody is in the mother, there is nothing averred here against the petitioner's character to make it improper for her to exercise that custody. The question is, whether this arrangement between the mother and the putative father as to the custody and maintenance of the child interferes with her right? Now, I do not know how the case might have been if the mother had absolutely bound herself to give up the custody of the child for all future time. Perhaps it would not have been good in that case either, but I think it is clear that the mother is entitled to set aside this temporary arrangement.

The child was delivered up to the petitioner, and the Court thereafter dismissed the petition.

Counsel:

Counsel for Petitioner— Graham Murray. Agents— Macandrew, Wright, Ellis, & Blyth, W.S.

Counsel for Respondent— M'Kechnie— Mac—Watt. Agent— William B. Glen, S.S.C.
1887