Scottish Court of Session Decisions

On 28th November 1891 Mrs Elizabeth Murphy or Flannigan, residing at Upper Drumquill, county Monaghan, Ireland, with consent and concurrence of James Flannigan, also residing there, presented a petition to the Court, in which she stated “that the petitioner's son Matthew Flannigan, labourer, King Street, Rutherglen, took ill of fever in the middle of November 1890, and when the fever was at its height, namely, on the 30th of November, he rose from his bed, went out of the house, and has never since been heard of. He is believed to have been drowned in the Clyde. He was a widower, and he left four children—Francis Flannigan and Catherine Flannigan (twins) aged sixteen years, both now

Page: 782↓

residing with the petitioner, and Mary Flannigan, born 19th February 1878, and Rose Flannigan, born 16th May 1879. The two last-named children became chargeable to the parish of Bothwell, and the Parochial Board of said parish still maintains them and has charge of them, but declines to disclose their whereabouts to the petitioner. The petitioner's son James Flannigan, their uncle, who resides with the petitioner, in the beginning of October 1891 applied to Mr James Muir, inspector of poor of the said parish of Bothwell, as representing the petitioner, to get the custody of the said children Mary Flannigan and Rose Flannigan, but Mr Muir wrote him on 16th October refusing the application, and he subsequently repeated his refusal, and declined even to give the address of the children, although informed that the elder children above named were residing with the petitioner. The petitioner is able to maintain the said Mary Flannigan and Rose Flannigan, and desires their custody. The said James Flannigan, the children's uncle, concurs in the present application. They have no other near relative.”

The petitioner therefore craved the Court to order service of the petition on James Muir, as representing the Parochial Board of the parish of Bothwell, and thereafter “to find that the petitioner is entitled to the custody of the said children Mary Flannigan and Rose Flannigan; and to decern and ordain the said James Muir, as representing the Parochial Board of the said parish, forthwith to give the address of the said children and to deliver up the said children to the petitioner.”

On 16th December 1891 the respondent lodged answers, in which he stated—“The respondent admits that Mary Flannigan and Rose Flannigan, daughters of Matthew Flannigan, labourer, who in 1890 resided at King Street, Rutherglen, became, and are still chargeable (both being boarded out) to the parish of Bothwell, in which parish their said father, and they through him, had at the date of chargeability their parochial settlement. The said Mary and Rose Flannigan were both born in Scotland, the former on 1st July 1877 and the latter on 16th May 1879, and thus are both minors. The elder, Mary, is now about to enter domestic service iu Scotland. The respondent further admits that Matthew Flannigan disappeared about 30th November 1890, but his death is not admitted. The respondent admits that he, as inspector foresaid, has declined to give the custody of Mary and Rose Flannigan to the said James Flannigan, or to disclose their address. In so refusing to give the custody to the said James Flannigan, or to the present petitioner, the respondent is acting in accordance with the instructions of his board, and as he and the said board believe, in the best interests of the minors. The said minors themselves expressly desire that they should remain in Scotland, where they were born and have been brought up. They have never seen either the petitioner or the said James Flannigan. The respondent denies that the petitioner is in a position to maintain the said Mary and Rose Flannigan. She is tenant of a small holding, five acres in extent, the rent of which is £3 per annum, and has no other means of subsistence. The concurring petitioner also lives on said holding, and the respondent believes and avers that the said minors would, if sent to the petitioner, be sent out to work for the support of the petitioner. The whole circumstances have been laid before the Board of Supervision, and the position of the respondent has received their sanction and approval.”

The respondent therefore submitted “that the prayer of the petition should be refused, in respect—(1) The petitioner has not set forth, and does not possess, any title to insist in said petition. (2) The said Mary and Rose Flannigan, being both minors puberes, are entitled to choose their place of residence, and they have declined to go to Ireland. (3) The petitioner is not in a position to maintain said minors. (4) Under the provisions of 54 and 55 Vict. cap. 3, the Court has in such cases discretion to consider the special circumstances of each case, and, in particular, it is provided by section 4 thereof that ‘Nothing in this Act contained shall interfere with or affect the power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice;’ and the said minors have made their own free choice to remain in Scotland.”

