Duguid v McBrinn
| Jurisdiction | Scotland |
| Judgment Date | 20 November 1953 |
| Date | 20 November 1953 |
| Docket Number | No. 18. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Parent and ChildCustodyIllegitimate childMother's right to custodyWelfare of childIllegitimate Children (Scotland) Act, 1930 (20 and 21 Geo. V, cap. 33), sec. 2 (1).
The Illegitimate Children (Scotland) Act, 1930, enacts:Sec. 2. "(1) The Court may, upon application by the mother or by the father of any illegitimate child make such order as it may think fit regarding the custody of such child and the right of access thereto of either parent, having regard to the welfare of the child and to the conduct of the parents and to the wishes as well of the mother as of the father and may on the application of either parent recall or vary such order."
In an action at the instance of the mother of an illegitimate child for his custody, in which it was contended on her behalf that the right of the mother to the custody of an illegitimate child was in ordinary circumstances absolute,
Held that, while the mother had had the primary right to custody at common law, the effect of sec. 2 (1) of the 1930 Act was to make the welfare of the child the paramount consideration and that only where that and the other considerations mentioned in sec. 2 (1) were evenly balanced as between the parents should the mother's common law right be taken into account.
Campbell v. Campbell, 1920 S. C. 31, commented on.
ProcessAction for custodyIllegitimate childRemit by Sheriff-substitute to Court of SessionCompetencyCustody of Children Act, 1891 (54 and 55 Vict. cap. 3), sec. 1.
Circumstances in which the Court decided an action for the custody of an illegitimate child which had been brought in the Sheriff Court and remitted by the Sheriff-substitute to the Court of Session as raising a question under the Custody of Children Act, 1891.
Mrs Roberta Murray Or Duguid brought an action against Herbert M'Brinn in the Sheriff Court at Glasgow craving delivery of Herbert Samuel M'Brinn, the illegitimate pupil child of the pursuer and defender, who was born on 12th March 1947 and at the date of the action was in the custody of the defender.
In the defences certain averments were made regarding the pursuer's treatment of and attitude to the child, who, it was averred, would suffer in health if he was returned to the custody of the pursuer.
The defender pleaded, inter alia:"(4) In the circumstances condescended on the pursuer has so conducted herself that any right of custody to which she might have been entitled should not be enforced, and decree of absolvitor should be granted with expenses."
On 6th March 1953 the Sheriff-substitute (Dobie) remitted the case to the Court of Session, in respect that the record raised questions involving the application of the Custody of Children Act, 1891.1
The case was heard before the Second Division (without Lord Patrick) on 11th June 1953, when the Court ex proprio motu raised the question whether the remit was competent under the 1891 Act, the child being illegitimate.
Counsel for the pursuer stated that he acquiesced in the remit and desired to have the case decided in the Court of Session. He citedKakoullis v. Convery2 as a precedent for the Court's hearing and deciding a remitted case dealing with the custody of an illegitimate child, and also referred to Murray v. Forsyth3; Kitson v. KitsonSC4; the Custody of Children Act, 1891,5section 1; the Illegitimate Children (Scotland) Act, 1930,6section 2; and the Maintenance Orders Act, 1950,7 section 27 (3). The Lord Justice-Clerk referred to Dobie on Sheriff Court Practice.
Counsel for the defender submitted that the remit was not competent, but stated that in view of the terms of the defender's fourth plea in law he considered that such an argument was not properly open to him.
The Lord Justice-Clerk intimated that, without delivering opinions, the Court would remit to the Sheriff-substitute to ascertain the facts and would then hear and dispose of the case.
The Sheriff-substitute having heard evidence and reported, the case was further heard before the Second Division (without Lord Mackintosh) on 4th November 1953.
At advising on 20th November 1953,
LORD PATRICK.This case raises an interesting point of law. At one time it could be affirmed that "the right of a mother to the custody of her illegitimate infant is no doubt absolute, and in all ordinary circumstances it must be enforced. The putative father has no right over it at all." The quotation is from the opinion of Lord President Inglis in Macpherson v. LeishmanUNK.18 The mother could not deprive herself of that right even by agreement with the putative father; at any rate not unless the agreement was expressed to be a permanent arrangement, and perhaps not even then. In Brand v. ShawsUNK19 the Lord President put the matter thus (at p. 453): "An application by the mother of an illegitimate child for delivery of it to her custody isprima facie a just and legal demand, as she has the only legal title to its custody." Nevertheless, even in those days, the welfare of the child was the paramount consideration, and the Court would refuse to give effect to the legal right of the mother if the interests of the child so demandedSutherland v. TaylorUNKSC.15 In such a case the Court might award the custody of the child to the putative fatherLord Shand inMacpherson v. LeishmanUNK.18 I doubt whether the Custody of Children Act, 1891,20 enlarged in the above respects the powers which the Court
already possessed at common law, and was in use to exercise. The question now arises: "What is the effect of section 2 of the Illegitimate Children (Scotland) Act, 193021?" The section is in these terms: [His Lordship quoted subsection (1), and continued]Notwithstanding that legislation, it is contended in this case that the right of a mother to the custody of her illegitimate infant is in all ordinary circumstances absolute. One thing is certain. It is no longer possible to say, as was said in Macpherson v. LeishmanUNKSC,22 that the putative father of an illegitimate child has no right to the custody of the child at allIn the construction of this section I think it most helpful to consider the parallel common law and legislation dealing with the custody of legitimate children. The right of a father at common law to the custody of his legitimate pupil children was often described as absolute. It would have been more accurate to describe it as absolute in normal circumstances, for it might yield to considerations affecting the welfare of the...
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...custody and empowered the Court to give custody to him if the welfare of the child so required. Dicta of Lord Mackay in Duguid v. M'Brinn,1954 S. C. 105, Minor and PupilAdoptionConsent of parents to adoption orderIllegitimate childWhether father's consent requiredAdoption Act, 1950 (14 Geo.......
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...C. L. Y. 1541. 9 [1952] 2 Q. B. 561, Devlin, J., at p. 572. 10 [1955] 2 Q. B. 286. 11 15 and 16 Geo. V, cap. 45. 12 Duguid v. M'Brinn, 1954 S. C. 105. 1 7 Eliz. II, cap. 2 In re L. (an infant), (1962) 106 S. J. 611, 1962 C. L. Y. 1541. 1 Watson v. NikolaisenELR, [1955] 2 Q. B. 286; In re Ad......