Walter v Culbertson
| Jurisdiction | Scotland |
| Judgment Date | 09 March 1921 |
| Date | 09 March 1921 |
| Docket Number | No. 54. |
| Court | Court of Session |
Lord President (Clyde), Lord Mackenzie, Lord Skerrington, Lord Cullen.
Parent and Child—Custody—Illegitimate child—Right of mother to custody—Onus on mother to show ability to give personal attention to child.
A petition was presented by a mother for the custody of her illegitimate child, a boy aged ten years, who had been entrusted shortly after birth to the care of the father's mother, in whose charge he still remained. In 1914, when the child was four years of age, the petitioner went to Australia where she was employed as a domestic servant, and she had regularly contributed substantial sums of money, and also clothing, towards the child's maintenance. When in Australia she married a soldier who was killed in the war, and in respect of his death she had a pension of £1 a week. In 1920 she returned to Scotland to fetch the child to Australia, where she intended to settle and to maintain and educate him. She proposed to obtain employment as a daily servant, or to start a lodging-house, or to take service on a station. At the date of the petition she was employed at a restaurant in Edinburgh. No fault was found with the way in which the child was being cared for by his grandmother.
Answers were lodged by the grandmother, who averred that it was not in the interest of the child that the petitioner should be given the custody, as she was not in a position to give him the necessary personal care and attention.
Held that, as the petitioner had failed to satisfy the Court that she was in a position to give the child the advantages of personal maternal care, it was not in the interests of the child that the mother should receive the custody, and, accordingly, that the petition could not be granted hoc statu; but petition continued to enable the petitioner to furnish more definite information as to her plans for the future, and evidence as to her ability to carry them out. Diss. Lord Skerrington, who was of opinion that the petition should be granted de plano, nothing having been established to displace the mother's legal right to the custody of her child.
The petitioner having subsequently produced a deposit-receipt in her favour for £500, and having stated that she intended to start business in Australia as a boarding-house keeper, the Court, being satisfied on that evidence that the petitioner was in a position to make suitable arrangements for the child, granted the prayer of the petition, Lord Skerrington concurring in the granting of the prayer, but dissenting from the grounds of judgment of the majority.
On 9th July 1920 Mrs Elizabeth Gow or Walter, residing at 127 Lothian Road, Edinburgh, widow of James Walter, farmer, Callawadda, Victoria, Australia, presented a petition for the custody of her illegitimate child, Rudolf George Collier Gow.
The petition set forth;—
‘That the petitioner is thirty-four years of age, and on or about 21st October 1910 gave birth to an illegitimate male child named Rudolf George Collier Gow at 31 Primrose Street, Leith. Prior to the birth of the said child, the petitioner was in a situation as chambermaid in the Bellevue Hotel, Dunbar. After the birth of the child he remained in the custody of the petitioner for several months. Thereafter, as it was necessary for the petitioner to obtain another situation, she arranged with the respondent, Mrs Eliza Collier or Culbertson, wife of George Culbertson, now residing at 26 Bothwell Street, Leith, to take charge of and board the child when required.
‘During the period from 1910 to 1914 the child resided from time to time with the petitioner when it was possible for her to have him in her custody, and at other times he resided with the respondent under the arrangement above referred to. The petitioner paid to the respondent the whole sums agreed upon for the aliment of the child during the said period.
‘Shortly after the outbreak of war in 1914, the petitioner found that, owing to the closing down of hotels, she was unable to obtain employment, and she left this country for Australia in the end of 1914. She was in various situations there until 5th August 1916, when she married James Walter, farmer, Callawadda, via Stawell, Victoria, Australia. The said James Walter went on military service, and was killed in action in France on 25th September 1917. After his death the petitioner obtained a situation as housemaid-waitress in the Dookie Agricultural College, Victoria, where she remained for two and a half years. In February 1920 she left her situation and returned to this country for the purpose of obtaining the custody of her said child.
