Scottish Court of Session Decisions

On 7th June 1907 Robert Brydon, 4 South Oxford Street, Edinburgh, presented a petition in which he prayed the Court to find that he was entitled to the custody of his child Robert Brydon, and to make an order ordaining his wife Mrs Elizabeth Brydon to deliver the child to him.

The petitioner averred that the marriage took place on 1st August 1898, that the said Robert Brydon was the only child of the marriage, and that he was born on 6th September 1902. He further averred that the marriage had not been a happy one owing to his wife's neglect of her home duties and her frequent absences, and that on one occasion she had consulted an agent as to a separation, but a reconciliation had been effected. “On or about 2nd October 1906 the petitioner, on returning from business, found that his wife had left home taking the child with her and carrying off numerous household furnishings, but without leaving any intimation as to where she had gone. On 6th October 1906 the petitioner was served with a summons in the Small Debt Court at Edinburgh at the instance of ‘Mrs Elizabeth Little or Brydon, presently residing at 12 Guildhall Street, Dunfermline,’ for twelve weeks' aliment at the rate of 15s. per week, pending judgment in an action of separation and aliment about to be raised in the Court of Session,’ as the summons bears. On 17th October 1906 the Sheriff-Substitute (Guy) allowed Mrs Brydon 10s. per week for a period of six weeks, and the amount was duly paid. At the same time the petitioner's agent informed the respondent's agent that they would accept service of the summons in the threatened action of separation and aliment, and requested that the boy should be handed over to his father's custody…. Though several months have since elapsed the threatened action of separation and aliment has not yet been brought into Court.”

The respondent averred—“Explained that immediately after marriage the petitioner began to be very intemperate in his habits, and to spend his evenings away from home, returning in a state of intoxication. While in that condition he lost all power of self-control, used abusive language to the respondent, and threatened her with personal violence. His conduct grew worse in the early part of 1904, when time and again when he came home at night the respondent had to take refuge with her child in a neighbour's house. On one occasion he was only prevented from striking the respondent by a friend who accompanied him holding him back. … On 1st October 1906 he came home about midnight much the worse of drink, and continued for nearly two hours to use abusive and threatening language to the respondent. He threatened to strike her more than once, and told her to leave the house and take her child and belongings with her. The respondent was afraid of the safety of herself and her child and accordingly left the house next morning. It would be detrimental to the physical and moral welfare of the child to return home to his father. He is a delicate boy, subject to recurrent attacks of croup, and requires constant attention and fresh air. These necessities the petitioner, apart from his habits, cannot give the child, as he is at his work all day. In any case his habits of intemperance have been so confirmed, and his conduct when intoxicated so outrageous, that he is utterly unfit to be the guardian of a child of such tender years, and it would endanger the moral upbringing, the health, and even the safety of the boy, to entrust him to the petitioner's care.” She further averred that an action of separation and aliment was in process of being raised.

Counsel for the respondent stated that it was on his advice that the action of separation and aliment had been raised, that the summons had been served, and that the action would be proceeded with.

Argued for the petitioner—In cases of custody the presumption was in favour of the father as the legal guardian of his children. Here the respondent was in desertion and the petitioner was entitled to the custody of the child, now in its fifth year— Rintoul v. Rintoul, October 22, 1898, 1 F. 22, 36 S.L.R. 21; Reid v. Reid, January 9, 1901, 3 F. 330, 38 S.L.R. 237; M'Kellar v. M'Kellar, May 19, 1898, 25 R. 883, 35 S.L.R. 483. The Guardianship of Infants Act 1886, section 5, had not altered the common law, and the husband still remained entitled to the custody unless good cause otherwise was shown— Sleigh v. Sleigh, January 20, 1893, 30 S.L.R. 272, per Lord M'Laren. The respondent's averments must be read in the light of the fact that she had threatened in October 1906 to raise an action of separation and had not brought the action until July 1907.

Page: 861↓

Argued for the respondent—The main question was what would be best for the child—Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), section 5. There were here relevant averments of drunkenness and cruelty, and the child could not be handed over to the petitioner without inquiry—either in the present process or in the action of separation. Pending inquiry the child should remain with the respondent. It was most undesirable that he should be transferred back and forward from one spouse to the other. Further, the mother was the natural custodier of young children— Reid v. Reid, cit. sup. The petitioner had himself delayed to bring this petition and was not entitled to found on the respondent's delay in bringing her action of separation.