Scottish Court of Session Decisions

Jane Campbell, weaver, residing at 1 New Buildings, Cambusbarron, presented a petition to the Court, in which she averred “that the petitioner in or about the month of October 1889, being in very destitute circumstances, was induced to place Maggie Ann Campbell and Susan Campbell, two of her children, in the Children's Home, Whin-well House, Stirling, and the said children were duly admitted into that institution by Miss Annie K. Croall, the matron. The petitioner is a mill-worker, and her object was to have the children temporarily taken care of until she was able to find work and provide a home for them. About six months after the date of the admission of the children to the said institution, the petitioner, having found work, was anxious to resume custody of her said children, and has frequently and urgently applied to Miss Annie K. Croall to deliver them to her, but she has refused to do so. The said children, Maggie Ann Campbell and Susan Campbell, were at the time of their admission into the home aged five and four years respectively, and they are both illegitimate.” She prayed the Court “to find the petitioner entitled to the custody of her said children, and to decern and ordain the said Miss Annie K. Croall liable in expenses.”

Miss Croall lodged answers, in which she averred that the two children were admitted into the Home at the pressing and reiterated request of the petitioner; that when admitted they were both sickly and starved little creatures in a deplorable condition of health; that no application had been made for their re-delivery by the mother till quite recently; that since 1890 no payment had been made by the petitioner to account of the board of her children, and that the petitioner had not visited

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her children for nearly three years, though under the rules of the Home she could have seen them at any time on Saturdays. She further averred—“The children are now nine and ten years of age respectively, and neither of them are robust. They require careful attention, good clothing, wholesome, nourishing food, and education suited to their years and health. But these they cannot get in the house and surroundings of the petitioner. If she continues in work in a factory she cannot attend to the children. The petitioner's eldest daughter is not of an age or otherwise suitable to be entrusted with them, and is, besides, at work all day in a factory. The petitioner has hitherto failed to pay the very moderate sum of 3d. per day for their support, and there is no prospect of her being able to provide the much larger sum that would be necessary to support them in a house of her own. The house at present occupied by the petitioner is quite unsuited for two delicate children in addition to two other inmates. It is a single room scantily furnished, with one bed. The health of the children has improved during their residence in the Home, but both of them would without doubt relapse in health if handed over to such care as the petitioner can bestow on them.”

The respondent founded upon the Custody of Children Act 1891 (54 Vict. cap. 3), and submitted that “in the circumstances above set forth at common law the petition should be refused, in respect that it would be prejudicial to the children's health and other interests to be delivered to the petitioner; and further, in respect that the case falls under one or other or both of sections 1 and 3 of the Act of 1891.”

The Court, on 30th May 1895, remitted to Mr Bremner P. Lee, advocate, to inquire into the facts set forth in the petition and answers, and to report. Mr Lee's report was as follows:—“I visited the petitioner in her own house without any previous warning. The house consists of only one room, but it is not a very small room, and is exceedingly airy and well-kept; I was much impressed by the clean and tidy state in which everything was. The petitioner seemed to be genuinely anxious to have her children with her, and to be confident of her ability to support and look after them. She was, indeed, conscious of the superior advantages which they enjoy in their present home, but professed her desire to do all she could to prevent them from being losers if they returned to her. This I am confident would be her aim to the full extent which her means allow. The petitioner works as a weaver, and so far as employment in that industry can be said to be constant, she is constantly employed. The work is, however, so fitful that while in a good week her earnings are about 10s., they are liable in other weeks to be as low as 5s.; the average between these two figures may, I think, be fairly taken to represent her weekly earnings over the year. The petitioner's eldest daughter, a girl of eighteen, also illegitimate, lives with her, and professes her willingness to assist in keeping the children; her present earnings are 9s. a-week. Both women's work necessitates their absence during most of the day. The petitioner has to pay a rent of £2, 10s. per annum for her house. I made independent inquiries as to the petitioner's character, and satisfied myself that for the last two years—that is, during all the time she has resided in her present house, she has been a respectable, sober, and industrious woman. No allegation has been made against her present character, and I do not think that any such allegation could be in any way supported. The same may be said of the daughter who lives with her. I also saw Miss Croall and the two children. In Miss Croall's presence the children showed that they regarded her with affection and confidence, and when I saw them alone they professed the same feelings. It is difficult to see how the children could have any view but one in these proceedings, which they regard with the keenness of intelligently interested parties, to whom success means staying where they are, and failure a return to a life of which they know nothing, but fear much. Their mother they hardly know, while Miss Croall has been their benefactress; of home life they know nothing except at a time when its misery and want were exchanged for their present comfortable home. Besides this, I fancy that the contrast has been brought home to them often, not only directly, but by frequent observation of the relief of the wants of new inmates admitted to the Homes. The children are frank and intelligent, and I questioned them on the subject. They both wished to stay where they are, and where, they say, they are comfortable and happy. The respondent suggested to me means of inquiring into the alleged abandonment of the children by the petitioner, but I have not thought it necessary to enter into this question. The petitioner admits that when in utter want she was glad to entrust her children to anyone who could keep them, but the present character and conduct of the petitioner have seemed to me to make any former abandonment unimportant if she can show present willingness and ability to support her children. On that question I can add nothing, except that any assistance which the petitioner may receive from her eldest illegitimate daughter can be enforced by no legal obligation, and may be at any time withdrawn on her marriage. The small earnings of the petitioner alone afford little promise of comfort to her children if they return to her, and any care or attention during the day must be precluded by the necessary absence of the mother. While the children are at present strong, they both, and especially the elder, have suffered from former neglect, and have only been brought to their present healthy state by care and attention which they could not expect in their mother's home.”

Argued for the petitioner—There being no allegation in the report of her unfitness to take charge of her children, she had an absolute right to them — Macpherson v. Leishman, June 4, 1887, 14 R. 780.

Counsel for the respondent was not called on.

At advising—