Scottish Court of Session Decisions

John Alexander, miner, residing at Loch-end Cottages, Kirkliston, Linlithgowshire, died there on November 7, 1902, leaving two pupil children, Mary Jane and Mary Anne.

John Alexander's wife, Mrs Jane M'Garrity or Alexander, predeceased him on May 31, 1902. After his wife's death John Alexander, with his two children, took up his residence with his brother-in-law, Patrick M'Garrity, miner, and his wife, at Lochend Cottages, Kirkliston, and the children after their father's death continued to reside there.

On December 5, 1902, William Alexander, labourer, Old Town, Broxburn, father of the deceased John Alexander and grandfather of the two children, with the concurrence of their father's sister, and of their father's cousin, the petitioner's niece Mrs William Anderson, presented a petition praying the Court to find him entitled to the custody of the children, and to ordain Patrick M'Garrity to deliver up the children to him.

The petitioner stated—“The deceased John Alexander and his family, including the petitioner, were and are Protestants, and John Alexander was very desirous and intended that his children should be brought up in that faith … The said children are in the custody of Patrick M'Garrity, who is a Roman Catholic. M'Garrity is in poor financial circumstances, and not in a position to properly maintain and educate said children. His weekly wage is about thirty

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shillings, and out of this sum he has to maintain himself, his wife, and three of a family…. The petitioner resides with his niece Mrs William Anderson in the Old Town, Broxburn, and if he obtains the custody of said children his niece is prepared to offer, and hereby offers, them a comfortable home. She is fifty years of age, has had children of her own, who are all grown up and forisfamiliate, and she is in the enjoyment of a good income. Mrs William Anderson is prepared, along with the petitioner, to undertake the care of said children.”

Patrick M'Garrity lodged answers to the petition. He stated—“The said John Alexander and his two children for five mouths previous to his death resided with the respondent. He came to the respondent's house with his said children shortly after his wife's death, and placed them under the care of the respondent and his wife, in whose custody they still are. Since the children have been under the care of the M'Garritys their father was well pleased with the attention bestowed upon them, and made no complaint on the subject to the respondent or his wife.” He denied that the deceased John Alexander was a Protestant and was desirous and intended that his children should be brought up in that faith. He averred that the deceased previous to his marriage was received into the Roman Catholic Church and was married according to the rites of that Church; that the children of the marriage were all baptised in the Roman Catholic Church in conformity with the instructions and wishes of their parents; that he himself was a Roman Catholic; that he had a comfortable home, and that he and his wife were much attached to the children; that he was willing to make all provision for their comfort and education. He submitted that the children should be allowed to remain under his care, but that if the Court deemed it expedient to make a change the children should be transferred to a Roman Catholic Home.

The respondent further stated—“The petitioner lives in lodgings with his niece Mrs William Anderson, who occupies a two-roomed house in the Old Town, Brox burn. The petitioner is a very old man, and has been unable to work for a number of years. Said Mrs Anderson's income is in part derived from a public-house tenanted by a son-in-law. The public-house is in the immediate vicinity of Mrs Anderson's house, and on that account, and on account of her relationship to the tenant, her home is not a suitable one.”

On January 20, 1903, the Court remitted to Andrew Rutherfurd, Esq., Sheriff of the Lothians and Peebles, to inquire and report as to the facts and circumstances.

In his report Sheriff Rutherfurd stated, inter alia, as follows:—“John Alexander, miner, son of the petitioner William Alexander, was married on the 24th of July 1890, according to the rites of the Roman Catholic Church, to Jane M'Garrity, sister of the respondent Patrick M'Garrity. John Alexander had been brought up as a Protestant, but shortly before his marriage he joined the Roman Catholic Church, of which his wife and her relations were members.

“In May 1895 John Alexander was at his own request admitted a member of the Established Church of Scotland by the Rev. Alexander Masson, minister of the parish of Kirkliston, in which Alexander then resided. He took part in the communion service in Mr Masson's church on at least one occasion, and attended divine service there (although not regularly) down to the year 1897 or 1898, when he went to Cambuslang in Lanarkshire. Sometime before he left Kirkliston Alexander expressed to Mr Masson his desire that his wife should become a Protestant, and requested him to speak to her on the subject; but Mr Masson had no opportunity of doing so before she went to Cambuslang.

In May 1902, while Alexander was at Cambuslang, his wife died, They had five children, three of whom died in infancy. They were all five baptised according to the rites of the Roman Catholic Church, but one of them, Mary Anne, not until some days after her father's death.

After his wife's death, Alexander returned to Kirkliston, and with the two surviving children, Mary Jane and Mary Anne, took up his residence with his brother-in-law the respondent Patrick M'Garrity, to whom he paid for board and lodging sixteen shillings per week.

On the 5th of November 1902 Alexander called upon the Rev. Mr Masson, to whom he stated that he desired his children to be placed in a “Home,” as he did not think that they were quite so well cared for as he wished them to be, and Mr Masson said that he would inquire if they could be received into the Robertson Orphan Home at South Queensferry, which is supported by the Church of Scotland. Mr Masson, however, did not do so, as Alexander died two days afterwards, on the 7th of November 1902, in consequence of an accident which he met with at his work. He left no property of any value, and died intestate without naming guardians for his children.

