Scottish Court of Session Decisions

This action was raised in August 1886, in the Sheriff Court at Ayr, by Ann Hammel against Mrs Shaw and her husband Charles George Shaw, for delivery of her illegitimate son, aged four years. A supplementary action was thereafter raised against Miss Shaw, daughter of Mr and Mrs Shaw, and the two actions were conjoined.

In March 1883 the pursuer and her illegitimate son, John Ingram Hammel, had been received as inmates of the Ochiltree Convalescent Home, of which the defender Mrs Shaw was an active supporter. Thereafter the pursuer was sent to a situation, and her child was, with her consent, placed in a home for boys in England. While the actions were pending the pursuer died leaving a settlement by which she left her whole estate to James Brand, contractor, Glasgow, in trust for her son. She also appointed James Brand to be his tutor, curator, and guardian.

The Sheriff-Substitute ( Orr Paterson), in respect of a minute lodged for James Brand, sisted him, on 2nd February 1887, as pursuer in the conjoined actions, “reserving all objections to his title.” The defenders in an amendment to their record stated that “the settlement produced by James Brand (who has been sisted as pursuer, under reservation of all objections to his title to insist in this action) confers on him no title to insist therein. The original pursuer, as the mother of an illegitimate child,

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had no legal power to appoint the said James Brand or any other person tutor to her child. The said James Brand has no legal status or right, through kinship or other right, to the custody of said child. The pursuer had no means or estate whatever at the time of her death. She was dependent on the charity of others. The said James Brand, if known to her at all, was only known to her by name, and his name, it is believed, was inserted in said document on the suggestion of those who surrounded the deceased during her last illness.”

The pursuer pleaded—“(4) The defenders having no right or title to retain the custody of the child in question, and the pursuer Brand being duly appointed tutor, curator, and guardian to it by its mother, is entitled to an immediate order for delivery of the child as craved, with expenses.”

The defenders pleaded—“(1) The action is incompetent in the Sheriff Court. (5) The pursuer Brand having no title or interest to insist in the present proceedings, and the document founded on by him having conferred no such title or interest, the defender should be assoilzied, or the action dismissed with expenses. (6) Separatim, the right to insist on the cravings of the petition not being transferable, the defender should be assoilzied, or the action dismissed with expenses.”

The Sheriff ( Brand) on 16th April 1887 adhered to the interlocutor of the Sheriff-Substitute of 2nd February 1887, and remitted to him to proceed.

The Sheriff-Substitute on 24th May 1887 allowed a proof before answer.

The pursuer appealed to the Sheriff, who on 29th September 1887 recalled the interlocutor of the Sheriff-Substitute, found, under reference to the annexed note, that the action was incompetent, and dismissed the same; and found James Brand liable in expenses to the defenders.

“ Note.—It appears that Ann Hammel, who died in or about November 1886, had in August of that year raised the present action in this Court against the defender Mrs Shaw, concluding for delivery to her of her child John Ingram Hammel, described as then in the custody or under the control of the said defender. In September thereafter a supplementary petition was brought by Ann Hammel against the other defender Miss Shaw, with a similar conclusion, and these actions were conjoined by the Sheriff-Substitute. Sometime after Hammel's death, Mr Brand craved by minute to be sisted as pursuer in room of the deceased. This motion was made in respect of a settlement by the deceased dated 31st August 1886, of which a copy has been produced. By that deed she bequeathed her whole means and estate in trust for her said son to Mr Brand, and appointed him her sole executor and tutor, curator, and guardian of her son. The motion to have Mr Brand sisted was opposed, but by interlocutor of the Sheriff-Substitute was granted, and this judgment was adhered to on appeal, under reservation, however, of all objections to Mr Brand's alleged title. Since then the Sheriff-Substitute has pronounced an interlocutor allowing a proof, and against that interlocutor the present appeal has been taken by Mr Brand, who in his reclaiming petition maintains that inquiry is unnecessary, and that, having regard to the settlement, there is no room for any judgment save a decerniture in terms of the conclusions of the first petition. In their answers the defenders contend that as the action has been raised to determine the permanent custody of a pupil child it is incompetent in the Sheriff Court, which, it is said, can only deal with questions of interim custody arising on emergency. On the other hand, it is argued for Mr Brand that under the Guardianship of Infants Act 1886 (49 and 50 Vict. c. 45), and particularly section 3 (1), there is conferred on the Sheriff, the jurisdiction requisite to deal with a case like the present. On the question whether apart from the Act the Sheriff has jurisdiction in this case to make an order for permanent custody there is no room for serious doubt. The suggestion that there is emergency is out of the question. The protection and guardianship of infants is, as Lord Fraser says (Parent and Child, p. 131), ‘the peculiar province of the Court of Session as the Supreme court of equity, and to that Court must application be made in regard to all questions as to the custody of bastards. The Sheriff has power to decide as to their temporary custody where any sudden contingency prevents an application to the proper court.’ See also page 222.

