Scottish Court of Session Decisions

This was a petition presented by Ann Sutherland, No. 77 Rose Street, Edinburgh, in which the Court was asked to find that she was entitled to the custody of her illegitimate child Ethel Kate Sutherland, who was born on 21st March 1886, and to ordain Jonathan Taylor, commercial traveller, residing at No. 78 Easter Road, Leith, with whom it was living, to deliver the child to her.

Taylor lodged answers, in which he stated that he was married, but childless, and that at a meeting between the petitioner and himself and his wife in May 1886 “it was agreed that the respondent should take the immediate custody of the child and adopt it permanently as his own. The petitioner distinctly and expressly agreed with the respondent that the child should remain permanently with him. The respondent took the custody of the child accordingly, and on 18th May 1886 he granted to the petitioner a written acknowledgment that he would maintain and bring it up respectably as his own, and at his own expense ‘in all time coming.’ The respondent and his wife have maintained and nursed the child ever since, and have become deeply attached to it. The arrangement thus come to was made with the entire approval of the child's father. On 9th June 1886 the respondent had the child baptised by the Rev. Dr Mitchell, minister of South Leith, of whose congregation the respondent and his wife are members. At the baptism the usual baptismal vows were undertaken for the future upbringing of the child. The child has been and is now extremely delicate in bodily health. In consequence it has not been able yet to be vaccinated. The doctor who has attended the child, on 8th November 1887 granted a certificate in the following terms:—‘18 Easter Road, Leith, November 8, 1887.—I have attended Ethel Kate Sutherland since July 22nd 1886 up to the present date. When I saw her at first she was in poor condition, and had a rash in some parts of her body.

I have treated her all along for congenital syphilis, and she has much improved under the treatment adopted. The child has been frequently under my observation, and I have always noticed that she has been well fed, well and warmly clothed, and has had all the care and attention that could be given to a child. She is at present suffering from bronchial catarrh, and could not be safely removed from her present home yet for two weeks.— George Guthrie, M.B., C.M.’

Since the respondent got the custody of the child, the petitioner has not had anything to do with it, and has not manifested the slightest interest in it. The respondent has ascertained, and now avers, that the petitioner is living in an attic in Rose Street; she has no visible means of supporting herself, and has no means to support the child, far less to provide it with the clothing, medicine, and other things essential for the preservation of its life and health in its present extremely delicate condition. It is believed and averred that it would be against the child's moral well-being if the petitioner had the custody of it. The father of the child has remonstrated with the petitioner against her seeking the child's custody, and has expressed his desire that the respondent should retain the custody, as he is satisfied that the respondent and his wife have been and are still giving it every possible attention and care. The petitioner has no affection for the child; she has no honest desire to have it with her; her only wish on the matter is to cause pain to the respondent and his wife.”

After hearing counsel the First Division appointed the petitioner to lodge a minute stating the facts as to her places of residence since the birth of the child, her present abode, and her means of maintaining the child if it should be delivered to her. The import of the minute lodged, and of the answers thereto for the respondent, appears from the opinion of the Lord President.

Argued for the petitioner—Such an agreement between the mother of an illegitimate child and a stranger only subsisted at the will of the mother— Macpherson v. Leishman, June 4, 1887, 14 R. 780. This was a stronger case than that cited, which was between the mother of an illegitimate child and the father. Even if the agreement in this case was permanent it was beyond the power of the petitioner. But it was not clear that it was permanent—[ Lord President—The averment of danger to the health and morals of the child is an element which was not in the case of Macpherson]. The petitioner was ready to take the child, and she was promised a home in her father's house— Queen v. Nash, 10 Q.B.D. 454; Nicolson v. Nicolson, July 20, 1869, 7 Macph. 1118; Buie v. Stephen, December 5, 1863, 2 Macph. 208.

Argued for the respondent—There were two points of distinction between this case and that of Macpherson—(1) There was here a permanent arrangement, and (2) there were allegations that the mother was not a proper custodier, and that she was destitute and unable to provide for the child. In the case of legitimate children this allegation was given effect to— Gulland v. Henderson, March 16, 1885, 5 R. 768; Muir v. Milligan, July 18, 1878, 6 Macph. 1125; Denny v. Macnish, January 16, 1863, 1 Macph. 268. The same principles applied to the case of illegitimate children. The statements in the minute showed seven changes of residence in two years. It did not set forth that the petitioner had any proper means of subsistence. The true question was what was for the benefit of the child.

At advising—