Scottish Court of Session Decisions

Mrs Charlotte M'Cormick or Brown, widow, Glenluce, raised an action in the Sheriff-Court at Wigtown against Bernard Halbert, miller, Wigtown, for aliment at the rate of £6 per annum for her illegitimate male child, until the child attained the age of fourteen years, viz., until 11th March 1902.

After a proof the Sheriff-Substitute ( Watson) on 11th February 1896 pronounced the following interlocutor:—“Finds in fact—(1) That the defender admits that he is the father of the pursuer's male child, which was born on 7th March 1888; (2) That the defender has paid aliment for the said child down to 7th March 1895, when the child reached the age of seven years, but that he now refuses to pay further aliment, offering instead to take the child into his own custody and keeping;

Page: 566↓

(3) That the pursuer is a Protestant, and is anxious to bring up the child in the Protestant faith, whereas the defender is a Roman Catholic; (4) That apart from the question of religion, for reasons which are mentioned in the subjoined note, it would be detrimental to the child's welfare that he should be transferred to the guardianship of the defender: Finds in law that the pursuer is entitled to retain the custody of the child, and that in the circumstances of this case the defender is not freed from liability to contribute to the aliment of the child by the offer which he has made to take him into his own custody: Therefore repels the defences, decerns and ordains the defender to make payment to the pursuer of the sum of £6 yearly as aliment for the said child, until the said child attain the age of ten years complete, viz., on 7th March 1898.

Note.—“The child having reached the age of seven years, the defender refuses to pay further aliment, and offers to keep the child himself. The pursuer is not in any case bound to part with her child, but if she keeps him she cannot claim aliment any longer from the defender unless she has proved that the child's welfare would be injuriously affected by his being transferred to the defender's custody. A proof has been led in regard to the circumstances of the parties as affecting the question of the child's welfare. The result, in the opinion of the Sheriff-Substitute, is to show that it would be detrimental to the child's welfare that he should now be removed from his mother, and live henceforth with the defender. In the first place, the pursuer is a Protestant, and has brought up her child in the Protestant faith, whereas the defender is a Roman Catholic. In the case of an illegitimate child, it is the mother's right by the law of Scotland to direct the religious upbringing of her child; and this right has always been carefully guarded by the courts. See Brand v. Shaws, 16 R. 315. The Sheriff-Substitute refers to the note appended to his previous interlocutor in this case of date 15th May 1894, where a judgment of Lord Craighill is cited ( M'Carroll v. Kerr, 15 S.L.R. 106) to the effect that such a difference in religious creed as here exists, is sufficient to entitle the mother to retain her child without losing her claim against the putative father for aliment. Following this judgment the Sheriff-Substitute is of opinion that the difference in religious faith is of itself a good ground for deciding against the defender. That the difference exists appears clearly enough from the record itself; and the Sheriff-Substitute does not think it worth while to examine the evidence on this matter.…

“Apart from the question of religious creed, other considerations combine to show that it would be injurious to the child's welfare to be transferred to the custody of the defender. The child is attached to his mother, and extremely averse to the proposal that he should live with the defender. He is of nervous temperament, and the change would probably involve some risk to his health. The pursuer is generally reputed to be leading a respectable life, though of course her moral character has been destroyed by the defender, to whom she has borne two children. She had four children to her deceased husband, all of whom are living; and at one time her circumstances were straitened enough. Since 1892, however, she has received no parochial relief; her family have been well cared for, and the older children are now able to contribute aid towards the household expenses. The evidence supplies no foundation for the apprehension by which the defender professes to have been actuated, and which he says is his ‘only objection to the pursuer having the custody of her child,' viz., that ‘she hungered her own children.’ The defender's own establishment, on the other hand, would be an eminently unsuitable and unwholesome home for a boy of seven years’ to be reared in. The defender is a bachelor, his house is at present kept by a young niece who is out all day working, and there is another female servant. For some years the defender has had a constant succession of new housekeepers and servants. The witness Agnes Milligan, who served in the house for some months in 1893 and 1894, deponed that immoral relations had subsisted between her and the defender during that period, and that she had sued him for aliment in respect of two children. Since the evidence was taken in this case, proof has been led in Milligan's actions, and the Sheriff-Substitute has found that while in the case of the elder of the two children, there was no evidence to corroborate her charge against the defender, in the case of the younger child, which was born in July 1895, the defender's paternity was established by evidence of immorality within the house.

On these combined grounds the Sheriff-Substitute is of opinion that the defender's offer does not exonerate him from liability to pay aliment, and that the pursuer is entitled to decree.”

The defender appealed to the Sheriff, and on the 14th March 1896 the Sheriff ( Vary Campbell) adhered.

Note.—“The defender desires to discharge a pecuniary claim for the aliment of this child in the manner least burdensome to himself. He has no right to the custody of the child, but he has the privilege of meeting this claim for further payments by offering to take the child into his own house and under his own charge. The benefit of the child must be the chief consideration. Here the child is being brought up as a Protestant by the mother, who has the legal right to the custody and to determine the religion of the child—a right not always to be affected by agreement— Macpherson, 14 R. 780; Brand, 16 R. 315. The health of the child is good, though it is of a nervous temperament, and the mother evidently attends well to its comfort and has secured its affection. The defender accompanies his proposal to take the child in future into his own hands, with the announced condition that he will have the child brought up

Page: 567↓

as a Roman Catholic—that is, that he will change its religion. I do not think that he is entitled to discharge his obligations to contribute to this child's aliment under any such condition, contrary to the lawful wish and determination of the mother as to the boy's religion and training. Moreover, the defender, from the evidence, is not quite the man to be entrusted with the guidance and training of this boy. I adopt and follow the opinion of Lord Craighill in the case of M'Carroll, 15 S.L.R. 106.’

Against this judgment the defender appealed, and argued—In the case of a male bastard the mother was entitled to the custody, and aliment from the father till it was seven years of age. Thereafter the father, if he was to continue to support the child, was entitled to make his own arrangements for it. If the father made a bona fide offer to receive the child into his own house, and the mother refused this offer, she was not entitled to aliment—Bell's Prin., sec. 2062; Corrie v. Adair, February 24, 1860, 22 D. 897. The Sheriffs had approached the question from a wrong point of view. They seemed to think that the defender had attempted to show that the pursuer was not a proper person to have the custody. He did not take up this position. His argument was that if this child of over seven years of age would be as well taken care of by the father as by the mother, the father's offer to take the child into his own custody must be accepted or his liability for aliment cease.

Counsel for pursuer were not called on.