Scottish Court of Session Decisions

This was a petition presented by James M'Callum, quarryman, Pretoria, South Africa, on 21st December 1892, in which the petitioner craved the Court to find him entitled to the custody of the four children of the marriage between him and Alice Carlyle or M'Callum, his wife, the eldest of whom was nine, and the youngest three years of age, and to ordain his wife to deliver the said children to his sister, who resided at North Queensferry.

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The petition contained statements to the following effect—The petitioner and respondent were married in 1884. In April 1890 the petitioner, in order to improve his circumstances, accepted work at Pretoria, South Africa, leaving his wife and children in the house which they had occupied with him in Kirkcaldy. He had since then lived in Africa, but intended to return and live in Scotland. Since his absence he had remitted funds sufficient to maintain his wife and children creditably. The petitioner had learned that his wife had become much addicted to drink, and that she seriously neglected the children, leaving them without proper food and clothing. He had further learned within the last few weeks circumstances as to his wife's conduct which had led to his raising an action of divorce for adultery against her on December 20, 1892. In those circumstances it was indispensable for the interests of the children that he should exercise his right to regulate the place of their upbringing and education by removing them from his wife's custody. He therefore presented this petition for custody of the children pending the result of the action of divorce. He had given authority to his sister to receive and take charge of the children.

Mrs M'Callum lodged answers, in which she made the following statements—“Considering the petitioner's income and the respondent's needs, his allowance to her has been grossly inadequate, and during his absence he has treated her and his family with great neglect. Denied that the respondent is addicted to drink, or that she neglects her children. Averred that her children are extremely healthy, and that they are well cared for by the respondent. Admitted that an action of divorce has been raised against the respondent. Defences are not yet due in that action. That action includes a conclusion for the custody of the children in question. The respondent submits that the present petition is incompetent and unnecessary; and further, that in the circumstances it would prejudice the respondent's interests in the divorce proceedings.”

At the discussion the respondent also produced and founded on letters which she alleged had been written to her by the petitioner from Africa, and which she alleged to be most indecent in their character. Counsel for the petitioner did not admit that said letters had been written by the petitioner.

It further appeared that in her defence to the action of divorce the respondent admitted the adultery with which she was charged, but pleaded (1) no jurisdiction; (2) lenocinium; (3) the pursuer is barred by his conduct from obtaining decree of divorce.

The 9th section of the Conjugal Rights Amendment Act 1861 provides that “in any action for separation a mensa et thoro, or for divorce, the Court may from time to time make such interim orders, and may in the final decree make such provision as to it shall seem just and proper with respect to the custody, maintenance, and education of any pupil children of the marriage to which such action relates.”

Argued for the petitioner—The provision in the Conjugal Rights Act did not interfere in any way with the nobile officium of the Inner House, and the present application was competent. Further a sufficient case had been made out for the granting of the petition, for the respondent admitted that she had committed adultery, and the answers contained nothing to show that the petitioner was unfit to have the custody of the children. The fact that the petitioner was at present abroad did not deprive him of his right to regulate the place of their education— Pagan v. Pagan, July 3, 1883, 10 R. 1072. The letters founded on by respondent were not admitted to have been written by the petitioner, and could not be taken into consideration.

Argued for the respondent—The application was unnecessary, and should be refused. Much the most expedient course was to leave the Lord Ordinary, before whom the action of divorce was in dependence, to decide the question of the interim custody of the children. Further, the petitioner had failed to state any sufficient grounds for the granting of this application. The fact that the respondent had committed adultery was not of itself sufficient ground for depriving her of the custody of the children, and the allegation now made by her as to the obscene character of the petitioner's letters, if true, placed him in as bad a position in regard to the question of custody as the respondent. Besides the conduct of the parents, the Court must also have regard for the welfare of the children, and the wishes of the mother as well as of the father—Guardianship of Infants Act 1886 (49 and 50 Vict. c. 27), section 5.

At advising—