Scottish Court of Session Decisions

This petition was presented by Mrs Minna Amy Edwards Moss or Mackenzie, wife of Osgood Hanbury Mackenzie of Inverewe and Kernseray, who was living separate from her husband, for access to her daughter eight years old, who was living with the father.

In January 1881 a previous application had been presented by Mrs Mackenzie for the same purpose, to which answers were lodged for the husband on 15th February 1881. In these answers he judicially offered to receive the petitioner as his wife at Tournaig House, and to resume conjugal relations without reference to the past, the petitioner being mistress of the establishment as after marriage. Alternatively, he offered to give the petitioner access to her child at Tournaig at all times when she might choose to come, and when it might be reasonably convenient in view of meals, hours of rest, &c., that the child should be visited. He also offered to arrange that during one or two hours on certain days in each week the child should always be kept either in or immediately about the house, so that the petitioner might depend upon finding her, and the only condition he attached was that the petitioner should come unaccompanied, and that the child should not be taken out of the house unless accompanied by its nurse. On 5th March 1881 the Court refused the petition, on the ground that the petitioner had left her husband without any good and sufficient reason in law. The case is reported in 8 R. p. 574, 18 S.L.R. 379.

The present petition was presented by Mrs Mackenzie in 1887 for access to her child, in which it was stated that the petitioner was the daughter of Sir Thomas Edwards Moss, Bart., of Otterspool, near Liverpool, and was married on 26th June 1877 to Osgood Hanbury Mackenzie. There was one child of the marriage, a daughter named Mary Thyra, who was born on 1st March 1879.

The petition set forth that the marriage was from the first a very unhappy one, and that on 4th August 1880 the petitioner, for reasons which it was not necessary to detail, but which appeared to her amply to justify the course she took, left her husband, who was then residing with his mother, the Dowager Lady Mackenzie, at Tournaig House. Since that time the spouses had lived separate from each other. For some time subsequent to the decision of the Court in 1881 the petitioner, when at Poole House, two and a-half miles from Tournaig, which had been taken for her by her father, was permitted to see her daughter at Tournaig on three days each week between the hours of 10 a.m. and 12 noon.

On 14th August 1882 Mr Mackenzie wrote to his wife stating that he had been requested by his mother to let her know that it did not suit her arrangements for the petitioner to remain with her daughter after 11 o'clock on the days she visited her. The petitioner stated that she “at the time reluctantly agreed to this restriction in order to avoid unpleasantness, but soon found that the journeys from Poole House to Tournaig at so early an hour in the morning were extremely trying, and in winter injurious to her health. She accordingly wrote to her husband on 1st September 1883 asking him to allow her to revert to the hours (10 to 12) originally fixed by him for her visits to the child.” He, however, declined to do so, on the ground that it did not suit the Dowager Lady Mackenzie's arrangements that the petitioner should remain at Tournaig after 11 o'clock.

On 8th May 1884 Mrs Mackenzie wrote offering to return and live with her husband as his wife. Mr Mackenzie agreed to receive her back, but requested a written assurance that she would not leave his house and go elsewhere without his consent, or by the advice of the family physician; and secondly, that she would not have anything further to do with Poole House (the residence of the petitioner's father), and that she would not associate (in the parish of Gairloch) with those with whom he could not at present be on friendly terms. Mrs Mackenzie declined to accede to these conditions, but renewed her offer to live with him as his wife, and requested to know when he would be prepared to receive her and her maid. Mr Mackenzie again wrote to his wife naming a day for her return, but reiterating the necessity of her complying with his conditions, and refusing to take in her maid, on the ground that the accommodation at Tournaig was not sufficient to receive her. Mrs Mackenzie wrote declining these conditions. During the course of this correspondence the petitioner continued to have access to her daughter on three days in the week, between 9 and 11 a.m.

On 27th October 1885 Mr Mackenzie wrote stating that for certain reasons given in his letter he must restrict the hours of her visit to the child to two hours one day in the week, from 9 a.m. to 11 A.m., and the access was accordingly limited to that period.

The petitioner averred that her husband had thus departed entirely from the judicial offers he had made in the previous petition; that the petitioner considered that the access which she had to her child was quite insufficient, and hampered with improper conditions, and that therefore she made application to the Court to make regulations for securing to the petitioner adequate access to, and means for enjoying, the society of her only child. The application was made under the provisions of the

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Guardianship of Infants Act 1886, sec. 5, which provides—“The Court may, upon the application of the mother of any infant (who may apply without next friend) make such order as it may think fit regarding the custody of such infant, and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent, or after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother and the liability of the father for the same, or otherwise as to costs as it may think just.”

