Scottish Court of Session Decisions

The Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27) enacts—Section 5—“The Court may, upon the application of the mother of any infant, … make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant and to the conduct of the parents, and to the wishes as well of the mother as of the father.…”

Colonel William Maclaren Campbell, M.V.O., petitioner, brought a petition against his wife Dorothy Clotilda Campbell, respondent, craving the custody of his infant child Anne Elspeth Campbell.

Answers were lodged for the respondent.

The facts of the case as they appeared from the pleadings were—The petitioner was a domiciled Scotsman. He was born in 1864, and in 1885, after passing through Sandhurst, he was gazetted to the Black Watch. From that date till the date of the petition he had been on service, and his only residence had been the place of his duties. He married the respondent on 6th August 1914, who was then a widow with one daughter of five years of age. Under the will of her first husband the respondent was entitled to reside at Old Warden Park, Biggleswade, Bedfordshire, with her child till it reached majority, and she enjoyed a jointure of £15,000 a-year subject to the condition that she should make her principal residence at Old Warden Park. If she failed to do so her jointure was to be restricted to one-half. After their marriage the parties did not take up house together. The respondent continued to reside at Old Warden Park, and the petitioner as the exigencies of his service permitted stayed with her there on several occasions. Disagreements arose between the parties with reference to matters of domestic management. On 16th August 1917 the respondent gave birth to the child Anne Elspeth Campbell. The disagreements between the parties continued down to the date of the petition in spite of the petitioner's efforts to bring about a reconciliation, and at the date of the petition the parties were living separate. The child of the marriage lived all along at Old Warden Park with the respondent. The petitioner saw his child there occasionally. The respondent on those occasions absented herself. On the date of the petition the petitioner expected to be shortly demobilised, and he intended thereafter to take a house in Scotland and to make a home there for himself, his wife, and child. He was then in command of the Tay Defences, and had obtained temporarily a suitable residence near his headquarters, to which he invited the respondent to come, bringing the child. The respondent refused to do so, and thus made it impossible for the petitioner to see his child except when on leave. The respondent obtained the issue of a writ from the Courts in England against the petitioner craving that the custody of the child should be committed to her during its minority or until further order.

The petition was partly heard in the Summer Session of 1919 and was continued. At the postponed hearing it appeared from the statement of counsel for the parties that the following additional facts and circumstances had occurred, viz., that the English Courts had pronounced an order for service of the respondent's writ for custody upon the petitioner, but had recalled that order on discovering that the petitioner was out-with their jurisdiction; that the respondent had thereafter made a settlement upon the child, and that an application had been presented by the child's next friend to have her made a ward in Chancery. It was stated by counsel for the respondent that immediately on presentation of such an application, and pending the hearing on the merits, the child became a ward in Chancery. It was further stated on behalf of the petitioner that he had taken a house at St Andrews, and had invited the respondent to come and reside there with the child, but that the respondent had refused to do so or to give up the custody of the child and had made certain proposals for the settlement of the differences between the parties, but which involved the retention of the custody of the child by her.

Argued for the petitioner—Admittedly no attack could be made on the suitableness of either parent as guardian. The cause of quarrel was simply incompatibility of temperament. In those circumstances the case raised a perfectly general question; and it was also pleaded that the Scottish Court was not forum conveniens. Upon the latter point the Scottish Court was not only forum conveniens but the only competent court. The question was one of status, viz., the permanent custody of an infant child of Scottish domicile. The only competent forum in such a case was that of Scotland, the forum of the father, the mother, and the child— Barkworth v. Barkworth, 1913 S.C. 759, 50 S.L.R. 504; Wester-gaardv. Weslergaard, 1014 S.C. 977, 51 S.L.R. 781; In re Willoughby (an Infant), 1885, 30 Ch. D. 324, per Kay, J., at page 329. The Scottish Courts could, no doubt, exercise a jurisdiction over all incapaces found within Scotland, but that arose purely ex necessitate, and was of a purely protective and interim character. If the English Courts had any jurisdiction at all, it could only be of that protective and interim character.