On 20th February 1892 the Court appointed the respondent James Muir to intimate the petition and answers to Rose Flannigan and also appointed Mr George Gillespie, Advocate, curator ad litem to the said Rose Flannigan, and allowed him to see the process.

On 8th March Mr Gillespie reported to the Court “that since his appointment he had had a meeting in Edinburgh with his ward, who had come to Edinburgh in the care of a daughter of the person with whom she is now boarded. The ward was healthy looking, well dressed, and evidently well cared for. The girl who accompanied her was eighteen years old, of exceptionally good manners, neat and well dressed. She was very kind in her behaviour to the ward, who, again, seemed much attached to her. The curator had some talk alone with the ward. She spoke quite frankly and intelligently. She stated that the family with whom she was boarded, fed and lodged her well, and were kind to her. They were Catholics, and she attended a convent school. The curator observed that she could read well, and could write fairly. Her sister Mary, she stated, was in service in the country town in which she (the ward) is boarded, and came to see her frequently. Mary had, before she went to service, boarded with the same family as the ward now boards with. She expressed most distinctly her determination not to go to Ireland, or to see her grandmother or uncle. The curator is satisfied that this determination is genuine, and has not been inspired by anyone. It depends not on any dislike of

Page: 783↓

Ireland or her relatives,—for she has never been in Ireland, and never heard anything of her relatives either from her father while he lived, or from anyone else,—but upon her liking for her present surroundings and her prospects. She intends, in about two years' time, to go into service, like her sister. Her determination not to go to Ireland is so strong that, in the opinion of the curator, nothing short of force would induce her to go. She is boarded with a labourer in a country town. His wages are about 20s. a week. He has living with him his wife, two sons, aged respectively twenty and seventeen, and earning respectively 20s. and 12s. a week, and he has two daughters aged twenty-four and eighteen. The elder daughter is a domestic servant, and is not resident with her father. The other daughter was the girl whom the curator saw. She gave both the Flannigans excellent characters, and confirmed generally what the curator had been told by the ward herself. She had been educated in the same school as that which the ward now attends. There was laid before the curator the information which the respondent had collected, by correspondence and by a visit to the locality, as to the character and the circumstances of the petitioner and her son James Flannigan. Prima facie it justifies the statement made in the answers. Looking to the whole circumstances of the case, and in particular to the plain determination of the ward, the curator adopts the answers lodged by the respondent, and concurs in craving the Court to refuse the petition.”

During the argument counsel for the petitioner intimated that she no longer insisted in the prayer of the petition so far as it referred to the custody of Mary Flannigan.

Argued for the petitioner—The petitioner had a title to ask the Court to order the respondent to deliver up the child to her— Denny v. Macnish, January 16, 1863, 1 Macph. 268. The petitioner was only doing her duty in coming forward to support the child, and the Parochial Board were not entitled to pauperise the child when her relatives were willing to support her. A father was entitled to regulate the residence of his child even after the latter attained puberty—Erskine's Principles, i. 7, 36—and here the petitioner was in loco parentis. 55 and 56 Vict. cap. 3, sec. 5, defined parent as “any person at law liable to maintain such child or entitled to his custody.” Even if the wishes of the minor influenced the question, and she was entitled to choose her place of residence, it was quite impossible for her to make an unbiassed choice without seeing the petitioner or hearing the petitioner's view on the matter. She could not judge without knowing the other side. Many cases could be cited in which the Court had ordained the person having the children to disclose their address to the nearest relatives, e.g., one of the latest cases— Hutchison v. Hutchison, December 13, 1890, 18 R. 237.

Argued for the respondent—The application was incompetent, and the prayer of the petition should be refused. The death of the father was not admitted, and had never been proved. This was a necessary step before the grandmother could claim the child as nearest relative. Even if the father was dead, the petitioner had no legal right to make the demand for the child— Smith v. Smith's Trustees, December 13, 1890, 18 R. 241. Besides, except perhaps in the case of a minor having a father, in which complications might arise, the law was quite settled that a minor was entitled to fix his or her own residence—Fraser's Parent and Child, p. 363. In this case the minor had clearly expressed her determination not to leave her present home, and had never wished to see her Irish relatives. This was sufficient for the determination of the case, and the prayer of the petition should be refused.

At advising—