Scottish Court of Session Decisions

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Cite as: [1907] ScotLR 55, [1907] SLR 55

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Saturday, November 2. 1907.

45 SLR 55

Govan Parish Council

v.

Glassary Parish Council.

Subject_1Poor
Subject_2Settlement
Subject_3Residential Settlement
Subject_4Capacity to Acquire Residential Settlement — Forisfamiliation — Education (Scotland) Act 1901 (1 Edw. VII, cap. 9), sec. 2 — Age at which Residential Settlement may be Acquired.
Facts:

The Education (Scotland) Act 1901, section 2, enacts—“It shall not be lawful for any person to take into his employment any child … (2) who, being of the age of twelve years and not more than fourteen years, has not obtained exemption from the obligation to attend school from the school board of the district.…”

Held that this enactment, having no reference to the poor law, did not affect the capacity to acquire a residential settlement, and consequently that, in spite of it, a female orphan could begin to acquire a settlement by residence on her attaining puberty, at the age of twelve.

Headnote:

The Parish Council of the Parish of Govan ( first parties), and the Parish Council of the Parish of Glassary ( second parties), presented a special case dealing with the settlement of Joanna Margaret Robertson Mackenzie, a pauper lunatic.

The pauper was born at Lochgilphead in the parish of Glassary on 19th December 1885, and was the lawful daughter of John Mackenzie, architect's draughtsman, who died on 18th February 1894 at Slockvullin, in the parish of Kilmartin. He had no residential settlement, and the settlement of his birth was Glassary. The mother, Joanna M'Corquodale or Mackenzie, died at Shettleston, in the parish of Glasgow, on 26th September 1901.

The case stated—“(4) From 3rd July 1894, when she was between eight and nine years of age, until 15th April 1902, when she was aged sixteen years and four months, the pauper resided continuously in the Orphan Homes, Whiteinch, in the parish of Govan. During her residence in these homes up to the age of fifteen the pauper was sent out each day to a public school for her education.… (6) If the pauper became capable of acquiring an independent settlement when she attained the age of twelve years, in December 1897, then, by her continued residence in the said Orphan Homes thereafter until April 1902, the pauper acquired a residential settlement in the parish of Govan, which settlement she had not lost at the date of her becoming chargeable as a pauper. The parish of Govan would accordingly, in that event, be the parish liable for the pauper's maintenance.”

The questions for the opinion and judgment of the Court were—“(1) Did the said Joanna Margaret Robertson Mackenzie, the pauper, become capable of acquiring an
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independent settlement on attaining the age of twelve years? or, Did she become capable of acquiring an independent settlement only on attaining the age of fourteen years? (2) Are the first parties, the Parish Council of the parish of Govan Combination, liable for the maintenance of the said Joanna Margaret Robertson Mackenzie, the pauper, so long as she continues chargeable? or, Are the second parties, the Parish Council of the Parish of Glassary, liable for such maintenance?”

Argued for the first parties—Formerly a female minor who was an orphan could acquire an independent settlement as from her attaining the legal age of puberty, viz., twelve years, that being taken as the possible date of for is familiation— Craig v. Greig & Macdonald, July 18, 1863, 1 Macph, 1172, Lord Jerviswoode at p. 1188, and Lord Ormidale at p. 1189. This rule had now, however, been altered by the Education (Scotland) Act 1901, which had postponed the time when a child could begin to earn its own living to the age of fourteen. Capacity to earn a living was the test of for is familiation— Greig v. Ross, February 10, 1877, 4 R. 465, Lord Gifford at p. 468, 14 S.L.R. 346—and consequently it was only residence subsequent to attaining an age when a living might be earned which could count towards the acquisition of a residential settlement. It was therefore only the pauper's residence in the parish of Govan after the age of fourteen which was to be looked to. That residence was insufficient to enable her to claim a settlement there, as it had only lasted two years and four months, and her father having a birth settlement only at his death, the pauper's settlement was in Glassary, the parish of her birth. The first branches of the first and second questions should be answered in the negative.