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The general question was whether the father or the mother, in the absence of any question of suitability as guardian, was entitled to determine the custody and place of residence of the child in question. At common law the father was the head of the household, with the right to the society of his wife and the custody of his children and the right to determine where they should reside. It was not for the wife, as she endeavoured to do in the present case, to dictate the place of residence of the family—Fraser, Husband and Wife (2nd ed.), p. 867. In the present case the respondent's jointure was not imperilled, for the petitioner disclaimed demanding from her any such adherence to him in Scotland as would cause Old Warden Park to cease to be her principal residence. At common law the Scottish Courts had always considered the whole circumstances of each case, even before the Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), which applied to England as well as to Scotland. The father, if it would not harm the child to live with him, had the legal right to its custody at least after weaning; and if the mother chose, as she did here, to live apart from him for reasons which did not entitle her to separation, she had no claim to the custody of the children, for it was in her power at any moment to end the separation, and it was her legal duty to adhere to her husband. The Act of 1886 did not alter the common law; it left the father the head of the household, and re-enacted the circumstances which in Scotland had. always been considered by the Court in such applications— Mackellar v. Mackellar, 1898, 25 R. 883, per Lord M'Laren at p. 885, 35 S.L.R. 483; Sleigh v. Sleigh, 1893, 30 S.L.R. 272, per Lord M'Laren at p. 275. Even where the child was of tender years and there were facts against the father, so long as those facts did not render him likely to cause detriment to a child entrusted to his care, he was entitled to the custody both before and after the Act of 1886— A C v. BC, 1902, 5 F. 108, 40 S.L.R. 87; Rintoul v. Rintoul, 1898, 1 F. 22, 36 S.L.R. 21; Bloe v. Bloe, 1882, 9 R. 892, 19 S.L.R. 595; Lilley v. Lilley, 1877, 4 R. 397, 14 S.L.R. 281; Nicolson v. Nicolson, 1869, 7 Macph. 1118, 6 S.L.R. 692. Stevenson v. Stevenson, 1894, 21 R. 430, 31 S.L.R. 350 and 500, 21 R. (H.L.) 96, 31 S.L.R. 942, was in the petitioner's favour, and the remarks therein only applied when the spouses were living together. If a wife disregarded the father's testamentary directions with regard to the children, that was a circumstance which might cause her to lose the custody. The prayer of the petition should be granted.

Argued for the respondent—The Scottish Court was forum non conveniens. The child in question had lived all her life in England and her mother was English. Her sole relation to Scotland was one of law not of fact. Prior to the present proceedings the question of her custody had been raised in the English Courts in a competent process, and as the result of the proceedings in Chancery the child was a ward in Chancery— Johnstone v. Beattie, 1843, 10 Cl. & F. 42, per Lord Lyndhurst, L.C., at p. 81; The Guardianship of the Marquis of Bute, 1861, 4 Macq. 1. Admittedly no question was raised as to the suitability of either spouse as guardian. Prior to 1886 the father was the head of the household, and all other things being equal was in law entitled to prevail in a question of the custody of the children, but by the Act of 1886 both parents had been placed on an equal footing and the father's right no longer preponderated— Stevenson v. Stevenson ( cit.); Reid v. Reid, 1901, 3 F. 330, 38 S.L.R. 237; Robertson, Petitioner, 1911 S.C. 1319, 48 S.L.R. 994; In re A and B (Infants), [1897], 1 Ch. 786, per Lindley, L.J., at p. 790, and Rigby, L.J., at p. 794. The cases cited by the petitioner in so far as they did not follow Stevenson's case ( cit.) were not well decided. No doubt the conduct of the parties towards each other as well as to the child must be considered— Stevenson's case ( cit.), per Lord Herschell, L.C., at p. 99—but here there was nothing to choose between them. In those circumstances the result would be that the custody must be equallydivided between the spouses. But in the present case the child was afemale of tender years who had always lived with her mother. In those circumstances the respondent was entitled to her custody, for she was the natural and proper guardian of such a child— Stevenson's case ( cit.), per Lord Herschell, L.C., at p. 99. Further, there was the consideration that if the respondent made her home elsewhere than at Old Warden Park her jointure would be substantially reduced.

At advising—