Scottish Court of Session Decisions

Sequel to case of Edgar, Petitioner, reported supra, pp. 76, 244.

Miss Margaret Brown Fisher presented a petition for recal of the sequestration of her estates and of the factory and appointment of Mr John M. M'Leod as judicial factor on said sequestrated estates and also as factor loco tutoris to Evelina Burns Edgar.

She explained that the said Evelina Edgar returned to her upon 3rd September 1893 voluntarily, that Evelina attained minority on 26th May 1894, that she was most desirous of continuing to live with her, and had written to that effect to her father on 28th May. With regard to the

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orders of Court, she averred that the first petition had been served upon an aunt of the same name, and that she had never seen or heard of the petition for the sequestration of her estates or of the order for her personal attendance at the bar until her return to Scotland in May. She submitted herself unreservedly to the judgment of the Court, but prayed that her personal attendance might be dispensed with as she was in a delicate state of health and of a nervous and hysterical temperament. She expressed her willingness to communicate the address of the child to any person appointed by the Court, so that her real wishes might be ascertained to the satisfaction of the Court. She had paid all the expenses incurred by the father in the various petitions.

The father James Glen Edgar lodged answers in which he submitted that the sequestration having been originally laid on because of the petitioner's contempt of Court, ought not to be recalled until she had delivered the child to him. He averred that “the letter written by the said Evelina Burns Edgar to respondent dated from London on 28th May 1894, two days after she attained minority, which is founded on by petitioner, is not the voluntary and uninfluenced letter of the said child. Its terms are, along with those of respondent's answer thereto, referred to. The petitioner deliberately kept the child in her control and custody for the purpose of influencing her against her father with the view of getting her when she reached minority to say that she did not wish to live with her father but with the petitioner, and the views and wishes now attributed to the child are truly not hers but the petitioner's, and are opposed to the real wishes of the child and to her best interests. The respondent respectfully submits that his said daughter is not entitled now to insist that her own residence should be away from him, and that she ought to be restored to his custody.”

The Court appointed Mr Charles C. Maconochie, advocate, curator ad litem to Evelina Burns Edgar, that he might make inquiries into the circumstances of the case, ascertain his ward's true wishes, and report.

The curator reported “that on Monday, July 16th, he had a meeting with the ward, who had been brought to Edinburgh at his request. The child was under the charge of the petitioner, with whom she is now living. She is tall for her age, and slight, but looks well and happy. She was neatly and suitably dressed, and altogether looked well cared for.

“The curator first saw the ward alone, and then in the presence of the petitioner. Throughout the interview she gave her answers frankly and with every appearance of truthfulness. She seems above the average in intelligence, and the curator has satisfied himself that her education has been, and is being, well attended to by her aunt. She stated to the curator that she always attends the Protestant Church with her aunt in whatever place she may be living.

The ward was most distinct and emphatic in the expression of her wish to remain with her aunt, to whom she is evidently genuinely attached. This attachment is, it seems to the curator, the main cause of her wish to live with the petitioner; but she also seems to be satisfied that she would be more comfortable and well cared for in her aunt's house than in that of her father. For her father she seems to feel little or no affection. She would not say that he had ever been unkind to her, but says that she knows little about him, and her main objection to going to live permanently in his house appeared to be that in doing so she would be leaving ‘home’ and going to live in a strange place.

The curator may mention that the ward told him that she not only went back to the petitioner's house voluntarily in September 1893, but that it was she who asked her cousin Archibald Fisher to take her home; she also stated that the letter of 28th May 1894 was a genuine expression of her wishes, that it was not inspired by anyone, that the petitioner was absent from London when it was written, and that she only received some slight assistance in writing it from a lady with whom she was then staying.

The view of the curator, that the ward is quite a free agent in the matter, was, if possible, strengthened by what he saw of the manner of the ward and petitioner towards one another during the time when both were in the room. He is satisfied that they are much attached to one another, and that the petitioner has used no other influence than that of affection and kindness to induce the child to express her wish to remain with her.

On the whole matter, the curator has no hesitation in stating it as his opinion that it would be a real grief to the ward, and directly contrary to her genuine wishes, were she taken away from the petitioner's house and sent to live with her her father,”

Argued for the petitioner—A minor was entitled to choose her residence apart from the wishes of the curator, even although the curator was her father—Bankton, i. 6, 4; Fraser on Parent and Child, 65; Harvey, June 15, 1860, 22 D. 1198; Simpson on The Law of Infants, 141, and cases there cited. The opinion of Stair on the father's power was extreme, and had not been accepted as the law—see More's Notes, xxxi. No doubt the Court would protect a girl of twelve against herself, if the surroundings of her chosen residence were detrimental to her moral and general welfare, but here the curator had reported that she would be better with her aunt than with father.

Argued for respondent—The patria potestas gave a father far greater powers than any other curator—Stair, i. 5, 6, &c. More's Notes were based on cases of curators other than fathers. It was absurd to say that a father could not make his son of fourteen live with him and go to school. Of course the child's wishes were an element

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to be considered, and to which more weight would be given the nearer he or she approached majority. The real question was the welfare of the child. Here it would be much better for her to live with her father and play with her step-brother and sister than live alone with a solitary unmarried lady, who on her own showing was nervous and hysterical. Harvey's case was exceptional, for there the father's moral character was bad; nothing in this case was suggested against the father's fitness for the charge of this girl. The Lord Justice-Clerk's opinion in that case was in his favour, also Ersk. Inst., i. 6, 53, &c., and A v. B, February 3, 1870, 42 Jurist, 224.

At advising—