Argued for the second parties—The statute cited dealt with education, not with the law of a pauper's settlement. Had the purview of the enactment included the latter it would have been expressly mentioned. Mere residence after puberty gave a settlement if the child was sui juris, and not a common beggar or in receipt of parochial relief— Craig v. Greig and Macdonald, ut supra, Lord Justice-Clerk Inglis at p. 1179; M'Lennan v. Waite, June 28, 1872, 10 Macph. 908, Lord Kinloch at p. 910, and Lord Ardmillan at p. 911, 9 S.L.R. 566; Parochial Board of Elgin v. Parochial Board of Kinloss, June 1, 1893, 20 R. 763, Lord Trayner at p. 764, 31 S.L.R. 684, sub nom. Elder v. Leitch. The pauper attained puberty when she reached the age of twelve, and her residence in the parish of Govan was therefore to be calculated from that date. Doing so, she had acquired a settlement in that parish, which was liable for her maintenance. The first branches of the first and second questions were to be answered in the affirmative.

Judgment:

Lord President—It seems to me that this is a very plain case. It is admitted that but for the Education Act this case falls directly under the decision in Craig v. Greig and M'Donald, because here is a child with her father dead, who since the time of her father's death and at her puberty acquired a residential settlement. Now, the only thing that is said to prevent the application of the decided case is that since the time of the decision the Education Act of 1901 has been passed. The Education Act of 1901 by the first section thereof makes it the duty of every parent to provide efficient elementary education in reading, writing, and arithmetic for his children who are between five and fourteen years of age. Accordingly the second section prohibits persons from taking into their employment children, being of the age of twelve and not more than fourteen, who have not obtained an exemption from the school board. It is argued that because of that Act there is therefore a disability upon a female child who although of the age of puberty—that is to say, over twelve—is still under fourteen, doing these things which really go to the acquiring of a residential settlement.

It would be a very curious result if it were so, because undoubtedly I think it is easy to say that the Legislature in passing the Education Act of 1901 had not the remotest notion that they were dealing with the poor law. I do not think any such result follows, for a very simple reason. It has been said again and again, alas too truly, that all these poor law rules embodied in the decisions are artificial to the highest degree. How artificial in cases of this sort can easily be gathered when one thinks how practically impossible it is for a female child of twelve years of age to earn its own livelihood. But there is the rule, artificial as it is, that when the father is dead, and the child is emancipated and comes to the age of puberty, it is in a position in which it is theoretically supposed to be earning its own livelihood. Therefore I think the answer to the argument is a very easy one, that although the Act imposes certain duties upon parents to provide the child with elementary education, it does not affect the theoretical capacity of the child to earn its own livelihood. The practical capacity, as I understand, in 999 cases out of 1000, is not there although theoretically it is. One can conceive of a child who for some reason or other was so gifted as to be able to perform upon an instrument such as the violin, and who at such tender years could make sufficient money to earn her own livelihood, and who at the same time might have quite enough hours of the day which she might devote to reading, writing, and arithmetic. But the answer is a simple one—that the Act which has been quoted has really nothing to do with the subject which is before us. Accordingly I am for answering the first branch of the first question in the affirmative, and the first branch of the second question in the affirmative also.

Lord Dundas—The question raised in this special case is a very short one, and (although it has to deal with Poor Law settlement) I think it is a very simple one

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The first parties maintain that in consequence of the Education (Scotland) Act 1901 no child can now be held to become capable of acquiring an independent settlement until it has attained the age of fourteen; and they seek to apply that doctrine to the effect that in the case of females the age at which they become capable of acquiring such a settlement has been altered from twelve to fourteen. I think that contention is unsound. The Act 1 Edw. VII, cap. 9, is entitled “An Act to regulate the employment and attendance of children at school in Scotland.” It is an Education Act, pure and simple. It does not profess in any way to deal with the poor law, nor can it, in my judgment, be held to do so by any reasonable implication. I think it is plain, as your Lordship has pointed out, that the statute relied upon has nothing at all to do with the subject of the Poor Law. We must therefore, in my opinion, negative the contention of the first parties, and I agree that the questions should be answered as your Lordship proposes.

Lord Mackenzie—I concur.

The Court answered the first branch of each question in the affirmative.

Counsel:

Counsel for the First Parties—The Dean of Faculty ( Campbell, K.C.)— Orr Deas. Agents— Mackenzie, Innes, & Logan, W.S.

Counsel for the Second Parties— Hunter, K.C.— Addison Smith. Agents— R. Addison Smith & Company, W.S.
1907