Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Glasgow by Mary Ann M'Cann or Gillan, widow of William Patrick Gillan, formerly an ironwork labourer, and subsesequeutly a carter in Glasgow, against the Parish Council of the Barony Parish of Glasgow.

The pursuer prayed the Court “To ordain the defenders to deliver to the pursuer each and all of her children, videlicet—George Gillan, Agnes Gillan, William Patrick Gillan, and James Gillan, presently in their custody or under their control, and failing their doing so within such period as the Court shall appoint, to grant warrant to officers of Court to search for each and all of the said children, and take possession of each and all of them, and deliver each and all of them to the pursuer; as also, on delivery of each and all of the said children having been made to the pursuer, to interdict the defenders from interfering in any way with the pursuer in her possession and custody of each and all of them; and to find the defenders liable in expenses.”

The pursuer averred that she was married to William Patrick Gillan on 31st December 1886 according to the forms of the Roman Catholic Church, and that the four children referred to in the petition were born of this marriage—on 11th October 1887, 11th April 1889, 28th April 1891, and 25th January 1895 respectively; that her husband was admitted to Barnhill Poorhouse on 8th June 1895, and died there a few days later; that from that date till January 1896 the pursuer was paid sums varying from four to six shillings weekly on behalf of her children; that in May 1896 the pursuer consented to her three eldest children being sent to the Children's Refuge on condition that they were returned to her as soon as she got a suitable house; that these three children, notwithstanding this arrangement, were transferred without her knowledge or consent to the custody and keeping of the defenders; that shortly thereafter she and her youngest child were admitted to the defender's poor-house, but that she only remained there a few days, and on leaving requested the defenders to allow her to get the custody of her children and to take them with her, but that the defenders refused to do this, and that since then she had frequently applied for delivery of her children, but that the defenders not only refused to accede to this request, hut even refused to allow her to interview, or to afford her any information concerning any of them, except the youngest, whom she was allowed to see for three hours in one day in each month. She also averred as follows:—“The pursuer is both willing and well able to support each and all of her said children, and desires their custody and keeping, which the defenders refuse to give her, in consequence of which the present action has been rendered necessary.”

The defenders averred that the pursuer's children were admitted in the ordinary way as proper objects of parochial relief in consequence of their mother's destitution; that she had left the poorhouse voluntarily, leaving all her children in the custody of the defenders, and that the three eldest children hail been boarded out with respectable people in the country, and that their health and character were being carefully attended to. They also averred as follows:—(Ans. 7) “Admitted that the defenders have refused to deliver the said children to the pursuer. Explained that the pursuer is unable to house, feed, clothe, or educate her children, and is not a suitable person to have the care and upbringing of the young children whom she voluntarily left to the care and in the custody of the defenders.”

The Guardianship of Infants Act 1886 (49 and 50 Vict. c. 27) enacts as follows:— Sec. 5—“The Court may, upon the application of the mother of any infant (who may apply without next friend), 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, and may alter, vary, or discharge such order on the application of either parent, or after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother and the liability of the father for the same, or otherwise as to costs as it may think just.” Sec. 9—“In the construction of this Act the expression the Court' shall mean … In Scotland the Court of Session or the Sheriff Court within whose jurisdiction the respondent or respondents, or any of them, may reside.”

Page: 136↓

The Custody of Children Act 1891 (54 and 55 Vict. c. 3) enacts as follows:— Sec. 1—“Where the parent of a child applies to the High Court or the Court of Session for a writ or order for the production of the child, and the Court is of opinion that the parent has abandoned or deserted the child, or that he has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the child, the Court may in its discretion decline to issue the writ or make the order.” Sec. 2—“If at the time of the application for a writ or order for the production of the child, the child is being brought up by another person, or is boarded out by the guardians of a poor-law union, or by a parochial board in Scotland, the Court may, in its discretion, if it orders the child to be given up to the parent, further order that the parent shall pay to such person, or to the guardians of such poor-law union, or to such parochial board, the whole of the costs properly incurred in bringing up the child, or such portion thereof as shall seem to the Court to be just and reasonable, having regard to the circumstances of the case.” Sec. 3—“Where a parent has ( a) abandoned or deserted his child, or ( b) allowed his child to be brought up by another person at that person's expense, or by the guardians of a poor-law union, for such a length of time and under such circumstances as to satisfy the Court that the parent was unmindful of his parental duties, the Court shall not make an order for the delivery of the child to the parent, unless the parent has satisfied the Court that, having regard to the welfare of the child, he is a lit person to have the custody of the child.”

