Scottish Court of Session Decisions

On December 13, 1907, Mrs Suzanne Van Valkenburg or Hamilton or Ziegler, wife of Edward Ziegler, journalist, New York City, U.S.A., and at one time the wife of James Neilson Hamilton, merchant, of Hamilton von Glehn & Company, Limited, London, E.C., presented a petition in which she craved the Court to find that she was entitled to free access at all reasonable times to James Hamilton, the only son of her marriage with Hamilton.

Hamilton lodged answers.

The petitioner, who was then a domiciled American, and the respondent, a domiciled Scotsman, were married in New York on 11th April 1898. There were born of the marriage two children—the son James, born 15th November 1900, and a daughter, Alice Suzanne, born 13th October 1903. The Superior Court of the State of Indiana, U.S.A., on 8th June 1905, pronounced a decree dissolving the marriage, at the instance of the petitioner, and, as stated, on the ground of cruel conduct on the part of the respondent. This decree awarded the custody of the daughter to the petitioner and the custody of the son to the respondent, and the defender in that action did not oppose, the matter having been arranged previously. On 11th September 1905 the petitioner married Ziegler and was living with him as his wife in America. In 1907 the respondent Hamilton raised in the Court of Session an action of divorce on the ground of adultery against the petitioner, now Mrs Ziegler, and, the action being undefended, obtained decree on 20th July, the Lord Ordinary in the case holding that the American decree was no bar to the action, as it proceeded upon the ground of cruelty, not recognised by the law of Scotland, and stating in his opinion—“The adultery which is the basis of the summons is said to have taken place during a period prior to 30th September 1904, and to have only come to the pursuer's knowledge subsequent to the divorce proceedings. I think the adultery during the period is sufficiently proved.” The Scotch decree did not deal with the custody of the children. The son James, with the consent of the respondent, was taken charge of for some time—said to be up to 15th June 1906—by the petitioner's mother Mrs Peirce, in America and in England, and subsequently by the respondent's relations in Glasgow, where he still was, and where he was being educated at the Glasgow Academy.

The petitioner made general averments of neglect on the part of the respondent from early in their matrimonial life, of his long and frequent absences, more particularly at the time of the births of the children, of his failure to supply sufficient maintenance, of his want of affection for the children, and of cruel and harsh treatments towards the boy, and stated—“(5) The petitioner, who has always been devoted to her children, who have returned her affection, desires to have access to her son, but the respondent refuses to allow her any access at all. The petitioner is willing to come to this country for the purpose, and to see her son at such times and places and under such conditions as may seem suitable to your Lordships.”

The respondent denied the petitioner's general averments, and explained his absences and his having left the son with Mrs Peirce to his having had to go on business and remain at Bussorah in Arabia. He averred that the petitioner had never cared for or taken any interest in the son, and that the petition was presented in the interest of Mrs Peirce, who was anxious for his custody, but under whose influence,

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or that of the petitioner, and her mode of life, it was not in the interest of the boy to come to any extent.

In reply to the answers the petitioner lodged a minute in which she stated—“ Reply 5. Admitted that Mrs Peirce, who is devoted to the boy, has for a considerable time endeavoured to induce the respondent to allow her to have some custody of the boy. Further admitted that the petitioner is not at present in this country. Quoad ultra the averments in answer are denied. The petitioner is willing and intends to come to this country as soon as her presence is required in course of the proceedings. The petitioner has never been anything but kind to her two children. On 19th June 1905 she wrote a letter to her mother, in which she begs to see her boy. This letter was opened by the respondent and kept by him from Mrs Peirce until February 1906. In August 1906 the petitioner came to London in the hope of seeing her son, but was unable to do so. In April 1907 Mrs Peirce offered, on condition of being allowed a limited custody of the boy, to maintain, clothe, and educate him, and to make an inter vivos settlement in trust for his behoof of a sum sufficient to yield £150 to 200 per annum, the income to be paid Mrs Peirce for her life, and the fee to be held for behoof of the boy.… Mrs Peirce resided in England, with the exception of one or two short absences, from February 1906 until 1st August 1907, since which date she has resided in Scotland, and she is willing to make a home in this country where the boy could be received by the petitioner. Reply 6…. The respondent's cruelty to the boy began soon after he joined the family in New York in 1902. On one occasion he struck the boy a severe blow on the head with a beer bottle ‘to make him keep quiet.’ In the spring of 1903 in New York he administered a brutally severe whipping to the boy for a childish fault at a time when he knew the child was slowly recovering from an attack of diphtheria and was very weak. In January 1906 he boxed the child's ears in a brutal fashion in the public diningroom of the Hotel St Lorenz in New York. When leaving New York for London with Mrs Peirce and the boy at the end of January 1906, the respondent refused to purchase any warm clothing for the boy on the voyage, with the result that Mrs Peirce had to buy it. Later, while visiting Mrs Peirce and the boy at Hastings, the respondent took the boy to a swimming-pool and kept him in the water for about an hour and a-half and boasted of the fact, although the child was then ailing and under the care of a doctor. The result was a severe attack of inflammation of the bladder. These are some instances only of the respondent's systematic cruelty and indifference.”

