Adoption Applications And Parental Responsibility
Author | L. J. Blom‐Cooper |
Date | 01 September 1957 |
Published date | 01 September 1957 |
DOI | http://doi.org/10.1111/j.1468-2230.1957.tb02713.x |
ADOPTION APPLICATIONS AND PARENTAL
RESPONSIBILITY
IMPLEMENTATION
of the recommendations contained in the Report
of
the Departmental Committee
on
the Adoption of Children
presented to Parliament in September,
1954,
is still awaited. The
delayed announcement by the Government that
it
intended to
legislate-it finally came in March,
1956
z-had already exacerbated
those directly concerned with the problems of child welfare. This
feeling was expressed in a joint letter to the Editor of
The
Times
on
January
30,
1956,
from the Committee’s Chairman (Sir Gerald
Hurst, Q.C.) and the Chairman of the Standing Committee for the
Societies for Adoption (The
Hon.
Mrs.
G.
R.
Edwards).s
In
the course
of
the letter, enumerating various lacunae and
defects in the present law, the correspondents alluded to the
clause in the Adoption Act,
1950,
which allows the consent of the
natural parent
or
guardian4 to be dispensed with
if,
inter
alia,
it
is unreasonably withheld.5 They stated that the clause “has
become a dead letter and there is now
no
way in which these
children
fi.e.,
prospective adoptees] can be protected from
frivolous
or
vindictive withdrawals unless
a
new ground for
dispensation is enacted.’’ This view, which is in terms more
critical than the Committee’s Report
6-in
part
no
doubt influenced
by decisions subsequent to the Committee’s deliberations-is not
an unnatural reaction
to
the interpretations placed upon the section
by the courts. Although the expression
“
dead letter
”
may be
inapposite to describe the present frustration of adoption applica-
tions, the emphasis
on
parental rights in testing whether consent
to adoption is
“
unreasonably withheld
”
has unduly circumscribed
the powers of the courts, in particular the courts of summary
jurisdiction.
The present article attempts to investigate the extent to which
adoption applications are likely to
be
thwarted by the capricious-
ness of a natural parent and whether the clause at present
operates
in
a socially desirable manner.
In
evaluating the present
1
Cmd.
W.
a
The Times, March
7, 1956.
During the debate
on
Child Welfare the Govern-
ment reiterated its intention to legislate as
soon
as time could be found: H.C.
Debate, July
2, 1956,
Vol.
555,
cots.
lOM, 1057
and
1106.
In
answer to
Mrs.
Barbara Castle, M.P., the Home Secretary stated the Government
could give no undertaking to bring
in
legislation in the present Session: H.C.,
February
28,
1957,
Vol.
565,
cols.
1393-1394.
The
Ron.
Mrs.
Gc.
R.
Edwards was also
a
member
of
the Committee,
4
Since the guardian’s consent may not involve a consideration
of
the blood tie
the present article does not deal with guardians. Indeed, all the reported cases
deal with the consents
of
a natural parent.
5
8.
3 (1)
(c).
For a brief discussion
on
the problem
of
consents, see
A
Century
of
Family
Lam,
Chap.
3
(11)
by
T.
E.
James, pp.
45
and
50
et
seq.
6
Paras.
113-122,
pp.
5%-32.
478
474
TEE
MODERN
LAW
REVIEW
VOL.
20
position,
it
is proposed to consider (a) the history of the legislation;
(b) the legal interpretation of the present clause; (c) the experience
of
Commonwealth countries;
(d)
the cumulative effect
of
a new
dispensation clause and an introduction of a pre-application
probationary period; and (e) the possibilities towards
a
solution
oE
the problem.
HISTORY
The power
to
dispense with consents was provided for in section
2
(3)
of the
1926
Act.' The section (which appears now in substan-
tially similar terms in section
2
(4)
(a)
of the
1950
Act) set out
those persons whose consents were necessary as a prerequisite to
the making of an adoption order. A proviso stated that the court
might dispense with any consent
if
the person whose consent had
to be sought had abandoned
or
deserted the infant,' was incapable
of giving consent
or
could not be fo~nd,~~
or
was a person who
being liable to contribute to the support of the infant has
persistently neglected
or
failed to contribute to such support,'O
cc
or
is
a person whose consent ought,
in
the opinion of the court and
in all the circumstances
of
the case, to be dispensed with."
7
The
1926
Act was
a
replica of the draft Bill presented
as
an
addendum to the
Tomlin Committee's Report (Cmds.
2401
and
2469).
Some of the criticisms
of the statutory introduction,,of adoption were indeed bizarre, at least to
a
reader in
1957:
Dr.
Jenks, Recent Changes in Family Law,"
44
L.Q.R.
(19%) 314,
at
p.
319,
writing of the
19%
legislation, said: "But it is one
of the most pamful conclusions which follow from
a
study of Acts of Par-
liament, and the cases arising out of them, that there appear to exist in the
world
a
large number of persons who make
a
practice of perverting to their
own infamous ends the beneficent intentions
of
legislators. And
it
is to be
feared that such persons will find
only
too many opportunities in the Adop-
tion Act for the exercise of their favourite pursuit." Dr. Jenks thought that
there wag
a
real risk
of
"
unscrupulous persons gradually acquiring, by means
of careful changes
of
locality,
a
considerable gang
of
children, over whom
the have legal and irrevocable rights, and exploiting these children for sordid
anlintamow purposes.
. . .
What then is
to
prevent
an
ener etic and peri-
patetic pair gradually Fllecting specimens of unfortunate ciildhood from
all parts of the country
?
8
The phraseology of the section is retained in section
40
(2)
of the
1950
Act,
re-enacting
8.
11
(3)
of the
1939
Act, in relation to the requirement for the
licensing authorit
to
give its consent to
a
child being removed out of the
jurisdiction for a&ption abroad.
9
s.
3 (1)
(a)
of
the
1950
Act is differently worded;
it
deals with the case of
a
child
"
abandoned, neglected or ytrsistently ill-t;~ated."', The argument that
there was
a
distinction between abandonment and desertion" was re-
jected
by
Lord Goddard C.J. in
Watson
v.
Nikolaisen
L1955.1
2
Q.B.
286,
~~.
at
pp.
*297.
$a
Re
C.
(an infant),
The Times, April
2,
1957.
10
The wording
in
s.
3
(1)
(b)
of the
1950
Act, which
in
substance reproduces
the
19%
provision. and the relevant part of
8.
2
(4)
(a)
have been altered to
read,
"who
is liable by virtue
of
any order or agreement
to
contribute to
the maintenance of
an
infant." Since it has been,&held
in,pe
M.
(an Infant)
[1955]
2
Q.B.
489
that
a
putative father is not
a
parent within the mean-
ing
of
the word in
s.
9
(4)
(a),
a
putative father who voluntarily contributes
to the child's maintenance should be included
as
being
a
person whose consent
is to be sought,
(1956) 19
M.L.R.
202.
A similar situation persists in Scot-
land despite the contention that rights were given to the putative father which
would make him
a
"
parent," under the Illegitimate Children (Scotland)
Act,
1930;
A.
v.
B.,
1955
S.L.T.
436.
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
