Scottish Court of Session Decisions

The Custody of Children Act 1891 (54 and 55 Vict. cap. 3), sec. 1, provides—“Where the parent of a child applies to the High Court or the Court of Session for a writ or order for the production of the child, and the Court is of opinion that the parent has abandoned or deserted the child, or that he has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the child, the Court may in its discretion decline to issue the writ or make the order.” Sec. 3. “Where a parent has (a) abandoned or deserted his child, or (b) allowed his child to be brought up by another person at that person's expense, or by the guardians of a poor law union, for such a length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties, the Court shall not make an order for the delivery of the child to the parent unless the parent has satisfied the Court that, having regard to the welfare of the child, he is a fit person to have the custody of the child.”

In November 1891 Mary Mackenzie, residing in Brechin, raised an action in the Sheriff Court at Forfar against Alexander Keiller, bleachfield worker, Friockheim, concluding that the defender should be ordained to deliver up to the pursuer the illegitimate female child Jane Mackenzie, of which she was delivered on 7th March 1885, and also for interdict against the defender interfering with the pursuer's possession and custody of the child.

The pursuer averred that some weeks after the birth of the child she placed it in the custody of the defender and his wife, and that they had maintained it from that time, but having been for some years anxious to regain possession of her child, she had required the defender to deliver her up, but that he had refused.

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The defender averred that in April 1885 the pursuer had given the child into his custody, and stated she would have nothing more to do with her; that the defender and his wife had maintained the child on the understanding that the pursuer had given up all her claim; that she was not in a position to keep properly the child, who had been well kept and cared for, and would suffer greatly from being removed. The defender also averred that he had expended in clothing and maintaining the pursuer's child from April 1885 to September 1891 the sum of £96, 16s., and had received from the mother only £48, 0s. 6d., leaving a balance of £48, 15s. 6d. due to him.

The defender pleaded—“(3) The pursuer having allowed her child to be brought up by the defender, and having been unmindful of her parental duties, she is not entitled to have the custody of the child. (4) The action is not competent in the Sheriff Court, and ought to be dismissed, with expenses.”

Upon 28th December 1891 the Sheriff-Substitute ( ) found that the petition “being one for the permanent custody of a bastard, is incompetent in the Sheriff Court.”

“ Note.—This is the first petition of its kind I have seen in the Sheriff Court. In Fraser's book on Parent and Child, p. 81, I find the following remarks on the custody of children—‘The Court to which application should in Scotland be made is the Court of Session, as the supreme court of equity of the country. The Sheriff has no power to deal with the matter of permanent custody, but in cases of emergency the judge ordinary of the bounds can, on a summary petition, regulate the interim custody of the children—a jurisdiction which is often asserted.’ The Sheriff Court case of Sharp v Jack, 3 Scot. Law Jour. 78, is referred to.

In the present case a permanent custody of the child is asked for; not merely an interim custody until further investigation. And what is important also, I am am asked to take the child away from the parties to whom the petitioner herself gave it, and with whom it has remained for years with her express approval.

Now, I cannot doubt the power of a mother to put an end to an arrangement of this sort, a power which when exercised may, it is true, cause great distress to those who have brought the child up, and have become attached to the child; a power also which may be productive of immense harm to the child itself. But still it is a power which is inherent in the natural instinct of a mother, and which is of irresistible force.

This has led to legislation in order to mitigate the distress this power sometimes gives rise to. Last March an Act was passed to amend the law relating to the custody of children, and to restrain a mother's power of demanding under all circumstances the custody of her child. The first clause begins thus—‘When the parent of a child applies to the High Court or the Court of Session for a writ or order for the production of a child.’ Why is no notice taken of the Sheriff Court? Clearly because such a writ or order is incompetent there, and this omission corroborates the view I take of the present petition, namely, that I have no power to entertain it.

Had this child been taken by some person from the mother's custody, possibly an interim application for its return pending investigation would be competent in the Sheriff Court, and the cases I have been able to trace are of this nature. Restitution may be asked for, but not permanent custody. In Speid v. Webster, December 18, 1821, 1 S. 221, the Sheriff accordingly refused to interfere.

I may also refer to Fraser on Parent and Child, p. 131. He says—‘The protection and guardianship of infants is the peculiar province of the Court of Session, and to that Court must application be made in regard to all questions as to the custody of bastards.’

While therefore I hold that this petition is incompetent, it may be proper to point out that a contrary view was taken in the Sheriff Court case Herd v Ellis, August 20, 1864, 3 Scots Law Mag. 143.”

Upon 26th January 1892 the Sheriff ( ), on appeal, pronounced this interlocutor:—“Recals the interlocutor appealed from, repels the defender's fourth plea-in-law, and decerns.

“ Note.—The application by the mother of an illegitimate child for delivery of it to her custody is prima facie a just and legal demand, and one which can competently be entertained in the Sheriff Court— Brand v. Shaws, 15 R. 449. The Sheriff has no power to regulate the permanent custody of a child where an appeal is made to his discretion. Such discretion can only be exercised by the Supreme Court. The power of the Sheriff is limited to giving effect to the undoubted legal title of the mother, or, in a case of emergency, to make temporary orders as to the custody.”

Upon 5th February the Sheriff-Substitute refused the motion for proof, and granted the prayer of the petition “until a permanent arrangement is made by a competent court.”

The defender appealed, and argued—Under the Custody of Children Act 1891 application for the custody of a child must be made to the Court of Session. The Sheriff has no power to deal with the question. In all these matters the principal thing that the Court would look to was the permanent good of the child. Here it was averred that the mother had deserted her child and allowed her to be brought up by other persons; that was a reason under the Act for refusing to give the parent the custody of the child she had deserted when she afterwards applied for it. It was further averred that the mother was not a proper person to have charge of a child, and no order should be made until proof had been taken on that question.

The respondent argued—The Act did not apply, although as the case had now come into the Court of Session it might be considered as if it had been originally begun

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there. The right of a mother to have the custody of an illegitimate child could not be destroyed unless the putative father claimed to have the custody and support of the child, and in the ordinary exercise of his discretion the Sheriff of the county was the proper person to apply to for an order for custody. The Court would not use its undoubted discretion to refuse the custody unless it appeared that the result would be injury to the health of the child. Here there was no reason to suppose such a thing, as the father was paying the aliment he was found liable in, and the mother was working and earning wages. This case did not fall under the Act, as the mother had not deserted her child, nor had she allowed her to be brought up at the expense of another person as she had contributed to her support more than the aliment paid by the father.

The Court remitted to the Sheriff-Substitute of Forfarshire to examine into the matter and report.

In his report Mr Robertson stated that he had visited the parties, and also had a conversation with the child herself. The report provided—“The mother Mary Mackenzie is a factory worker in Brechin; she is unmarried and has had three illegitimate children. I did not make out from her to what church denomination, if any, she belonged. The child is a sweet looking timid girl, well educated, and evidently much attached to the Keillers. She is quite happy with them, and has no wish to be with her mother. Indeed, when I mentioned the mother's name, the child only cried. I also visited the Keillers at their house in Friockheim. I first called on Mr Nicoll, Free Church clergyman there, who kindly went with me. He gave me a most satisfactory account of them. This was corroborated by all I said during my visit, which was quite a surprise visit. So that apart from any legal difficulty I have no doubt the child is better where she is than with the mother.”

At advising—