Cameron v Gibson
| Jurisdiction | Scotland |
| Judgment Date | 24 November 2005 |
| Date | 24 November 2005 |
| Docket Number | No 14 |
| Court | Court of Session |
Court of Session Inner House First Division
Lord President (Cullen of Whitekirk), Lord Kingarth, Lord Carloway
Process - Reduction - Adoption order granted in sheriff court - Order granted in respect of person no longer an infant as required by statute - Whether order made a nullity or merely error of fact or law - Adoption Act 1950 (cap 26), secs 1(1), 21
Section 1(1) of the Adoption Act 1950 provides that a court may upon application made in the prescribed manner make an order authorising the adoption of an infant by the applicant. Section 45 thereof defines an infant as a person under 21 years of age.
A sheriff, on 26 February 1951, authorised the adoption of an individual who had just attained 21 years of age. The individual was unaware of the adoption order having been granted until he years later contacted solicitors acting on behalf of his deceased brother. He thereafter raised an action for production and reduction of the sheriff's decree and following his death his executrix-nominate was sisted in his place.
It was averred that the deceased was already 21 when the adoption order was made and that the order granted was therefore incompetent. Secondly, it was averred that the form of consent produced to the sheriff and bearing to have been signed by the deceased had not in fact been signed by him. The petition granted by the sheriff contained a statement that consent had been obtained from the deceased and on this basis intimation had apparently been dispensed with and the order granted. The Lord Ordinary allowed the case to proceed to proof before answer on the second ground advanced, namely the alleged defect in consent and held irrelevant the pursuer's averments anent the first ground.
On appeal to the Inner House, it was argued for the pursuer and reclaimer that the interlocutor complained of should be recalled and decree granted de plano, which failing the whole of the pursuer's averments should be remitted to proof before answer. The court did not have power to grant an adoption order save in respect of an infant. The defenders and respondents argued that, although it was accepted that the deceased was over 21 years of age at the making of the order, the court could competently grant such an order and had done so in error of law or fact in circumstances which were no longer clear. A proof before answer should be allowed.
Held that the adoption order granted was ultra vires and fell to be reduced (paras 20-23); and appeal allowed.
Alexander Cameron MacIntyre raised an action for production and reduction of a decree of the sheriff court at Fort William dated 26 February 1951 authorising his adoption against Ian MacIntyre Gibson and another as executors of Dugald MacIntyre. Subsequent to the pursuer's death, the court allowed his executrix-nominate to be sisted in his place. Following debate at the procedure roll, the Lord Ordinary (Drummond Young) allowed a proof before answer limited to certain of the pursuer's averments. The pursuer reclaimed the interlocutor.
The cause called before the First Division, comprising the Lord President (Cullen of Whitekirk), Lord Kingarth and Lord Carloway, for a hearing.
Cases referred to:
Adair v Colville & Sons 1926 SC (HL) 51; 1926 SLT 590
Anisminic Ltd v Foreign Compensation CommissionELRWLRUNK [1969] 2 AC 147; [1969] 2 WLR 163; [1969] 1 All ER 208
B (Adoption: Jurisdiction to Set Aside) (Re)ELRFLRWLRUNK [1995] Fam 239; [1995] 2 FLR 1; [1995] 3 WLR 40; [1995] 3 All ER 333
Bain v Hugh LS McConnell Ltd 1991 SLT 691
Bunbury v FullerENR (1853) 9 Exchequer 111
Corbidge v SomervilleENR 1913 SC 858
F (Infants) (Adoption Order: Validity) (Re)ELRWLRUNK [1977] Fam 165; [1977] 2 WLR 488; [1977] 2 All ER 777
J and J v C's TutorSC 1948 SC 636; 1948 SLT 479
McMillan v Free ChurchUNK (1861) 23 D 1314
Manchanda v ManchandaFLRUNKUNK [1995] 2 FLR 590; [1996] 1 FCR 733; [1995] Fam Law 603
Munro v RoseUNKUNK (1855) 18 D 292; 28 Jur 122
Philp v ReidENR 1927 SC 224; 1927 SLT 168
R v Fulham, Hammersmith and Kensington Rent Tribunal, ex p ZerekELRUNK [1951] 2 KB 1; [1951] 1 All ER 482
Robertson's Exr v RobertsonSC 1995 SC 23; 1995 SLT 429
Syed v AhmedENR [2005] CSIH 72; 2005 1 SC 165; 2005 Fam LR 71
