Scottish Court of Session Decisions

This was an application under the Guardianship of Infants Act, 1886, by Mrs Rosa Elizabeth Maclaine or Rankine or Maquay, widow of the deceased William Macbean Rankine of Dudhope, in the county of Forfar, and wife of William Maquay, banker in Florence, for the custody of the two daughters by her marriage with Mr Rankine, both of whom were in pupillarity, and who were at the date of the application residing with their uncle John Campbell of Kilberry, Argyllshire, the sole surviving tutor nominated by their father in his marriage-contract. Mr Campbell opposed the application, which was made in the following circumstances:—Mr and Mrs Rankine were married on 8th July 1874. By antenuptial contract of marriage, dated 4th July, and recorded 13th August 1874, Mr Rankine appointed tutors and curators to the children of the marriage. At the date of the present application the sole surviving and acting tutor was Mr Campbell. Three children were born of the marriage—Violet Campbell Rankine, born 28th April 1876; Walter Lorne Campbell Rankine, born 4th July 1877; Muriel Campbell Rankine, born 25th September 1878. William Macbean Rankine died on 31st October 1879.

In July 1884 Mrs Rankine married Mr William Maquay, a British subject residing in Florence, a partner in the banking house of Maquay, Hooker, & Co., who carried on business in Florenoe and elsewhere in Italy. At the date of the petition the children were residing with or under the charge of Mr Campbell of Kilberry, and he refused to allow them to reside with their mother at Florence.

The present petition for the custody of the two girls was presented by Mrs Rosa Rankine or Maquay, in which she averred that owing to Mr Campbell's refusal to allow the children to reside with her she was only able to see them at long intervals; that Kilberry was in a remote district of Argyllshire, where the girls were far from all educational centres, while in Florence they would have every advantage. With regard to the boy, he being at school, all that the petitioner asked in the prayer of the petition was that arrangements should be made for his spending a part of his holidays with her. This part of the petition was not insisted in, as appears from the opinion of the Lord President infra.

Mr Campbell in his answers stated that the petitioner was permanently settled in Florence, and that the children were being brought up with his own children, the girls under a resident governess, while the boy was placed at a preparatory school in England along with his own son. The respondent objected in the interest of the girls to their being sent out of the country, and out of the jurisdiction of the Court, and averred that their father had objected to the children, being brought up abroad.

The Guardianship of Infants Act, 1886 (49 and 50 Vict. cap. 27) provides, sec. 2—“On the death of the father of an infant, and in case the

Page: 400↓

father shall have died prior to the passing of this Act, then from and after the passing of this Act, the mother, if surviving, shall be the guardian of such infant, either alone when no guardian has been appointed by the father, or jointly with any guardian appointed by the father.” Section 3, sub-section 3, provides—“In the event of the guardians being unable to agree upon a question affecting the welfare of any infant, any of them may apply to the Court for its direction, and the Court may make such an order or orders regarding the matters in difference as it shall think proper.” Section 5 provides—“The Court may, upon the application of the mother of any infant (who may apply without next friend) make such order as it may think fit regarding the custody of such infant, and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent, or, after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother, and the liability of the father for the same or otherwise as to costs as it may think just.”

Argued for the petitioner—The petitioner was entitled to the custody of her two daughters. The Guardianship of Infants Act created the petitioner joint guardian of the children along with the respondent, and it was not suggested that there was any valid reason for her not having the custody of the girls, who were still in pupillarity. No imputation had been or could be made against the petitioner's character. The only allegation was that she was resident in Florence, and out with the jurisdiction of the Court. This was no reason for refusing the petitioner her legal rights.

Replied for the respondent—The petitioner by her second marriage lost by the common law of Scotland her tutorial powers—Ersk. i. 7, 12. By her second marriage she came under the tutorial powers of her husband, and could not competently be tutor to others. The petitioner desired to remove these children from Scotland against the known wish of their father, and to educate them abroad. Owing to the petitioner's second marriage the statute referred to did not apply. It gave the mother a joint tutorial power along with any tutor-nominate by implication so long only as she continued a widow— Spiers, Dec. 23,1854, 17 D. 289; Stuart, March 20, 1861, 23 D. 779.

At advising—