The prayer of the petition was—“To find that the petitioner is entitled to free access to her child, the said Mary Thyra Mackenzie, at all reasonable times, and to make such order as to your Lordship may seem fit regarding the custody of the said Mary Thyra Mackenzie, and the petitioner's right' of access to her.”

Mr Mackenzie lodged answers, in which he stated that he had always been and still was willing to receive the petitioner back to his home unconditionally. He could not, however, arrange for her being accompanied by her maid, and he thought it right to intimate that he might find it necessary to exercise his authority, as head of the house, to forbid the petitioner leaving his house to reside elsewhere, either temporarily or permanently, and also to forbid her visiting her relations at Poole House, or elsewhere in the parish of Gairloch, in the present circumstances and in the meantime.

The petitioner argued—Under the circumstances the wife here, although living apart from her husband, was entitled to have access to her child. She had previously applied for access, and the Court had formerly refused to grant it, on the ground that the child, living with the father, might come to be a bond of union between the spouses. Now circumstances had changed; the presence of the child in her father's house had not been a bond of union between them, and the amount of access formerly promised by the husband had been very much curtailed— Mackenzie v. Mackenzie, March 5, 1881, 18 S.L.R. 379, and 8 R. 574. There were several cases where a wife who had absented herself from her husband's house had been allowed access to the children of the marriage— Lilley v. Lilley, January 31, 1877, 4 R. 397; Bloe v .Bloe, June 6, 1882, 9 R. 894. It was therefore plain that the settled law and practice of the Scottish Courts was that the parents, even if guilty of marital misconduct, and much more if they were of blameless character, as here, were to have the right of access to their children. The form of order had been settled in many cases— Beattie v. Beattie, November 10, 1883, 11 R. 85; Symington v. Symingtons, March 18,1875, 2 R (H. of L.) 41, and July 16, 1875, 2 R. 974; Stewart v. Stewart, June 3, 1870, 8 Macph. 821; Allan v. Allan's Trustees, July 20, 1869, 41 Jur. 617. Under the Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27) the Court was free to deal as they might think best for the interests of the child. Under the Act the mother was to be as much considered as the father in the matter of custody and access. As a matter of fact the husband had no house of his own to ask his wife to come to, as he was living in his mother's house, and apparently had no other.

The respondent argued—There were still the same grounds for refusing this petition that there were in 1881, when the Court refused the previous one. The ground on which access was refused then was that the lady was wilfully living separate from her husband. She could have gone back and lived with him and her child when she liked, and had no right to ask for any access whatever. The husband had made an unconditional offer to take his wife back, which she refused. What she regarded as conditions were merely regulations to enable the husband to regulate his house properly. The regulations were quite legal—Fraser on Husband and Wife, ii. 896, and cases there cited; Stair, i. 4, 9. The wife was de jure living with her husband, and the Court would therefore not interfere. In all the cases quoted on the other side there were definite allegations of cruelty by one spouse against the other, and they dealt merely with the question of access while some cause was pending for divorce or separation. When the spouses were separate, and access was denied, then the Court would give access to the children of the marriage even where one of the spouses had erred, but here the wife had the power to go to her child if she wished, and no good reason had been shown why she should not go back. The statute of 1886 was merely declaratory of the common law, and did not really change the position of the husband and wife as to custody of the children. To give the wife access here would be an abuse of the discretion of the Court.

After the case had been heard, but before judgment was given, the defender put in process two letters to his wife, the first dated Edinburgh, 13th June 1887, in which he said—“I am quite ready to receive you back whenever you choose to come, without further reference to the matters which you have considered difficulties in the way of your return. I am now willing to leave all of these to your own discretion and good feeling. It is true that I cannot for the present receive you elsewhere than at Tournaig, but my restricted means make this unavoidable & … my whole present income does not on an average much exceed £100 & … Should you in in the meantime be unable to see your way to agree to my proposal, I shall keep it open for your acceptance, and in that event I am willing that you should come to see Mary as formerly viz., three day in the week, from ten to twelve o'clock, and that you should have her to yourself during your visits, without the presence of anyone.” The second was dated 20th June, and in it the respondent said that if the petitioner felt any difficulty in returning to Tournaig on account of his mother being there, she was quite willing to give up her cottage in the meantime to the petitioner and her husband, for a month or a couple of months. The respondent said that he was very unwilling to accept this proposal, “which to my mother at her age means so much, but if you desire it she will readily make the sacrifice.… Of course you know that if my mother leaves us, she takes her income along with her.”

At advising on 7th July—