Shortly after John Alexander's death, and before the present petition was presented to the Court, M'Garrity caused the girl Mary Anne to be baptised by a Roman Catholic clergyman, in accordance, as he stated, with the father's instructions to that effect given before his death.

The elder of the two girls, Mary Jane Alexander, appeared to be a healthy intelligent child. She is well grown and well nourished, and was decently although rather poorly clothed, but not worse clad than many miners' children are. She stated that she and her sister are happy, and have been kindly treated by the respondent and his wife. She also said that she liked the petitioner her grandfather, who had been kind to her. Both the girls are attending the Lochend Board School near Ratho railway station.

The respondent Patrick M'Garrity is a miner, thirty-seven years of age, earning

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at present 32s. per week of wages. He ‘occupies a house near Kirkliston containing two rooms, for which he pays a rent of 3s. 2d. per week. He has now five children of his own.

In April 1902 one of M'Garrity's children was suffering from diphtheria, in consequence of which Mr Adamson, sanitary inspector for the parishes of Ratho and Kirkliston, called at the house, which he said that he found in a very dirty condition. After causing the house to be disinfected he gave orders to Mrs M'Garrity to have it properly cleaned, but on the 9th of May he found that had been only partially done. On the 14th and 20th of November last Mr Adamson again visited the house, but found that it was still in a very dirty and insanitary condition, which he accounted for by the fact that M'Garrity's-wife, who is not a strong woman, had not been able to do the necessary cleaning in addition to her other work.

Mrs M'Garrity is twenty-six years of age, and her four eldest children are aged eight, five, three, and two years respectively. She gave birth to her fifth and youngest child on the 10th inst., the day before the inquiry was held, so that she was unable to be present.

The respondent and his wife are both Roman Catholics, and he stated to the Sheriff that the sole ground on which he refused to part with the custody of the children, and opposed the present application to the Court, is that he does not wish them to be brought up as Protestants. He also stated that he is attached to the children, and is willing to do the best that he can for them.

The respondent has been for many years in the employment of Young's Paraffin Light and Mineral Oil Company, Limited, and he appears, from certificates from his employers, which were produced, to be a steady, sober, and respectable man.

The petitioner is in the seventy-second year of his age. For several years past he has resided at Broxburn, in the house of his niece Mrs Anderson, to whom he has paid nothing for board and lodging.

Mrs Anderson is fifty-four years of age and the mother of three grown-up children. The house which she occupies is her own, and contains kitchen, scullery, and three bedrooms; the inmates being herself and her husband, the petitioner, her granddaughter, who is fourteen years of age, and a servant.

Mrs Anderson is proprietrix of another house in Broxburn, which is occupied, rent free, by her son-in-law John Haston. She has also other house property which yields a nett rental of between £30 and £40 per annum; and she carries on the business of a public-house, from which she draws £30 to £35 per month. The petitioner and Mrs Anderson are both adherents of the Church of Scotland, and they are desirous that the two pupil children should be brought up as Protestants.

There is a board school within a few minutes' walk of the house in which the petitioner and Mrs Anderson reside.

Mrs Anderson, who appeared to be a very respectable woman, stated that she is anxious to do everything in her power to promote the welfare of the children.”

At the date of the petition the children were respectively eight and three years of age.

Argued for the petitione—The petitioner was the nearestmale agnate of the children, and therefore their tutor-at-law and entitled to direct their education. The father of the children was a Protestant, and the facts stated by the reporter showed that, though at his marriage he became a Roman Catholic, he again became a Protestant and desired to have his children educated in that faith. In these circumstances the fact that the children had been baptised in the Roman Catholic Church was no reason for refusing to grant the custody of the children to the petitioner, their natural guardian— Morrison v. Quarrier, June 9, 1894, 21 R. 889, 31 S.L.R. 884; Reilly v. Quarrier, July 10, 1895, 22 R. 879, 32 S.L.R. 664. In cases of this kind the interest of the children was the paramount consideration, and on the facts before the Court there could be no question that the home of the petitioner offered better prospects of comfort and health to the children than could be offered in the home of the respondent.

Argued for the respondent—The important consideration in this case was that of the religion in which the children were to be brought up, and on that question the predominating fact was that the children had been baptised and trained in the Roman Catholic Church. The father's religious convictions had fluctuated; his actions showed that he meant the children to be brought up as Roman Catholics. The father's wish in that matter should receive effect. The fact that the petitioner was tutor-at-law to the children did not entitle him to the custody. The tendency of recent decisions and statutes ( e.g., the Guardianship of Infants Act 1882) was to have regard to the wishes of the mother as to the personal custody of pupil children, and the mother in this case was a devout Roman Catholic during her whole life. The questionof physical comfort was admittedly an element to be considered, but in this case the advantage or disadvantage of the homes offered by the petitioner and respondent respectively left little to choose on that ground. The children had been well cared for by the respondent, and his home had been deliberately chosen for them by their father before his death. If the Court thought it expedient the respondent was willing to arrange for the children being brought up in a Roman Catholic Home. In any event, the petition should only be granted on the petitioner coming under an obligation secured by caution to bring up the children in proper comfort.