Watt v Lord AdvocateSC 1979 SC 120; 1979 SLT 137
Textbooks etc. referred to:
Fraser, P, A Treatise on the Law of Scotland Relative to Parent and Child and Guardian and Ward (Edinburgh), p 200
Maclaren, JA, Court of Session Practice (W Green, Edinburgh, 1916), pp 695, 696
Wade, WA, and Forsyth, C, Administrative Law (9th ed, Oxford University Press, Oxford, 2004), pp 251-253, 255
Walker, DM, The Law of Civil Remedies in Scotland (W Green, Edinburgh, 1974), p 184
At advising, on 24 November 2005, the opinion of the Court was delivered by Lord Kingarth-
Opinion of the Court- [1] On 23 December 1950 Mary Ferris or Cameron presented a petition to the sheriff court at Fort William seeking authority to adopt Alexander Cameron, now deceased ('the deceased'). On 26 February 1951 the sheriff granted authority to Mrs Cameron to adopt the deceased and made an adoption order in respect of him. The deceased raised the present action for production and reduction of that decree, and on his death the court, on 12 May 2005, allowed his executrix-nominate to be sisted in his room and place.
[2] In support of reduction averments are made to the following effect. The deceased was born on 26 February 1930, and was named Alexander Cameron MacIntyre. His mother was Margaret Finlayson MacIntyre. The deceased was brought up in the household of Donald and Mary Cameron at 76 Camaghael, Fort William. In September 1950 he moved to Slough, Berkshire where he thereafter resided. From November 1950 he was known as Alexander Cameron. On 23 December 1950 Mary Cameron presented the adoption petition referred to above to the Sheriff Court at Fort William. Decree of adoption was granted on 26 February 1951, which was the deceased's twenty-first birthday. He, however, was unaware that he had been adopted until he contacted solicitors who acted on behalf of his brother, the late Dugald MacIntyre. He was then advised that he had been adopted and that he had no claim in relation to Dugald MacIntyre's estate.
[3] Reduction of the adoption order is sought on two grounds. First, on 26 February 1951 the pursuer attained 21 years of age. Section 1(1) of the Adoption Act 1950, the statute in force at the time, permitted the court to make an order authorising the adoption of 'an infant'. Section 45 of the Act defined 'infant' as 'a person under 21 years of age'. The deceased was therefore not under 21 years of age when the adoption order was made. On that basis it is claimed that the order was incompetently granted. Secondly, a form of consent bearing to have been signed by the deceased, signing 'A Cameron MacIntyre', was produced in the adoption proceedings in Fort William Sheriff Court. The form bears to have been signed on 18 December 1950, in Fort William. It is averred that the form of consent was not signed by the deceased, and that on the date stated in the form he was living in Slough. In support of the averments that the form of consent was not signed by the deceased, reference is made to the opinion of a consultant forensic document examiner. Paragraph 12 of the petition in Fort William Sheriff Court contained a statement that consent had been obtained from the deceased. On 15 January 1951 the sheriff substitute dispensed with intimation on the Walls of Court and made no order for intimation on the deceased. In these circumstances it is averred that the petition proceeded on the false basis that the deceased had consented to the making of the adoption order.
[4] The defenders tabled pleas in law to the competency of the remedy sought and to the relevance of the pursuer's averments, and the matter came before the Lord Ordinary on procedure roll. The Lord Ordinary, by interlocutor of 2 December 2003, (repeated when the present pursuer was sisted in room and place of the deceased on 12 May 2005) allowed the case to proceed to proof before answer on the second of the grounds advanced, namely the alleged defect in consent. Although he repelled the defenders' plea to the competency of the action in relation to the first basis on which it is brought (albeit per incuriam the interlocutor indicated that he had sustained that plea), he held irrelevant the pursuer's averments in that connection (made at art VI), and excluded those averments from probation. It is in relation to that part of his decision...
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