Scottish Court of Session Decisions

This was a petition by Colonel James Stevenson of Braidwood, in Lanarkshire, for delivery and custody of the children of the marriage between him and Mrs Florence Louisa Gibbs or Stevenson, viz., Samuel, born in May 1886, and Adela and Laura, born in June 1887 and March 1889 respectively.

The petitioner stated that his wife had left his house of Braidwood, taking the three children with her, ostensibly for the purpose of visiting her parents, on 20th March 1893, that she had thereafter, upon entirely unfounded and frivolous grounds, raised a suit against him in the English Courts for judicial separation, and that she had refused to deliver up the children or to return to him except upon condition that she should have the custody and control of the children, which he declined to give her.

Answers were lodged for Mrs Stevenson. She founded on section 1 of the Custody of Children Act 1891, and also on section 5 of the Guardianship of Infants Act 1886, and opposed the petitioner's demand “on the ground that it will endanger the health and morals of the children to award him such custody, and also on the ground that, having regard to the welfare of the said children, to the conduct of the petitioner, and to the wishes of the respondent, it is inexpedient that any order should be pronounced awarding the custody of the children to the petitioner.” She further maintained that the petition should be refused “in respect that the petitioner has neglected and taken no interest in the said children, and in particular has allowed them to be brought up by the respondent at her own expense for such a length of time, and under such circumstances as to deprive him of any ground for alleging that he has in any one particular duly discharged his parential duties.”

In support of these grounds for opposing the petition the respondent made statements to the following effect—The petitioner had married her as his third wife. His whole available income was swallowed up in supporting the younger children of his first marriage. He had never contributed anything to the support of the respondent or her children. They had been supported out of an allowance of £600 settled on the respondent by her father. Soon after the marriage the petitioner had begun to treat her with cruelty and unkindness, and on certain specified occasions he had used personal violence towards her. In consequence of the petitioner's conduct towards her the respondent had become so ill in 1886 that her mother had insisted on her paying her parents a visit, and she was permitted to do so by the petitioner. She accordingly left her husband's house with her children on 3rd December 1886, and from that time she remained with her children at her parents until 23rd May 1892. During this period the petitioner frequently visited her, but he showed no interest in his children and contributed nothing to their support during this whole time. The respondent's father frequently urged the petitioner to provide a suitable residence for his wife, and as an additional inducement increased the respondent's allowance to a £1000 a-year. The result was that an arrangement was made that the petitioner and respondent should make their residence at Braidwood, and the respondent went there with her children in May 1892. Since then the petitioner had frequently threatened her and used abusive and insulting language towards her, and had on occasions specified treated her with personal violence. He frequently used bad language before his children, and the eldest child had begun to learn the habit. The respondent would have left the petitioner

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on account of his conduct towards her, but for his stating that if she did so he would retain the children. In March 1893 she asked the petitioner's leave to go with the children to visit her parents on the ground of impaired health, and in order to procure his consent she agreed that her visit should be limited to a few weeks. Shortly after leaving Braidwood she intimated that she could not return to him, and instituted a suit for separation in the English Courts.

“It is absolutely essential to the health and well-being of the children that they should continue to reside with the respondent. The petitioner has shown no affection for the children, and has taught them to use profane and blasphemous language by habitually using it in their presence. He has shewn no care of them when ill. Further, he has on some occasions treated the children with actual cruelty. In particular, on one occasion in the course of the winter 1892–93, he stamped violently with his shooting boots upon the foot of the son of the parties causing it to swell and become inflamed; on another occasion he thrashed the elder daughter in a severe and painful manner; while at other times his conduct has been such as to alarm and terrify the children. In short, he is of a very excitable nature, and when excited is apt to act even towards his children in a violent manner.”

He had no income, and had repeatedly asserted that if the respondent left him he would send the children to a board school.

Argued for the petitioner—It was settled that the father was the natural custodian, the right to have the custody of the children being originally part of the patria potestas. The Court would only deprive the father of the custody if it were shown that the children would suffer in life, health, or morals— Lang v. Lang, January 30, 1869, 7 Macph. 445; Steuart v. Steuart, June 3, 1870, 8 Macph. 821; Symington v. Symington, March 18, 1875, 2 R. (H. of L.) 41; Sleigh v. Sleigh, January 20, 1893, 30 S.L.R. 272. The Guardianship of Infants Act might give the Court a freer hand, but the considerations were the same now as before— per Lord M'Laren in Sleigh v. Sleigh, 30 S.L.R. 275. The fact that a man had treated his wife cruelly had not been held a sufficient reason for depriving him of the custody of his children— Lang v. Lang, supra; Steuart v. Steuart, supra; Beattie v. Beattie, November 10, 1883, 11 R. 85. Nor was the fact that a man was alleged to have no income a reason for taking his children from him— Mackenzie v. Mackenzie, March 5, 1881, 8 R. 574. The respondent had not relevantly averred that the children were in any physical or moral danger in their father's house, and she was in an unfavourable position as she had taken the law into her own hand and got them into her own custody by deceit. The petition should accordingly be granted.

Argued for the respondent—The respondent's averments were relevant to show that if left in the petitioner's custody the children would be in danger of physical and moral injury. Further, according to recent English decisions, where a man had treated his wife with cruelty, the Court would award her the custody of the children, even though the cruelty had not been sufficient to justify a judicial separation— Smart v. Smart, L.R. 1892, App. Cas. 425; in re Elderton, 1883, L.R., 25 Ch. Div. 220. There was nothing inconsistent with these decisions in Sleigh or the other cases quoted by the petitioner. The petition should therefore be refused.

At advising—