Scottish Court of Session Decisions

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Cite as: [1900] SLR 37_845, [1900] ScotLR 37_845

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

[Sheriff of Forfarshire.

Saturday, June 30. 1900.

37 SLR 845

Moncrieff

v.

Langlands.

Subject_1Parent and Child
Subject_2Illegitimate Child,
Subject_3Aliment
Subject_4Offer by Father to Place Male Child of Seven Years in Care of a Stranger.
Facts:

An offer made by the father of an illegitimate male child seven years of age, to place it in the care of a stranger, is a good defence to a claim by the mother for future aliment, provided that the Court is satisfied as to the suitability of the person in whose custody the father proposes to place the child.

Headnote:

This was an action at the instance of Mrs Alison Moncreiff, with consent of her husband Alexander Moncreiff, yarn dresser, Dundee, against Charles Langlands, overseer, Dundee, for the aliment of her illegitimate male child born on 19th August 1892, of which the defender was admitted to be the father.

The petition concluded (1) for certain arrears which the pursuer alleged to be due for the period prior to 19th August 1899, when the child reached the age of seven; and (2) for a sum of £7, 16s. yearly thereafter as aliment for the said child.

The defender stated that he had paid aliment up to 24th August 1899, on which date he offered to take the custody of the child, and that his offer was refused by the pursuer, and he therefore refused to pay any further aliment. He stated further, that being temporarily absent from this country in pursuit of his calling he had arranged to place the child either under the care of one Mrs Macdonald, residing near Dundee, or with his brother.

He pleaded (2) “The defender is entitled to make his own arrangements for the upbringing and education of the child, in respect the child is over seven years of age, and pursuer has been married since its birth.”

On 22nd December 1899 the Sheriff-Substitute ( Campbell, Smith) decerned in terms of the prayer of the petition.

The defender appealed to the Sheriff ( Johnston), who on 9th March 1899 pronounced an interlocutor in these terms— (After dealing with the claim for arrears), “Finds that the defender not being in this country his offer to board the child with strangers, or even his brother, is no sufficient answer to the claim for aliment: Therefore decerns him to pay aliment at the rate of 3s. per week from said 24th August 1899 until the date hereof, and thereafter quarterly in advance, with interest as craved: Finds the defender liable to the pursuer in throe-fourths of her taxed expenses. Allow s an account,” &c.

Note.—“I think the law is that unless there is something exceptional in the case, a father of an illegitimate child is entitled at the age of seven years to say, in answer to a claim to contribute further aliment, that he is willing to receive the child into his own house, but I do not think that this extends to entitling him to say that he will provide for its support in someone rise's house. I have not given decree for future aliment down to any definite date, because the defender may return home and then make a legitimate offer to receive the child into his house.”

The defender appealed to the Court of Session. It was stated by his counsel at the bar that he now proposed to entrust the child to the care of Mrs Macdonald.

Argued for the defender and appellant—The father of an illegitimate child was entitled when it reached the age of seven to provide for its support and upbringing as he thought best, subject to the condition that his offer must be made in bona fide, and that the proposed arrangement was suitable— Grant v. Yule, February 29, 1872, 10 Macph. 511; Shearer v. Robertson. November 29, 1877, 5 R. 263; Westland v. Pirie, June 1, 1887, 14 R. 763. The Sheriff's view that the father was not entitled to provide for the child's upbringing elsewhere than in his own house was unsound. It was not said here that the person with whom the defender proposed
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to place the child was in any respect unsuitable. It must therefore be held that the proposed arrangement was reasonable, and the defender was consequently absolved from liability for further aliment.

Argued for the pursuer and respondent—The offer made by the defender was not reasonable. He was not in this country, and it was not proposed to place the child in the care even of a relative. The Court had never sanctioned an offer to entrust the child to the care of a stranger. The pursuer had no information about Mrs Macdonald, and it did not appear that she had agreed to take the child. The respondent cited Brown v. Halbert, May 19, 1896, 23 R. 733.

The Court remitted to a reporter to make inquiry regarding the circumstances and character of the person to whom the defender proposed to entrust the child. The result of that inquiry sufficiently appears from the opinions of the Judges.

