Scottish Court of Session Decisions

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Cite as: [1894] SLR 31_843, [1894] ScotLR 31_843

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SCOTTISH_SLR_Court_of_Session

Page: 843↓

Court of Session Inner House First Division.

Thursday, July 19. 1894.

31 SLR 843

Soutar

v.

Carrie.

Subject_1Parent and Child
Subject_2Custody of Child
Subject_3Payment to Person Deprived of the Custody
Subject_4Custody of Children Act 1891, sec. 2.
Facts:

The Custody of Children Act 1891, by section 2, provides that “if at the time of the application for an order for the production of the child, the child is being brought up by another person … the court may … order that the parent shall pay to such person …the whole of the costs properly incurred in bringing up the child, or such portion thereof as shall seem to the court to be just and reasonable.” …

A father sought to have his father-in-law, in whose house his infant child had been living for five years, ordained to deliver up said child. The grandfather submitted that he was only bound to do so upon payment of £85, which he alleged he had expended upon the child. He was, however, unable to furnish details of the outlay of this money. The petitioner offered to pay £15 in monthly instalments of 5s.

The Court, upon the ground that the respondent had failed to show why more than £15 should be paid, granted the prayer of the petition.

Headnote:

The Custody of Children Act 1891 (54 and
Page: 844↓
55 Vict. cap. 3), by section 2, provides that “if at the time of the application for a writ or order for the production of the child, the child is being brought up by another person, or is boarded out by the guardians of a poor law union, or by a parochial board in Scotland, the court may, in its discretion, if it orders the child to be given up to the parent, further order that the parent shall pay to such person, or to the guardian of such poor law union, or to such parochial board, the whole of the costs properly incurred in bringing up the child, or such portion thereof as shall seem to the court to be just and reasonable having regard to all the circumstances of the case.”

Charles Soutar, 2 Dundee Street, Edinburgh, was married on 8th April 1887 to Anne Carrie, who died in childbed on 27th January 1888, leaving a daughter, who continued to reside with her grandparents, James Carrie and his wife, as her father was not in a position to take care of her. In December 1893 Soutar married again and wished to have the child to live with him. In July 1894, upon the grandfather's declining to hand over the child, he presented a petition to the Court for its custody. Carrie lodged answers, in which he stated that he did not wish to part with the child; further, that it was delicate; that it had required exceptional care, necessitating considerable outlay; that he had expended more than £85 in its maintenance; and that the petitioner had only contributed in all £5, 4s. 6d. in small sums at different times. He submitted that the petition should not be granted until payment of £85 had been made, or at least only conditionally upon that sum being paid. He was, however, unable to furnish details of the expenditure of the money claimed. Soutar explained that he was a bootclicker with very limited means, but he offered to pay £15 in monthly instalments of 5s. if the petition were granted.

At advising—

Judgment:

Lord President—The section assumes that where an order is made for payment, an order for delivery of the child to its natural guardian is being pronounced at the same time.

The respondent asks us to order payment of £85, and he is met by an offer of £15 to be paid in instalments of 5s. a month.

We have not got the material here, and the respondent is unable to give us material enabling us to arrive at a decision of what larger sum would be reasonable.

We are entitled to take into account the position and income of the person who is called upon to make payment, and in the circumstances I think we should pronounce an order for payment of £15—not because that is the sum offered, but because the respondent has not supplied us with anything tangible or definite leading us to arrive at a different conclusion.

Lord Adam Concurred.

Lord M'Laren—I do not read the section of the Act as providing that the whole sum expended in aliment must necessarily be given, but that a sum should be awarded as compensation to the person deprived of the custody of the child.

The circumstances and position of the person liable to make payment should be taken into account, and I agree with your Lordship as to the amount, and on the same ground, namely, that nothing has been said showing that a larger sum ought to be awarded than the sum offered.

Lord Kinnear—I agree.

The Court pronounced this interlocutor:—

“Grant the prayer of the petition: Find that the petitioner is entitled to the custody of Annie Carrie Soutar, the child of the marriage between him and Annie Carrie mentioned in the petition; and decern and ordain James Carrie, dairyman, 66 Abbey Park, Arbroath, forthwith to deliver up the said child to the petitioner, or to those having his authority; and further, decern and ordain the petitioner to pay to the respondent the said James Carrie the sum of £15 sterling, at the rate of 5s. per month until the sum of £15 shall have been paid.”

Counsel:

Counsel for the Petitioner— Strachan. Agents— T. F. Weir & Robertson, S.S.C.

Counsel for the Respondent— Findlay. Agents— Duncan Smith & Maclaren, S.S.C.
1894