Scottish Court of Session Decisions

James Morrison, brushmaker, Dundee, aged thirty-six, was the eldest brother of twin children, a boy and a girl, born on 7th March 1882. On the death of their father, predeceased by their mother, these children resided with their brother for some months, but he having a family of his own and being unable longer to support them, applied for their admission into Mr William Quarrier's Homes at Bridge of Weir. Upon 24th January 1894 he himself took them to Mr Quarrier and then signed the following form of agreement:—“I, James Morrison, make application to have my brother and sister Alexander and Margaret (twins), aged eleven and eleven years, received into the above-named Homes, with the view of being emigrated to Canada, under the care of William Quarrier or his agents, or to be kept at home, or otherwise disposed of as Mr Quarrier thinks best, in proof whereof I affix my signature.— James Morrison. J. Jamieson, witness.” The children, however, were not taken to the Homes until 26th February, and on 18th May 1894 Morrison presented a petition craving the Court to interdict Mr Quarrier from removing the children outwith the jurisdiction of the Court, and on resuming consideration of the petition with or without answers, to ordain Mr Quarrier to deliver up the children to him.

In his petition Morrison averred that he had given up the children under fear of a prosecution threatened by the school board officer at Dundee. He also averred—“The said children are not being retained in the Roman Catholic faith, in which they were baptised and brought up, and the petitioner is anxious, for that and other reasons, to have them removed from the custody of Mr William Quarrier and restored to himself. The petitioner has made arrangements to have them educated and maintained in a Roman Catholic institution, and he is willing, should your Lordships require it, to retain them under his own care or under the care of a relative, who has signified her desire to have them. The said children desire to be restored to the petitioner's care, but the said William Quarrier refuses to hand said children over to the petitioner, although repeatedly requested to do so.”

The Court granted interdict as craved, and appointed answers to be lodged. In these answers the respondent, inter alia, averred—“On 26th February the petitioner presented himself with the two children. He explained that he and all the other relatives of the children were now quite satisfied to leave them in the respondent's Homes, and they were left accordingly. No new document was then signed by the petitioner, the respondent having still preserved the printed form which the petitioner signed on 24th January. On or about 9th April the petitioner saw the children at Bridge of Weir, and took no objection to their treatment, or on any other score. When admitted, the children had evidently been much neglected. They had all the appearance of being under-fed, and although twelve years of age, they were only in the second standard. In the last week of April the respondent had a call from Mr Lillie, writer, Glasgow, who had been instructed by the Roman Catholic Society of St Vincent de Paul to endeavour to recover the children from the respondent. The respondent then for the first time heard it alleged that the children were Roman Catholics. He explained to Mr Lillie that he thought it inexpedient in the children's interest to return them to the petitioner, but offered to deliver them to anyone who would make suitable arrangements for their maintenance and education. Subsequently the respondent was informed by letter from Mr Lillie's firm, dated 3rd May 1894, that a Mr and Mrs James Brown, 82 Main Street, Bridgeton, Glasgow, were willing to adopt both children. The respondent at once made inquiries, and found that Mrs Brown was an invalid, that she wished the girl Margaret Morrison to act as her attendant and servant, that she did not wish the boy Alexander Morrison, but was willing to take him if she could not otherwise get the girl. The respondent concluded that it was not Mrs Brown's intention to educate either of the children, and that it would not be for the interests of the children to allow Mr and Mrs Brown to adopt them. He reported this to Messrs Forbes, Robertson, & Lillie, writers, by letter dated 15th May, and he has heard nothing more on the subject until the service of the present petition. The respondent was never informed that any arrangements had been made for the maintenance of the children in a Roman Catholic institution or anywhere else. The respondent believes and avers that the petitioner is

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unable to support the children in question, that while they were in his custody he did not in fact attend to their support and education, and that it is not for the interests of the children that they should be returned to him. The girl is no longer in pupillarity, and has already, in connection with Mr and Mrs Brown's proposal, stated her preference for remaining in the Homes. The respondent does not at present, and never did, contemplate emigrating the children to Canada. The respondent therefore submits that unless the interests of the children require it, there is no occasion for interfering with the arrangements made on their behalf. Further, he submits that the present petitioner, one of the brothers of the children in question, has no title to present the present application, and in any case he is, in the circumstances narrated, now barred from so doing. Lastly, the respondent believes and avers that the true dominus litis in this application is not the petitioner, but the Society of St Vincent de Paul, which should be sisted as a party to this application accordingly.”

Argued for the petitioner—Mr Quarrier had no right to retain the custody of the children against the wishes of the petitioner, who was their natural guardian. The mere fact that they were at present with him gave Mr Quarrier no right whatever to their custody. They should be brought up in the form of religion in which they had been baptised, and which was that of their father— Brand v. Shaws, December 22, 1888, 16 R. 315.

Argued for the respondent—The petitioner as their brother had no right to the custody of these children, or to prescribe the form of religion in which they were to be brought up. The sole consideration for the Court was the wellbeing of the children— Sutherland v. Taylor, December 22, 1887, 15 R. 224; Markey v. Colston, July 14, 1888, 15 R. 921; Smith v. Smith's Trustees, December 13, 1890, 18 R. 241; Flannigan, June 21, 1892, 19 R. 909; Mackenzie v. Keillor, July 6, 1892, 19 R. 963. There was no suggestion that the children were not being well cared for in Mr Quarrier's homes. The question of religion alone—and that was the only question here—had nothing to do with the matter. That was recognised in the English Courts in the case of M'Grath, L.R. 1892, 2 Ch. 496, and L.R. 1893, 1 Ch. 143, where it was said that the Court judicially administering the law could not hold one religion better than another, and that only a father had any right to dictate the form of religion in which his children were to be brought up. The girl being over ten years of age was entitled to choose her own place of residence. If the Court had any difficulty in refusing the petition at this stage a curator ad litem might be appointed to inquire fully into all the surrounding circumstances, ascertain additional facts, and report. This was done in the case of Flannigan, supra.

At advising—