At advising—

Judgment:

Lord Justice-Clerk— This child has reached the age of seven years, and when an illegitimate male child has reached that age it is as a rule the right of the putative father to decline to pay any furtliei aliment on the footing of taking the maintenance and upbringing of the child into his own hands. During the child's earlier years, when a mother's care is of the highest importance, the father has no such right. Where a father, when the child is seven years old, proposes to take charge of it himself, it is in the ordinary case to one of his relatives that he entrusts the custody of the child, but I am not prepared to say that the mere fact that the father does not propose to take the child into his own personal custody, and proposes to hand it over to a stranger, is conclusive against the father's proposal if that proposal is otherwise satisfactory in the opinion of the Court. I can imagine many cases in which it would be out of the question for the father to take the child into his own house. I know of no authority for the doctrine that the father must have a house of his own in which to receive the child. I think that he sufficiently fulfils his obligation if he provides a place for the child in a suitable house. I think that the defender's proposal here is of that nature. I am therefore of opinion that we should recal the Sheriff's interlocutor, and give the mother decree for aliment up to the present date, but no longer.

Lord Trayner—I have come to the same conclusion. The rule is now well established that, unless in exceptional circumstances, such as the weakness of the child, the father of an illegitimate child which has reached the age of seven years is entitled to say, in answer to an action by the mother for payment of future aliment, “I will no longer pay aliment, for I intend to provide [for the child by taking it into my own charge.” If that offer is made in bona fide, the mother is not entitled to insist in her action against the father. The father may take the child into his own house if he wishes; but he may be a bachelor, and other circumstances may easily be figured which would make it undesirable for him to take the child to live in his own house or lodgings, and the cases which have been decided show that it is not a reason for refusing to give effect to the father's offer that he does not propose personally to undertake the custody of the child. The offer generally made by the putative father is to place the child with his brother, his sister, or other relative, and the difference in the present case is simply this, that the defender here proposes to place the child with a stranger, hut if the person is respectable and the Court is satisfied that the child will be well cared for in such custody, I think that the father's offer is just as good and effectual as an offer to take the child to his own home. I am satisfied that the person with whom the defender proposes to place the custody of this child is a suitable person, and I am therefore of opinion that the Sheriff's interlocutor in so far as it is an interlocutor decerning for payment of continuing aliment in the future, ought to be recalled. I think that the pursuer is entitled to decree for aliment at the rate of 3s. a-week from the date of the last payment to the present date, but to no more. The defender's offer terminates his obligation to pay aliment to the pursuer. She may reject the offer and keep the child if she pleases, but if she does, that frees the defender from any obligation to provide aliment in the future.

Lord Moncreiff— I am of the same opinion. I confess to feeling some sympathy with the pursuer, but the case of course cannot be decided upon considerations of sympathy. The defender's right to meet the action by an offer to take the child into his own hands is undoubted. Notwithstanding the offer, the mother is entitled to keep the child if she pleases; hut if the offer is a good offer, she is not entitled to keep the child and also to decree for future aliment against the defender. Therefore the only question here is, whether the offer which the defender has made is to he regarded as a good offer. It is said that the offer is bad, because the defender, being absent from the country, does not propose to take the child into his own house or that of a near relative, hut proposes to board the child with a stranger. It is true that the cases in the books with which we are familiar were cases in which the child was boarded with a relative of the father, but it does not follow that an offer by the father to send the child to a person who, although in other respects suitable, is a stranger, is an offer which must necessarily be rejected as insufficient. The Court must he satisfied that the person, whoever it is, to whom it is proposed to send the child is a suitable person, who is likely to look well after the child, and I think that the only effect of the person proposed being a stranger is to lay on the Court the duty of seeing that he or she is entirely unexceptionable.

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We have a report here which gives a very satisfactory account of Mrs Macdonald, to whom the defender proposes that the child should be sent. Mr Gunn does not dispute that. Therefore whatever views one may entertain as to the motives of this defence, I think that we have no alternative but to sustain the defender's proposal.

Lord Young was absent.

The Court sustained the appeal, recalled the interlocutors appealed against, found “that the defender has intimated that he is prepared to provide for the child's future maintenance, and that the provision he has made for doing so is satisfactory;” decerned for aliment from 24th August 1899 to 3rd July 1900, and quoad ultra assoilzied the defender.

Counsel:

Counsel for the Pursuer— Gunn— Adamson. Agents— Mackay & Young, W.S.

Counsel for the Defender— Blair. Agent— L. M'Intosh, S.S.C.
1900