Scottish Court of Session Decisions

On 25th July 1902 A presented a petition in which he prayed the Court to find him entitled to the custody of his child C, born 8th October 1900, and to make an order ordaining his wife B to deliver the child to him. In the petition the petitioner averred that he was married to the respondent in 1900, and that there was one child of the marriage; that in November 1900 he fell into ill-health and gotinto pecuniary difficulties, which coupled with interference on the part of his wife's relations led to unpleasantness between petitioner and his wife; that after a quarrel between them in July 1901 the respondent did all she could to make his life miserable; that “the petitioner thereafter became despondent, and as he was in great straits for money he took sums amounting to about £12 which did not belong to him, and pleaded guilty in the Sheriff Court to a charge of theft of this sum, and was sentenced to four months' imprisonment on the 8th August 1901”; that after being released from prison on 7th December 1901 the petitioner obtained his present situation as an inspector of telephones which had been kept open for him by his employers, who were acquainted with the circumstances leading up to the charge of theft; that his wages were 27s. a-week, and his circumstances were now such as to enable him to maintain his wife and child, and that after his release from prison he wrote on several occasions to the respondent at her mother's address expressing regret for his offence and asking her to return to him, but she did not reply.

On 5th August 1902 the respondent lodged answers in which she averred that the petitioner's conduct had caused the home to be broken up; that after September 1900 he became a bookmaker and consorted with betting men; that in November he pawned some of her marriage presents; that his conduct had seriously affected her health; that in July 1901 she took in summer lodgers with the view of assisting to pay the rent; that on her getting £1 from them at the end of the month the petitioner demanded this sum from her, stating that he wanted 10s. “to put on a horse” and 10s. to give to his mother; that the respondent refused and the petitioner used bad language; that two days thereafter he was arrested on a charge of theft, to which he pleaded guilty and was sentenced to four months' imprisonment; that the indictment showed that the petitioner was charged with eight different thefts of sums ranging from 2s. to over £3, extending from 26th April 1901 to 26th June 1901; and that these thefts were chiefly committed in houses to which he had obtained entry by representing that he had been sent to inspect the electric fittings. The respondent averred further as follows:—“In addition to the charges then made it is believed and averred that there were other similar complaints against him, and respondent now believes that the petitioner carried on a systematic series of thefts extending over a considerable period, and had often pretended to her he was working and earning wages when in point of fact his gains were dishonestly obtained. It is believed and averred that the petitioner has during the greater part of his married life lived a life of deceit and crime, and his conduct has been such as to render him totally unfitted to be a proper custodier of a young child, having due regard to its morals and welfare. The respondent is not satisfied that the petitioner has really amended his way of living, and she considers that it would be in the highest degree detrimental to the best interests of the child, and injurious to her moral well-being, that her upbringing should be entrusted to the petitioner, even if he were in a position to maintain her, which the respondent does not admit. The child of the marriage, a girl of one year and nine months of age, requires maternal care, which the respondent is able to give her. The petitioner has no home to which he can take the child. He is at present living with his mother, and he is unable to make proper provision for its maintenance and upbringing…. While respondent has in the circumstances narrated ceased to live with petitioner, and is at present working for the support of herself and child, she has informed petitioner that if he will prove the sincerity of his professions of penitence by leading a respectable life she will be willing to go back to him with the child on being assured that there is reasonable probability of his proper conduct for the future. She has offered, and hereby offers to the petitioner, all reasonable access to the child, which has never been refused by her.”

On 4th November 1902 the case came before the Second Division of the Court.

Argued for the petitioner—Where a wife was in desertion the husband had an absolute right to the custody of his child unless it could be shown that the physical or moral interests of the child would be endangered— Lang v. Lang, January 30, 1869, 7 Macph. 445, 6 S.L.R. 294; Nicolson v. Nicolson, July 20, 1869, 7 Macph. 1118, 6 S.L.R. 192; Lilley v. Lilley, January 31, 1877, 4 R. 397, 14 S.L.R. 281; Bloe v. Bloe, June 6, 1882, 9 R. 894, 19 S.L.R. 595; Rintoul v. Rintoul, October 22, 1898, 1 F. 22, 36 S.L.R. 21. The above rule of the common law had not been displaced by the Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), sec. 5— Sleigh v. Sleigh, January 20, 1893, 30 S.L.R. 272. None of the statements in the answers showed that the moral or physical interests of the child would suffer. The petitioner was therefore entitled to the custody of his child.

Argued for the respondent—Thepetitioner was not entitled to accuse the respondent of living in desertion as he himself had

Page: 89↓

broken up the home by committing a criminal offence and being sent to prison. The effect of the Guardianship of Infants Act had been to reduce the old legal right of a father to the custody of his children to a prima facie right in a question with the mother, and the bare fact that the spouses were living apart without a decree of judicial separation would not prejudice the mother's claim or prevent the Court considering the surrounding circumstances— MacKellar v. MacKellar, May 19, 1898, 25 R. 883, opinion of Lord President Robertson, 884, 35 S.L.R. 483. The admission of a conviction for crime on the part of the petitioner entitled the respondent's statement that the father was not a fit guardian for the child to great weight. Looking to this admission, to the respondent's statements, and to the age of the child, the Court would best safeguard the physical and moral interests of the child by permitting the mother to retain it, the father being given right of access— Reid v. Reid, January 9, 1901, 3 F. 330, 38 S.L.R. 237.

The Court adjourned the case for a week, in order to give the respondent further opportunity for making inquiry as to the truth of the petitioner's statement that he was in a position to maintain his wife and child, and for stating anything additional which she was able to allege against the petitioner.

On November 12th, when the case was called, the respondent's counsel intimated that he had nothing further to add.