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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> O'Donnell and Others v. O'Donnell [1918] ScotLR 13 (29 October 1918)
URL: http://www.bailii.org/scot/cases/ScotCS/1918/56SLR0013.html
Cite as: [1918] SLR 13, [1918] ScotLR 13
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SCOTTISH_SLR_Court_of_Session
Page: 13↓
Court of Session Inner House First Division.
v.
Facts:
Pupil children of Roman Catholic parents, of Roman Catholic antecedents, baptised in the Roman Catholic Church and brought up by their parents as Roman Catholics, whose mother had died, were left by their father, when he was setting out on military service, with his second wife, with instructions that she should “stick to the children.” The father was killed on military service. The stepmother, who was a Protestant, had previous to her marriage undertaken not to interfere with her husband's liberty to fulfil all his duties as a Roman Catholic. After the death of her husband she attempted to alter the religion of the children. Held, in a petition at the instance of the nearest male agnate of the children and others, craving delivery of the children to their maternal grandmother, a Roman Catholic, and for decree that she was entitled to the custody of them, that, all other considerations touching the interests of the children
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being equal, the expressed wishes of the father as to the religious upbringing of his children must prevail, and prayer of petition granted.
Daniel O'Donnell, John O'Donnell, and Mrs Catherine Coogan or M'Laughlin, brother, half-brother, and mother-in-law respectively of the deceased William O'Donnell, petitioners, brought a petition craving the Court, inter alia, to ordain Mrs Esther Lorimer Ferguson or O'Donnell, the second wife of William O'Donnell, to deliver to Mrs M'Laughlin the two pupil children of William O'Donnell, and to declare that those children should remain in her custody, and to find her entitled to their custody. Answers were lodged for Mrs Esther O'Donnell, respondent.
The petition set forth—“William O'Donnell, miner, who resided at 21 Newhouse, by Stirling, was killed while on active military service in the present war, on or about 13th August 1915, domiciled in Scotland. The parents of the said William O'Donnell were Roman Catholics. He was baptised and brought up in the Catholic faith, and he lived and died a Catholic. On or about 8th November 1902 the said William O'Donnell married Elizabeth M'Laughlin, who had also been brought up as, and lived and died, a Roman Catholic. She died on or about 10th January 1912. There were three children of the marriage—John, born on 8th November 1902; William, born on 11th February 1909; and Elizabeth, born on 3rd February 1911. Upon 28th September 1914 the said William O'Donnell married the [respondent], a Protestant, in St Mary's Catholic Church, Stirling. After her marriage, and until December 1915, she attended the Roman Catholic Church in Stirling. She, however, never became a Catholic, and since taking up residence at Pathhead, New Cumnock (where she still resides), in January 1916, she has not attended service in the Catholic Church. No child was born of the marriage last mentioned. All three children of the first marriage were baptised in the Roman Catholic Church. They regularly attended service in that Church with their parents, and were educated in Catholic schools. Shortly before her marriage the [respondent] subscribed a declaration whereby she solemnly promised and engaged (1) that all the children of both sexes of her marriage should be baptised in the Catholic Church, and should be carefully brought up in the knowledge and practice of the Catholic religion, and (2) that she would not interfere with the religious belief of the said William O'Donnell ‘nor with his full and perfect liberty to fulfil all his duties as a Catholic.’ In her knowledge one of his duties as a Catholic was the bringing-up of the said children in his religious faith, and until she left Stirling in January 1916 she accompanied the said children to the Catholic Church and sent them to the Catholic School there. The petitioner Mrs M'Laughlin, who is a Catholic, is the maternal grandmother of the said children. Since January 1916 the eldest child John has resided with her. He is and always has been a Catholic. William and Elizabeth, his younger brother and sister, have resided at Pathhead aforesaid with their stepmother since January 1916. For some time thereafter she sent William to the Catholic School at New Cumnock. From that school she withdrew him, and she is now sending him and the said youngest child to a non-Catholic school. Notwithstanding the protests of the petitioners she has recently been taking the said two children last named to a Protestant church, and has ceased to bring them up in the Catholic faith, although she admits—and it is the fact—that the said deceased William O'Donnell desired that his children should be brought up in that faith. Before her marriage the [respondent] was a servant in Stirling Poorhouse. Her house consists of a single apartment, the yearly rent of which is about £5, sparsely furnished, and containing one bed in which she sleeps with the said two children. As the widow of the said deceased William O'Donnell she receives an army allowance of 13s. 9d. weekly. Occasionally she earns 2s. or 3s. per week by sewing or knitting. She has no other source of income apart from the army allowances of 5s. weekly for the said boy William and 4s. 2d. for the said girl Elizabeth, which two allowances are payable to the custodier