‘When she left for Australia in 1914, the petitioner arranged that the said child should be boarded with the respondent. During her absence she maintained regular communication with the respondent, and remitted to her four or five times a year sums of £2 or £3 for the maintenance of the child. She also sent from time to time parcels of clothing for his use.
‘The petitioner arrived in Scotland on 28th April 1920, and visited the respondent and the said child at 26 Bothwell Street. The petitioner had informed the respondent that she desired to resume the custody of the child and to take him with her to Australia. Shortly after the petitioner returned, the respondent withdrew the said child from school and sent him out of Edinburgh, and declined to inform the petitioner where he had been taken. The petitioner discovered that the said child had been sent to Hamilton, and she proceeded there and traced him to the house of a relative of the respondent, who refused to allow the petitioner to have the child.
‘The petitioner, through her law-agent, demanded delivery of the said child from the respondent on or about 10th June 1920, but no reply has been received to this communication. The petitioner has paid all sums due to the respondent in respect of the maintenance of the said child.
‘The petitioner desires to take the said child into her own custody, and to maintain and educate him in Australia, and she has come from Australia for that express purpose. It is the intention of the petitioner to return to Melbourne, take a house there and maintain and educate the said child there. The petitioner enjoys a pension of £1 a week as the widow of the said deceased James Walter, and will be able to obtain ample employment as a daily servant or otherwise, to enable her to maintain herself and the said child.’
The petitioner accordingly craved the Court ‘to find that the petitioner is entitled to the custody of the said child, and to make an order decerning and ordaining the said Mrs Eliza Collier or Culbertson to deliver up to the petitioner, or to those having her authority, the said child to remain in her custody.’
Mrs Culbertson and her husband, George Culbertson, lodged answers, in which, after explaining that Robert Collier, the father of the child, was the son of Mrs Culbertson, they stated that, with the exception of two periods of about three weeks each in the year 1912, during which the petitioner took the child away, the child had lived continuously with the respondents.
The respondents then averred:—‘2. … The said child has been brought up, fed, clothed, educated, and cared for by the respondents at the request and with the full knowledge and consent of the petitioner, who has shown no desire for or affection towards the child until the present proceedings were raised. No sum was agreed to be paid by the petitioner to the respondents for their care of the said child, and the petitioner's statements in the second paragraph of the petition are denied, subject to the explanation hereinafter written. 3. Admitted that the petitioner went to Australia. Believed to be true that she was in various situations there and that she married the said James Walter. It is admitted also that the petitioner returned to this country towards the end of April 1920. No special arrangement was made by the petitioner for the custody and maintenance of the said child during her absence, but it remained under the charge and care of the respondents as formerly. Communications were received from the petitioner at very irregular intervals during her absence, and the total of the sums remitted by her for the maintenance of her said child while she was in Australia was £7,10s. Since her return to this country the petitioner has paid to the respondents a further sum of £2, 10s. The averments of the petitioner as to the remittances made by her for the maintenance of the said child are denied. 4. Admitted that the respondents have refused to hand over the custody of the said child to the petitioner. Having regard to the interest and welfare of the child, the custody should remain with the respondents. A strong mutual attachment exists between the respondents and the child, and the child himself desires to remain with the respondents. The child is not in good health. About three years ago, on the instructions of the medical officer of the school attended by the child, he was sent to the country for a period on account of heart and lung trouble. He is still in delicate health and requires great care and attention. To remove him from the respondents' care, and especially to place him in the charge of the petitioner whose intention is to take him to Australia, would be most prejudicial to the child's health. A medical certificate by Dr J. Cormack Smith, who has been in attendance on the child for the past nine years, is produced herewith. The petitioner has no house of her own to which to take the child, and she states that it is her intention to obtain employment in Australia as a daily servant or otherwise. In these circumstances, she will not be in a position to devote to the child the care and attention which it requires. The respondents are in a position to provide suitably for the child's upbringing. The said George Culbertson is in regular employment and earns good wages...
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