Scottish Court of Session Decisions

On the 15th of October 1895 Alexander Kincaid, labourer, Neilston, and Alexander Kincaid, painter, Neilston, presented this petition to the Court for the custody of Alexander, John, and Hugh Kincaid, born respectively in 1883, 1884, and 1886, grandsons of the former and nephews of the latter petitioner.

The petitioners averred that Hugh Kincaid, the father of the said children, who died in 1892, lived and died a Roman Catholic, and was sincerely attached to his religion; that his wife, who survived him, and died on 26th May 1893, though originally a Protestant, had before her marriage become a Roman Catholic, and ever since had appeared to be zealous and sincere in her attachment to that form of religion; that both parents had showed great anxiety that their children should be instructed in the tenets of their religion and brought up in the practice of its observances; that up to 24th April 1893 the children had attended Roman Catholic schools; and that shortly before that date the mother received the last sacraments from a Roman Catholic priest, and expressed herself to him and to others as most anxious that the children should be brought up as Roman Catholics.

The petitioners further averred—“After the death of Mrs Kincaid the petitioners discovered that the three youngest children had been illegally removed to Mr Quarrier's Homes on or about 24th April 1893, and

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were there being brought up as Protestants. The petitioners repeatedly applied to Mr Quarrier for delivery of the said children, but without success. They were not in a position to take legal proceedings at that time, but they subsequently, in March 1895, instructed an agent to write to Mr Quarrier, calling upon him to deliver up said children. Mr Quarrier, in reply, sent copies of two documents to the following effect:—

‘ Barrhead, April 24, 1893.

‘To Mr Wm. Quarrier.

Dear Sir,—I hereby request you to take my children under your care and guidance, and wish them to be brought up in the Protestant religion. Their names are Alex., John, and Hugh Kincaid, and they were left with you to-day by Robert M'Lean and Jeannie Connley. I also enclose the form of agreement signed by me.—Yours respectfully,

Mary Cl. or Kincade.

Witness, William Jack.

Witness, James Baird.'

Orphan Homes of Scotland and Destitute

Children's Emigration Homes.

Form of Agreement.

I, Mary Kincaid, make application to have my boys, Alexander, Jno., and Hugh Kincaid, aged 9, 11, and 7 years, received into the above named Homes with the view of being emigrated to Canada, under the care of William Quarrier or his agents, or to be kept at home or otherwise disposed of as Mr Quarrier thinks best, in proof whereof I affix my signature.

‘ Mary Cl. Kincade.

Witness, William Jack.

Witness, James Baird.

Barrhead 24th April 1893.’

Jeannie Connley, referred to in the first of the foregoing writings, was the sister of Mrs Kincaid, and is now dead. She was a Protestant. Robert M'Lean, mentioned in the said writing, is a working man, a religious enthusiast and a street preacher. He was in the habit of calling upon Mrs Kincaid, and, as the petitioners believe and aver, it was he who conceived the idea of sending the children to Mr Quarrier's Homes. He made all the arrangements with Mr Quarrier for this purpose, and removed the children from Barrhead to Mr Quarrier's Homes in Glasgow. Both he and the alleged witnesses are members of a body known in Barrhead as ‘The Brethren;’ their religious views are strongly opposed to Roman Catholicism. Although the second of the said writings is on one of Mr Quarrier's printed forms, the latter alleges that he knew nothing of the documents till they were delivered to him after completion. The petitioners believe and aver that the said documents, if signed by Mrs Kincaid, do not express her real wishes in regard to the said children. She was dying at the time she is alleged to have signed them, and was weak and facile in mind. She was also, as the petitioners believe and aver, indulging to excess in intoxicating liquors at the time. The witnesses to the said documents did not see Mrs Kincaid sign, nor did they hear her acknowledge her signature. The signatures were obtained by the said Robert M'Lean. The purport of the said documents is directly at variance with Mrs Kincaid's previous life and conduct. In any case, the petitioners submit that she had no right to alter her children's religion in violation of the wishes of her deceased husband, and in disregard of the religious training which they had received during the whole of their lives.”

