Kerrigan v Hall
| Jurisdiction | Scotland |
| Judgment Date | 22 October 1901 |
| Date | 22 October 1901 |
| Docket Number | No. 5. |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Parent and Child—Parent's right to custody inalienable—Adoption.—
Held that it was not a relevant answer to a mother's claim for the custody of her illegitimate child, that the custodier had obtained the custody of the child from the mother under an agreement that the child should be allowed to remain permanently with the custodier as her adopted child.
Parent and Child—Custody—Arrears of Aliment—Retention.—
Held that a person with whom a child had been boarded by its mother was not entitled to retain the custody of the child in security of arrears of aliment alleged to be due by the mother.
Parent and Child—Objections to parent's custody—Custody of Children Act, 1891 (54 and 55 Vict c. 3), secs. 1 and 3.*—
In a petition by a mother for an order on a person with whom she had boarded her illegitimate child for its delivery to the petitioner, averments by the respondent that the mother had so conducted herself that the Court should refuse to enforce her right to the custody of the child which were held not relevant to be admitted to probation.
This was a petition at the instance of Bridget Kerrigan for an order on Mrs Helen Hall to deliver up to her the petitioner's illegitimate child, Mary Anne Kerrigan.
The petitioner averred that the child was born on 29th January 1898, and that on 9th February 1898 it was given to the respondent for the purpose of being boarded, the rate of aliment being 16s., subsequently reduced to 12s., a month. That the petitioner had demanded delivery of the child in November 1898 and March 1899, and again about the 3d June 1899, but that the respondent refused to deliver the child, although the petitioner on the last mentioned date paid her the whole sum which she was due to that date for aliment for the child. That she had repeatedly demanded delivery since, and especially on the 27th August 1901, when, although maintaining that she was not liable in any further aliment, she ex gratia offered £12 in full of all the respondent's claims. This offer she repeated in her petition.
The petitioner further averred that the respondent refused to deliver up the child unless she was paid £34, which she alleged was the amount of the arrears of aliment. ‘The petitioner desires to take the said child into her own custody, and to maintain and educate her in her own house. The petitioner is about to be married, and she and her intended husband are to take up house in Penicuik at Martinmas 1901, and both wish the child to be brought up in family with them.’
Answers were lodged for Mrs Hall.
The respondent averred;—‘3. On or about 9th February 1898 the
petitioner called on the respondent in Johnstone, and asked her if she would like to adopt a child of which she (the petitioner) was the mother. The petitioner offered the respondent, if she would adopt the child, to pay aliment at the rate of 16s. a month for the said child until it should reach the age of five years. The respondent agreed to receive the said child on the footing that it should be given to her permanently, and that the aliment aforesaid should be paid to her regularly. To this the petitioner agreed, and the child was, in terms of the said agreement, handed over to the respondent on or about 9th February 1898. On the day the petitioner handed over the child she paid the respondent 16s. in pursuance of the arrangement above set forth.’
‘8. … At no time did the petitioner intimate to the respondent that the said agreement was at an end, or that she would not pay further aliment for the child.
‘9. In virtue of the agreement aforesaid, which was in terms permanent, the respondent is entitled to the custody of the child. The respondent would not have received the child on any other footing than that it was to remain permanently with her as her adopted child. To that condition the petitioner expressly agreed.
‘10. The interests of the child would be best conserved by permitting it to remain with the respondent. The child is greatly attached to her, and the respondent has conceived a deep affection for her. The respondent has treated her with the greatest care and kindness, and the child is perfectly happy and contented in her custody. The respondent believes that the child's health—which is delicate—and her future prospects would be deleteriously affected were she to be taken from the respondent and handed over to the petitioner. The latter has no means to support the child, while her daily avocation would prevent her, even if she were so disposed, from giving it the care and attention which it requires, and which it at present receives.
‘11. Further, the respondent believes and avers that the petitioner has no real interest in or affection for her child. The petitioner has only seen the child on four occasions during the time the respondent has had her custody, and even when the child was believed to be dying and she was apprised of that fact, neglected to visit her or even inquire about her. She has taken no interest in the health or upbringing or even survivance of her child.
‘12. The respondent further believes and avers that the child's moral well-being would be endangered were she to be committed to the petitioner's care. The respondent believes that the petitioner has been leading a loose...
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