Scottish Court of Session Decisions

Mis Agnes Jane Grant or Reid, wife of Alexander Reid, Spirit Merchant, residing at Bearsden, Dumbartonshire, presented a petition at common law and under the Guardianship of Infants Act 1886, in which she prayed the Court to find her entitled to the custody of her four children—Agnes, aged six, Sarah, aged four, Ethel, aged three, and Alexander Percy, aged six months.

In the petition Mrs Reid averred that she was married to the said alexander reid in 1893, and lived happily with him till August 1900, from which date there had been constant difficulties between them. In December 1900 she received a letter from his law-agent, in which it was stated that her husband insisted upon her leaving his house. She obeyed this order, and found a home with her father. She was allowed to take the youngest child along with her, but before she left her husband's house her other children were removed by the husband from his house, and the petitioner averred that she did not know where they were. She raised an action of adherence, and alternatively for separation and aliment, with conclusions for the custody of the children and aliment for them. she further averred that her husband had an income of £1500 a-year, and that his business was of a nature that necessitated his absence from home the whole day. Her averments concluded with the following statement:—“the petitioner is not in a position to make any averments regarding the fitness or unfitness of her husband for their custody. She believes and avers that they are not in his custody. They are very young girls, and are in need of their mother's care, and it is averred are unhappy away front her, and the petitioner is entitled in the meantime to have their custody, and their interests demand that they should be with her. The petitioner will give her husband such reasonable access to said children as the Court may think proper.”

Answers were lodged for the husband, in which he made, inter alia, the following statement—“(Ans. 3) The respondent had serious differences with the petitioner, and was much dissatisfied with her conduct both as a housekeeper and towards their three elder children before as well as after August 1900. The respondent disapproved strongly of corporal punishment, and has had cause frequently to remonstrate with the petitioner for thrashing the three elder children. On several occasions he has had to interfere and take them away from her. She has beaten the eldest daughter, who has always been delicate, with special frequency and severity, and without cause. She has disobeyed the respondent's expressed wishes in this respect, and resented his remonstrances and interference on the child's behalf.” Section 5 of the Guardianship of Infants Act 1886 enacts—“The Court may, on 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 the conduct of the parents and to the wishes as well of the mother as of the father.”

Argued for the petitioner—This was a case for the interference of the Court without delay, and a sufficient prima facie case had been made for an order for custody ad interim without inquiry. The real question in such cases was the interest of the children, and the natural home of three girls under seven was with their mother. The petitioner was not bound to wait until her action for adherence was ready for proof— Stevenson v. Stevenson, Jan. 30, 1894, 21 R. 430. The case of M'Callum v. M'Callum, Jan. 24, 1893, 20 R. 293, was not in point, because the decision there was that the circumstances required inquiry, and that it would be improper to have two inquiries. Here the conduct of the husband was obviously unreasonable, and the case might be decided on the petitioner's

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averments and the husband's answers thereto.

Argued for the respondent—The case was before the Lord Ordinary in the action for adherence, and no order should be pronounced here. An application of this kind to the Inner House when an action was pending in the Outer House, though competent, would only be granted in exceptional cases— M'Callum v. M'Callum, cit. sup. There was nothing exceptional in the circumstances here. No allegation was made against the husband's character, and he had done nothing that he was not entitled to do. He was entitled to turn his wife out of his house if he chose—Fraser on Husband and Wife, ii., 868–873.