Scottish Court of Session Decisions

John M'Lay, weaver at Kirkfieldbank, in the parish of Lesmahagow and county of Lanark, presented this petition to the Court, asking for the custody of his four grandchildren in the following circumstances:—The petitioner's son, Wm. M'Lay, weaver, died in 1863, leaving a widow, Mary Cunningham or M'Lay, and four children, all of whom, the petitioner alleged, were still under puberty William M'Lay did not appoint any guardian to

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his children. He had been in bad health for some time before his death, and had been in receipt of parochial relief. After his death parochial relief was continued to his widow until her death, in June 1867. William M'Lay was a Protestant. His wife, the petitioner alleged, was also a Protestant, and had been entered as such in the poor's roll. The petitioner went on to state that Mrs M'Lay, some time before her death, was removed by certain Roman Catholic priests to the house of a Roman Catholic in Lanark, and the children were also taken from their home at Linnvale, and placed in St Mary's Roman Catholic Orphanage at Smyllum, near Lanark. This removal of the children, the petitioner stated, was unauthorised by him or by the Parochial Board of Lesmahagow. He then aplied to the board to have the children removed from the Orphanage. The inspector of poor, on the instructions of the Board, applied to the Lady Superior of the Orphanage to deliver up the children; but she refused to do so, and withdrew a claim of aliment which she had made against the board, alleging that the mother of the children had appointed guardians to them prior to her death. The petitioner then called at the Orphanage, and demanded that the children should be given up to him. His demand was refused, whereupon he wrote to the Lady Superior pressing his demand. To this letter the Lady Superior returned an answer consenting to give up the children. The petitioner called on a day fixed, but did not see the Lady Superior, but only Mr Bowie, who told him that the children would not be given up. The Lady Superior wrote to him that she had handed over the children to their guardians, Capt. Thornton, Baronald House, and Thomas Bowie, Esq., Lanark. This claim of guardianship was founded on a document in the following terms:—

“April 24, 1867.—I, Mary M'Lay (formerly Cunningham), hereby appoint Captain Thornton and Mr Thomas Bowie as the guardians of my children; and wish, as the expression of my last will, that the said children be brought up in the Roman Catholic religion.

Maey M'Lay + (her mark).

Witnesses-James M'Ginty, John Stein.”

The petitioner stated that he had applied to the gentlemen named in this document, but could neither get the children handed over to him nor any information as to where the children were. He therefore presented this petition on the ground that he, as the nearest male agnate of the children, was entitled to be served tutor-at-law to them; that their mother had no right to make any appointment of guardians; and that the guardians, being Roman Catholics, would educate the children in the Roman Catholic instead of in the Protestant religion.

Answers were given in for the guardians, in which they stated that the petitioner was unable from poverty to educate and maintain the children; that Mrs M'Lay had been a Roman Catholic, and had requested that the children should be received into the Orphanage; that before her death she had stated her wish that the children should be educated as Catholics, and that the petitioner who, she said, had treated her and her children unkindly, should have nothing to do with them. A maternal uncle, the nearest agnate, was satisfied with the present position of the children.

The Court, after hearing counsel, remitted to the Sheriff-substitute at Lanark to inquire into the facts of the case subsequent to the death of Mary M'Lay; the communications which had passed between the different parties interested; and the circumstances of the petitioner, with special regard tohis fitness to become the custodier of the children.

The Sheriff-substitute reported. The last head and the conclusion of his report were as follows:—“The petitioner is by trade a hand-loom weaver, and keeps three journeymen. His family consists of himself, his wife, and one boy of six years of age, and his average weekly earnings from all sources he states at 14s. 3d. after deductions, but out of which amount he has to provide for rent at the rate of £5 per annum, gas, &c. He is confident that if he succeeds in obtaining the custody of his said grandchildren that the said parochial board would consent to make an allowance towards the maintenance of the two youngest of the children, and that said addition to his average income would enable him comfortably to maintain himself, wife, son, and four grandchildren, and also to provide for the latter suitable education. In this strong belief his wife concurs. He purposes, in that event, to bring up the eldest boy as a weaver. The hand-loom trade, however, has for some time back been in a retrogressive state, and still continues in a very depressed condition indeed, with little if any prospect of improvement. The petitioner's character appears to be irreproachable, and he seems to be a person of considerable intelligence. The reporter would, on this part of the case, humbly observe that the circumstances and condition of the petitioner and his family are identical with those of a host of honest and industrious men, both of the present and preceding generations, who, on very limited means, have brought up and creditably maintained largefamilies, while at the same time it must be admitted that the present fluctuating condition of the hand-loom weavers is suggestive of the very gravest consideration. On the whole matter, then, remitted to him for inquiry the Sheriff-substitute has to report:—That the children in question were transferred from Kirkfieldbank to the Orphanage at Smyllum wholly without the knowledge, sanction, or concurrence of the petitioner or the parochial board, and that Mary M'Lay was at that very period in actual receipt of a regular weekly allowance from the said board on behalf of herself and her children; that the demand preferred against the parochial board for payment of said allowance from the period of the children's admission into the Orphanage was deliberately and definitively withdrawn by the respondent Farrel; that delivery of the children to the petitioner was eventually refused by the respondents Thornton and Bowie, on the ground of their alleged nomination as their guardians by Mary M'Lay; that the inquiry instituted does not establish or confirm the averment of the respondents that Mary M'Lay was, prior to or at the time of her decease, a Roman Catholic; while, on the other hand, the extract from the Registered Book of Marriages for the district of Bridgeton, in the burgh of Glasgow, shows that she and her husband were married in a Presbyterian church and by a Presbyterian minister, and that the married pair are therein described as being professed Presbyterians; that the petitioner and the children's uncle Michael Cunningham object to their being brought up as Roman Catholics—the former most distinctly from strong religious convictions; that the established respectability and integrity of the petitioner unquestionably qualify

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him for the custody of his grandchildren; and that while the reporter is fully aware that the Court, in questions regarding the custody of children, are in the use of freely exercising their nobile offidum, he feels it to be his present duty to remark that, if the religious element—which seems to be inseparable from the present question—is not to be absolutely disregarded, the fact of the union of morality with fervent religious convictions in the person of the said children's nearest agnate indicates the petitioner as possessed of superior qualifications for their custody and control, although he is not blessed with a superabundance of this world's goods.”

Balfour for petitioner.

Mackenzie for respondents.

The Court ordered that the children should be delivered by the respondents to the petitioner, holding that although the petitioner was a poor man, and might not be able without assistance, from the parish—which assistance might in the circumstances competently and reasonably be given—to fulfil his intention of maintaining and educating the children, he was entitled to have the custody of them. He had not only stated his case very fairly, but, looking to the report of the Sheriff, it was evident that he deserved great credit for the course he had taken. The respondents might be very well meaning and benevolent persons, and entitled to credit for their kind intentions, but they had no right to retain the children when the grandfather was willing and anxious to take them, and the case would have been exactly the same if the present custodiers of the children had been Protestants. The question of religion did not enter the case, which had to be decided simply on grounds of legal right and expediency.