Scottish Court of Session Decisions

Lord President—In determining the question before us we must have regard to the circumstances under which our order of 30th January ordering Mrs Stevenson to deliver up the children became necessary. In her answers to the petition for delivery presented by her husband she admitted that the reason why the children were in England, and not in their father's house, was because she by trick had removed them, alleging the purpose of taking them on a visit while meaning to keep them away permanently.

We are now asked by the father to put the children, pending the appeal, into his house, where they would have been but for their mother's surreptitious removal of them.

I am in favour of granting the prayer of the petition. I should certainly not have acceded to the request if I had had reason to believe the interests of the children would suffer thereby, but all we are told, and that somewhat vaguely, is that they are in delicate health, and are not in a fit state to come to Scotland for what is called “the winter.” Colonel Stevenson will no doubt have due regard to his children's health, and will not take them to a climate injurious to it. I do not think we need do more than state what is his manifest duty, and which I have no doubt he will perform.

I have heard no adequate reason against granting this petition, and I think we best respect the status quo by restoring the children to the house from which they were surreptitiously removed.

As to the form of the petition, I think the petitioner has adopted a wrong style, and that the latter part of the prayer is only appropriate where search has to be made. This is evident from the reference to judges-ordinary in Scotland and their procurators-fiscal, and to magistrates in England, which indicates that extraordinary measures have to be resorted to. I think the proper course for us to adopt here is simply to follow out our previous order, which it is the defender's duty to obtemper, by granting the first part of the petition, and allowing execution to proceed pending appeal.

Lord Adam—I think the prayer of the petition is in an unusual form. It professes to be a prayer for execution pending appeal, and is truly so as regards the first portion of it, which I concur in thinking we should grant. We are dealing with a lady who has herself told us that she removed the children from their father's house apparently for a temporary visit but really intending to keep them away permanently.

I have heard nothing satisfying me that it would be prejudicial to the interests of the children to grant the prayer of the petition. I think ante omnia they should be restored to their father's house. It is suggested that their health will suffer by bringing them to Scotland, but doubtless the petitioner will take proper care of them if he gets this order, and it does not necessarily follow that he will bring them down here.

The rest of the petition is not appropriate. The lady should have an opportunity of obtempering the order of the Court. If she should unfortunately refuse to obey our order, she would then be in contempt, and it would be for the petitioner to take any other proceedings he might deem necessary. The remaining part of the petition might in such circumstances be more or less appropriate, but at present we should, I think, only grant the first part, and I hope she will obey the order.

I am of opinion we should grant the first part of this petition and refuse the second part.

Lord M'Laren—I agree with your Lordship in the chair both as to granting the petition in general and as to the limitations of the order to be pronounced. The only step we can at present take is to allow execution pending appeal to the House of Lords. I think it is incompetent for us at present to go beyond our original order, apart from the undesirableness of granting, unless absolutely necessary, such a prayer as that contended in the latter part of the petition.

Lord Kinnear Concurred.

The Court granted the prayer of the petition so far as it craved execution pending appeal, and quoad ultra refused the prayer of the petition as incompetent.