of the said children … No person has been appointed or nominated to act as guardian or tutor of the said children William and Elizabeth O'Donnell by their parents, who both died intestate. The petitioners believe and aver that the [respondent] intends to bring up the said two children as Protestants. To this the petitioners object, and they desire the said children to be brought up in the Roman Catholic faith. With the consent and concurrence of the other petitioners, the petitioner Mrs M'Laughlin is willing to take the said two children into her home, which is a comfortable house of two apartments, the yearly rental of which is about £9, 2s., and has adequate accommodation for them and their said brother John as well as her daughter Mrs M'Ateer (whose husband was killed on active military service in 1916) and Mrs M'Ateer's baby. In addition to a pension of 10s. weekly in respect of her son George (who was also killed on military service), Mrs M'Laughlin receives for the upkeep of the household the earnings and pension, amounting together to £2, 7s. 4d. or thereby, of the said Mrs M'Ateer and the wages of John O'Donnell last mentioned, amounting to £1 weekly—in all about £3, 17s. 4d. weekly. Mrs M'Laughlin is prepared to maintain the said children William and Elizabeth O'Donnell and to see to their proper education and upbringing in the Catholic Church in accordance with their parents' wishes. In the circumstances above set forth the petitioners submit that it is in the interests of the said two children that they should be in the care and custody of their said grandmother (who is 54 years of age) and not living separately from their said brother.”
The answers set forth—“… The respondent admits that she signed a form of declaration before her marriage in regard to religious matters, but she understood that all that it meant was that she was not
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to interfere with the religious belief of her husband or introduce any strife into the family over religious matters. With regard to the two youngest children, William attended the Roman Catholic School in Stirling from September 1914 till January 1916, and thereafter went to the Catholic School at New Cumnock for a few weeks. When Elizabeth first went to school in the beginning of 1916 she was sent to the Public School at New Cumnock, and William was sent with her. The respondent sent these children to the Protestant School because she thought that they would be better taught there. In that school there is a teacher for every class, while there is only one teacher in the Catholic School. The Public School at New Cumnock is one of the best elementary schools in Ayrshire. The said William O'Donnell was not a particularly strong Catholic, and never at any time asked the respondent to change her religion. When he was on leave shortly before going to France his last request was that if anything should happen to him respondent was “to stick to the children” and look after them, and she promised to do so. Nothing was then said about their religion, and the deceased well knew that respondent was a Protestant.… The income of the respondent's household as at the date when the petition was presented is correctly stated in the petition with the exception that respondent gets her rent and taxes paid and also receives an allowance for boots from a relief fund and coals from the church. The room the respondent occupies is large, is adequately furnished, and is quite sufficient for the accommodation of herself and the children. It would be very much against the wishes of the children if they were taken from the respondent, by whom they are well cared for. The children look upon the respondent as their mother, and they are all very happy together.… The respondent respectfully submits that she is entitled to the custody of the children and is bound to look after them especially in view of her husband's expressed last request that she should retain the custody of and look after them, and that she should be left at liberty to have them educated and religiously instructed in the way she thinks most suited to their best interests.” Argued for the petitioners—The respondent had no title to object. She was merely the stepmother of the children; the petitioners were the nearest relatives of the children, and included their nearest male agnate. If, however, the respondent had a title, her answers were irrelevant, and the father having expressed his wishes as to the religious upbringing of the children, the respondent could not defeat his wishes— Reilly v. Quarrier, 1895, 22 R. 879, 32 S.L.R. 664; in re Scanlan, 1888, 40 Ch D 200, per Stirling, J., at p. 207.
Argued for the respondent—There was no question of the respondent's title; she was acting for the interests of the children; the father had bequeathed them to her and she was maintaining them at a loss. If any suggestion as regards her suitability was made, there should be a remit for inquiry. A stepmother had been regarded as a suitable custodier— Black v. Ferguson, 1866, 4 Macph. 807, 2 S.L.R. 79. The father had chosen the respondent to replace the mother of those children. The condition to which the respondent had agreed only applied to her own children and only stante matrimonio, and in any event the father had thereafter left the children to the respondent without any stipulation as to religious upbringing. He might well have changed his views. In any event the father's wishes were not conclusive— Morrison v. Quarrier, 1894, 21 R. 889, and 1071, 31 S.L.R. 718 and 844. In leaving the children to the respondent the father had given her power over them quoad omnia.