It appeared from letters produced that during the whole of the family troubles Mrs Peirce had taken a great interest in and care of the son Jamie; that at one time she had taken him with her away from his mother, about which she wrote—(Cambridge City, Indianopolis, May 15, 1905) “… I came here Friday last, bringing Jamie as in case of your unexpected arrival in Ind'p's it seemed best that the child should be away till some course of action should be decided on. He has been having whooping cough and is far from well. He must be protected from ‘scenes’ and from ‘threats,’ and his mother has repeated to me recently and to others her old threat of suicide and killing the children. I do not suppose there is really any danger of anything so terrible, but she might do something or say something that would make a life-long impression on a child of Jamie's age and understanding”; that at a time (11th July 1905) subsequent to the American decree she had been afraid the petitioner would try to get him away from her, about which she wrote—“It would be a terrible thing for all of us, but worst of all for Jamie”; and that she had made proposals as to her having a share in his custody and making provision for him.

The petitioner argued—(1) Adultery per se was never a sufficient reason for excluding the mother entirely from access to her children— Bowman v. Graham, July 17, 1883, 10 R. 1234, 20 S.L.R. 816; Symington v. Symington, March 18, 1875, 2 R. (H.L.) 41, 12 S.L.R. 416. Beyond adultery no charge was made against the petitioner, and in the question whether her conduct was such as to disentitle her to access present conduct alone was to be looked to— A C v. B C, November 12, 1902, 5 F. 108, per Lord Justice-Clerk at p. 111, 40 S.L.R. 87. The fact that the petitioner was living in America was no bar to granting access, which was sought in this country— Allan v. Allan's Trustees, July 20, 1869, 41 S.J. 617. (2) Since the Guardianship of Infants Act 1886 (49 and 50 Vict. c. 26) the sole criterion was the welfare of the child, and prima facie the mother was entitled to access. The onus lay on the person resisting the application for access to show that if it were granted there would be reason to apprehend danger to the child's physical or moral welfare—Guardianship of Infants Act 1886, sec. 5; Mackellar v. Mackellar, May 19, 1898, 25 R. 883, 35 S.L.R. 483; Sleigh v. Sleigh, January 20, 1893, 30 S.L.R. 272; Stevenson v. Stevenson, June 5, 1894, 21 R. (H.L.) 96, 31 S.L.R. 350. The case of Handley v. Handley, [1891] P 124, had no application, as it was based on an English statute, and the judgment of the Court of Appeal was a mere refusal to interfere with the discretion of the judge who tried the divorce case.

The respondent argued—Where a wife has been divorced for adultery the rule of law both before and after the Guardianship of Infants Act 1886 was, that unless in exceptional circumstances the husband had an absolute discretion as to his wife's access to the children— Bowman v. Graham ( cit. sup.); Handley v. Handley ( cit. sup.): Bent v. Bent, 1861, 30 L. J. P. 175; Clout v. Clout, 1861, 30 L.J., P. 176. Section 5 of the Guardianship of Infants Act 1886 did not apply to cases where there had been divorce,

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but section 7 did apply to such cases, and it in no way changed the common law. The circumstances here were not such as to take the case out of the ordinary rule, but, on the other hand, they established the probability of danger to the child's welfare if the application was granted. The cases cited by the petitioner were not authorities in her favour. Mackellar v. Mackellar ( cit. sup.), Sleigh v. Sleigh ( cit. sup.), and A C v. B C ( cit. sup.), had nothing to do with either divorce or separation. In Symington v. Symington ( cit. sup.) the Court held that the husband had done nothing to forfeit his common law right of custody. In none of these cases had the wife been guilty of adultery. The case of Allan v. Allan's Trustees ( cit. sup.) was a question between a widow and her deceased husband's trustees.