The petitioners accordingly, as the nearest relatives of the said children, the first named petitioner being also liable for their aliment, craved the Court to ordain the said William Quarrier to deliver the children to the petitioners or to any person having their authority; or alternatively, to find and declare that the children should be brought up in the Roman Catholic religion, and to approve of a scheme for that purpose; and to ordain the said William Quarrier to educate and bring up the children in terms of such scheme.

Mr William Quarrier lodged answers in which he averred—“On 24th April 1893 said children were brought to the respondent's City Orphan Home in Glasgow by their aunt Jane Connelly. She was accompanied by Mr Robert M'Lean, who is not, as stated in the petition, a member of the religious body known as ‘The Brethren,’ but is, and has all along been, a member of the Established Church of Scotland. It was explained to the respondent by said parties that the children's father was dead; that their mother was ill of consumption, and not likely to live many weeks; that the father had been a Roman Catholic, but that the mother was a Protestant, and wished, in prospect of her decease, to make arrangements for the maintenance of the children; that she was in receipt of parochial relief on behalf of the children; and that she wished them removed from the control of parochial authorities and brought up as Protestants…. The respondent previous to that date had no knowledge whatever of the children in question, and he has ascertained that the form of agreement which was filled up and duly signed by Mrs Kincaid had been obtained at his office on the previous Saturday, said form being that usually employed with reference to children admitted to the respondent's homes. In the circumstances the respondent agreed to receive the children into his home, and they have been under his care or control ever since.”

The respondent further averred that the boys had more than once been visited at his Orphans' Home by the petitioners and by their own elder brother, James Kincaid, [fourteen years of age, who had always lived with his grandfather]; that in consequence of a wish expressed by the boys themselves, Alexander and John had been sent to Canada; that no complaint had ever been made regarding the treatment of the boys, but that, on the contrary, the first named petitioner had expressed himself highly satisfied with it.

The respondent went on to aver that the petitioner Alexander Kincaid senior

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refused to do anything for the support of the children during their father's lifetime or after his death while the mother survived; that the mother had during all her married life been obliged to work for her own living and the support of the children, and had been compelled to apply for parochial relief while her husband was still alive; and that the petitioners' statements regarding Mrs Kincaid's relations to the Roman Catholic religion were entirely erroneous. He maintained the genuineness of the documents purporting to be signed by Mrs Kincaid, and contended that these constituted a sufficient nomination of a guardian under the Guardianship of Infants Act 1886, and that he “ought not to part with the children without judicial sanction on the application of persons who have hitherto taken little or no interest in the children and have done nothing for their support, but have allowed them to become chargeable to the parish.”

The Court having, under the Conveyancing Act 1874 (37 and 38 Vict. cap. 94), sec. 39, allowed the respondent a proof as to the genuineness of Mrs Kincaid's subscription to the documents founded on by him, it appeared therefrom that they were improbative, in respect that one of the witnesses had not seen Mrs Kincaid sign either of them, but had nevertheless attested them some weeks after her death on M'Lean's invitation. It was admitted at the bar that the petitioners meant to place the children in a Roman Catholic orphanage.

Argued for the petitioners—It being now established that there was no formal appointment of a guardian by the mother in terms of the Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), sec. 3, Mr Quarrier had no title to oppose the petition, and the Court would not look favourably on his contentions in view of the irregular methods employed by his agent M M'Lean in completing the documents founded on by the respondent. The present case was indistinguishable from that of Reilly, July 10, 1895, 22 R. 879, and the petitioners were entitled to the custody of the children. Alternatively, the Court should avail itself of the power conferred by the Custody of Children Act 1891 (54 Vict. cap. 3), sec. 4, and if it thought it better for the children to remain where they were, order them to be brought up in their father's religion.

Argued for the respondent—Though the documents were defective in formality, the petitioners did not seriously dispute that the signatures of Mrs Kincaid were genuine, and it was clear that the mother desired that the children should be placed with the respondent. No good reason had been averred for their removal from his custody, and the petition should be refused under the Custody of Children Act 1891, secs. 1 and 2, for the elder petitioner had deserted the children and allowed them to become dependent on parochial relief. The paramount consideration with the Court was the welfare of the children and not the father's religious beliefs— Morrison v. Quarrier, July 19, 1894, 21 R. 1071. No suggestion had been made that the children were badly treated.

At advising—