I do not seriously differ from the way in which Lord Adam and Lord M'Laren laid down the law in the cases which were cited to us— Morrison v. Quarrier, 1894, 21 R. 1071, 31 S.L.R. 844, and Reilly v. Quarrier, 1895, 22 R. 879, 32 S.L.R. 664—but for my own part I am quite ready to adopt the expression of the law from the lips of Mellish, L. J., in the case of Andrews v. Salt, 1873, 8 Ch. 622, to the effect that “the law unquestionably does give great weight to the right of a father to have his children educated in his own religion both during his lifetime and after his death; and if a father has done nothing to forfeit or abandon his right to have his child educated in his own religion, we think that the Court cannot refuse to order a child to be educated in the religion of its father because it thinks that the child would be more happy and contented and possibly be better provided for elsewhere.”
I agree with the view which we all entertain that the interest and welfare of the children is the paramount consideration in questions of this kind. If in the present case I were to have regard to that principle alone and to nothing else, then I should certainly refuse the prayer of this petition, because the respondent offers, as I think, a perfectly suitable home for the two children, who are at present living with her, and she avers—I assume with accuracy—that the father before he went to the front expressed a clear desire that she, his second wife, should retain the custody of the children. But then she says distinctly that she desires to retain the custody of the children in order that she may be “left at liberty to have them educated and religiously instructed in the way she thinks most suited to their best interests;” and in her view the way in which they ought to be educated is by being sent to a board school—in other words, a Protestant school.
Now that seems to me to be entirely contrary
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Under these circumstances it appears to me that the petitioners here are entitled to succeed, because they offer a home which undeniably is quite suitable. The income that comes in every week—£3, 17s. 4d., and probably something more when these two children are placed in the maternal grandmother's custody—is ample to maintain them and to have them decently brought up. The challenge of the grandmother's character I discard as being entirely irrelevant and insufficient to support the plea to the effect that she is an unsuitable guardian for these children. It is made very late in the day, and is so vague that I think we are entitled to disregard it altogether. She herself is a Roman Catholic, and she undertakes that the children will be brought up in the Roman Catholic faith. It is undeniable that such a small family as this is—these three children—should live together under one roof and be brought up in one home. The home is suitable, and the maternal grandmother, I think, is a suitable person to have charge of the children.
In these circumstances I see no reason why the prayer of the petition should not be given effect to, and I move your Lordships accordingly.
If she had come into Court stating that she was prepared to carry out the good faith of the undertaking to which she set her hand before her marriage, and that the children would be continued in the Roman Catholic Church, into which they were baptised, I think the case would have been entirely different. But in the concluding paragraph of her answer the respondent makes it quite clear that she is to be entitled, if her position is vindicated, to look after the children and be left at liberty to have them educated and instructed in the way she thinks most suited to their best interests.
Now the whole history of the case shows that this is a Roman Catholic family. The grandparents are described as having been Roman Catholic, the father as having been baptised and brought up in the Roman Catholic Church, and the mother was in the same position. The children were baptised in the Roman Catholic Church, and they regularly attended services in that Church with their parents, and it is stated that they were educated at a Roman Catholic school. Now I think that giving a fair construction to the undertaking which was signed by the respondent in this case, that meant that the education of these children should be continued to be given by that denomination. And accordingly upon that ground I take the view that the position of the respondent is not justified.
I think the case really turns upon that, and had it not been for the attitude adopted by the respondent I can see nothing which would necessitate the removal of the children from her care. As to the other features of the case—that it is desirable that the children should live in family together—I do not think that would have been sufficient to induce the Court to remove the children from their present custodian. The averments in regard to the character of the female petitioner Mrs M'Laughlin are in my opinion altogether wanting in sufficient specification to induce one to pay any attention to them.
With regard to the offer made by the Solicitor-General that he was prepared to give guarantees that the children should be educated in a proper manner, I am unable to see that that would really advance their interests, or how the guarantee could be so framed as to give a sufficient title to the respondent to enforce it.
I assume, of course, that if the respondent desires to have access to the children, that would be a matter for separate motion in the petition, which remains in Court.
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I therefore think that the prayer of the petition ought to be granted, because it is plain that the respondent desires to use the custody for the purpose of changing the religion of these children. In other respects I do notdoubtthat she is a suitable custodier.
The Court decerned and ordained the respondent to deliver the pupil children to the petitioner Mrs Catherine Coogan or M'Laughlin.
Counsel for the Petitioners—The Solicitor-General ( Morison, K.C.)— Scott. Agent— Charles George, S.S.C.
Counsel for the Respondent— Macquisten. Agent— Francis Chalmers, W.S.