This passage fully sets forth the rule of law as to jurisdiction, and the various cases on the matter which the Sheriff has examined do not modify or vary the rule as now stated. See the cases of Buchan v. Cardross, May 27, 1842, 4 D. 1268; Lang, June 30, 1849, 11 D. 1217; Harvey v. Harvey and Others, June 15, 1860, 22 D. 1209; Muir v. Kerr, July 18, 1868, 6 Macph. 1125; and Hood v. Hood, January 24, 1871, 9 Macph. 449. There may, it is true, be a question whether the Sheriff has power to interfere to enforce or protect the legal title of a parent of lawful children—Dove-Wilson, 3rd ed., p. 60—but no such question exists here. As an instance of procedure in the competent Court in reference to the custody of an illegitimate child, reference may be made to the case of Macpherson v. Leishman, June 4, 1887, 14 R. 180. Taking it accordingly as sound law that jurisdiction does not exist apart from statute, has it been conferred by the Guardianship of Infants Act? The result of an examination of its provisions has been to satisfy the Sheriff that it does not apply to illegitimate children. The preamble sets forth that it is expedient to amend the law relating to the guardianship and custody of infants, or as by the 8th section the word ‘infants’ is to be read in Scotland, of ‘pupils.’ This means infants or pupils lawfully begotten. The second section makes mothers the guardians of infants on the father's death, but it is trite law that an illegitimate child has no father, and to illegitimates therefore the second question cannot apply. Section 3 (1) contains the provision specially founded on by Mr Brand. It sets forth that ‘the mother of any infant may by deed or will appoint any person or persons to be guardian or guardians of such infant after the death of herself and the father of such infant (if such infant be then unmarried), and where guardians are appointed by both parents, they shall act jointly.’ But it is clear from these words that the infant or pupil referred to is a person who has a father and mother, or, in other words, has been lawfully begotten. Further, by section 3, where

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guardians are appointed by both parents, they are to act jointly, but a father has no right to appoint a tutor to an illegitimate child, and therefore the father of the child referred to in the Act must be the father of a child lawfully begotten. As Bell says (section 2071)—‘A natural child has no recognised father, and so his reputed father cannot appoint tutors,’ &c. A reference to the 7th section adds force to the view now stated. It provides for the case where there is a decree of judicial separation or a decree of divorce, and enacts that the Court pronouncing such decree may declare the guilty parent unfit to have the custody of the children, if any, of the marriage, &c. This section dealing with persons married, but afterwards judicially separated or divorced, must be taken as following on sections dealing also with persons who had entered into the marriage relation and had not been divorced or separated. It may be added that had it been intended that the Act should apply to illegitimate children it would have contained a provision to that effect. The view now taken renders it unnecessary to offer any opinion on various other questions raised, and in particular whether Mr Brand was validly appointed, and whether the action with its personal conclusion for delivery to the deceased when alive can be transferred into an action for delivery to Mr Brand. On the whole matter the Sheriff is of opinion that he has no jurisdiction in the present case.”

The pursuer appealed to the First Division of the Court of Session, and argued—At the date of the action the mother had the legal right to the custody of the child— Macpherson v. Leishman, June 4, 1887, 14 R. 780; Sutherland, Dec. 22, 1887, 25 S.L.R. 189; Godeby, July 7, 1815, F.C. The Sheriff had jurisdiction to determine the question of the custody of the child— Herd, Aug. 20, 1864, 3 Scot. Law Mag. 143. The settlement appointing Brand executor and guardian should receive effect— Johnstone, 1785, M. 16,374; Whitson, May 28, 1825, 4 S. 42. [Lord President—To bring yourself under the authority of these cases you must show that the mother left estate.] The Guardianship of Infants Act 1886 (49 and 50 Vict. c. 45), sec. 3, sub-sec. 1, and sec. 5 applied, and if so, the mother had a right to appoint Brand as guardian. The Statute 1555, c. 35, had been held to apply to bastard minors— Wilson, March 10, 1819, F.C.; Kyle, 23 D. 1104. The result contended for was supported by the Statute 1672, c. 2, and the statute 1696, c. 8. Hardships would ensue if such an application could not be made to the Judge Ordinary, because it could not be presented in the Bill Chamber during vacation.

Argued for the respondents—The Sheriff had no jurisdiction—Fraser on Parent and Child, p. 121. There was no authority for the view that actions for the custody of bastards could be brought in the Sheriff Court— Lang v. Lang, 11 D. 1217—the question was waived in that case. In Hood v. Hood, Jan. 24, 1871, 9 Macph. 449, the question was merely raised, not decided. There was no section in the Act in which the father was not mentioned. [Lord President—Supposing it did apply, what do you make of “Court” including Sheriff Court?] The Sheriff had neither at common law nor under statute jurisdiction to entertain such an action. Brand must appear either as executor-nominate or as tutor-nominate. He could not sue in the former capacity, because there was no estate, and therefore he must plead the other. But there was no authority for the mother of a bastard nominating a tutor to it. An application similar to the present could be made in the Bill Chamber—Earl of Buchan v. Lady, May 27, 1842, 4 D. 1268.

At advising—