The pursuer pleaded—“(l)The defenders, having by stealth and without legal sanction, deprived the pursuer of the custody of each of her said children, George Gillan, Agnes Gillan, and William Patrick Gillan, she is entitled to have each of them restored to her. (2) The defenders having been trusted with the pursuer's child, the said James Gillan, during the pursuer's pleasure only, and having no legal right to retain it in their custody against the pursuer's will, they should be ordained to restore it to the pursuer.”

The defenders pleaded—“(1) No jurisdiction. (2) The pursuer having voluntarily left her children to the care and custody of the defenders, and having regard to the welfare of the children, she not being a fit person to have the custody of the children, the petition ought to be dismissed. Separatim—(3) If decree shall be pronounced as craved, it should be on condition only of the defenders being reimbursed by pursuer of the whole costs properly incurred in bringing up the said children.”

On 24th May 1898 the Sheriff-Substitute ( Guthrie) issued the following interlocutor:—“Finds that this Court has no jurisdiction in the cause; therefore dismisses the action, and decerns,” Ac.

The pursuer appealed to the Court of Session, and argued—At common law the Sheriff had jurisdiction to entertain this petition— Goadby v. Maccandys, July 7, 1815, F.C., where the jurisdiction of the Sheriff was assumed; Brand v. Shaws, February 24, 1888, 15 K. 449, per L.P. Inglis at p. 453 and Lord Adam at p. 454. The Legislature had given the Sheriff jurisdiction under the Guardianship of Infants Act 1886. This was an application made at common law, and not under the Custody of Children Act 1891. [ Lord Trayner—Even if your petition is competent at common law, may not the defence raise questions under the Custody of Children Act 1891 which the Sheriff has no jurisdiction to decide?] There were here no averments relevant to found a defence under that Act. Nothing more was alleged than that the mother was not a “suitable person.” That was not sufficient. It was not averred that the mother had abandoned or deserted the children. All that was alleged was that she had “voluntarily left them” with the defenders. Nor was anything said as to why the mother was not a “suitable person.” There were no specific allegations of improper conduct on her part. The Court was not empowered under the Custody of Children Act 1891, section 2, to make the payment of the expense incurred in bringing up the child a condition of making the order as to custody. [ Lord Young referred to Dove Wilson on Sheriff Court Practice, p. 54.)

Argued for the defenders—The interlocutor of the Sheriff-Substitute was right. At common law the Sheriff had no jurisdiction to determine permanent questions of custody—Fraser on Parent and Child, 2nd ed., p. 81; Mackay's Manual, p. 537; Dove Wilson, loc. cit.; Hood v. Hood, January 24, 1871, 9 Macph. 449. Questions of permanent custody were dealt with by the Inner House in virtue of its nobile officium—Mackay's Manual, loc. cit., and this was inconsistent with the Sheriff having jurisdiction to entertain such petitions. The fact that the Court of Session alone was mentioned in the Custody of Children Act 1891 showed that in the view of the Legislature that Court alone had jurisdiction in such questions. Under the last-mentioned Act it was plain that the Court of Session alone had jurisdiction, and questions under that Act were relevantly raised upon this record. The defenders, however, were willing that the course followed in Mackenzie v. Keillor, July 6, 1892, 19 R. 963 (see p. 965 of the report), should be adopted, and the case of consent remitted to the Sheriff-Substitute for inquiry, the petition being treated as if it had originally been brought in the Court of Session.