Murphy (A.P.) and Another (A.P.) v Love (A.P.) (Re 'W' (an Infant))

This appeal concerns the future of a male child, "W", who was born on 28th March, 1968. Like all cases in which the contest is between foster parents and a natural parent, all perfectly sincere in their motives, of which there have been quite a number in recent years, the decision is one which must cause pain in whichever direction the dispute is resolved and in any tribunal charged with the decision must cause anxiety and a deep sense of responsibility. I feel constrained to express my sympathy with the parties and to say that one of the pleasanter features of this case has been that each has treated the other with a measure of consideration and compassion and behaved with a respect for the interests of the child not universally shown in cases of this kind. I must add that at the conclusion of the hearing before the Committee both leading Counsel expressed a desire that members of your Lordships Committee hearing the case should disclose the nature of the decision they had it in mind to recommend to the House and in order to put an end to the period of uncertainty and distress the parties must necessarily suffer whilst awaiting the final result of these protracted proceedings my noble and learned friends and I thought fit as an exceptional procedure to accede to this request. I am sure your Lordships will endorse the course we thought fit to take.

The case falls to be decided under the terms of the Adoption Act, 1958. It is a proposal for the adoption of "W" by the foster parents, the present Appellants, with whom "W" has resided since a few days after his birth, and it is resisted by the infant's mother, the Respondent to the present appeal. The nature of the proceedings thus distinguishes the case at the outset from cases decided in the course of matrimonial disputes or for the guardianship of infants where the main issues relate to guardianship custody or control. In the latter group of cases, the duty of the Court is defined by section 1 of the Guardianship of Infants Act, 1925, which directs the Court that it shall:

"regard the welfare of the infant as the first and paramount consideration".

In proposals for adoption, however, such as that in question here, the duty of the Court is defined by section 7(1) of the Adoption Act, 1958, in markedly different terms. Under that Act, before making an adoption order the Court is directed that it:

"shall be satisfied—( a) that every person whose consent is necessary under this Act, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights; ( b) that the order if made will be for the welfare of the infant; and ( c) [irrelevant for the purposes of this appeal]"

Thus, in custody cases the welfare of the child is the first and paramount consideration, but in adoption proceedings the welfare of the child is the second of three separate conditions as to each one of which the court has to be separately satisfied, and the first of which is that the consent of the parent must be forthcoming at the time of the hearing unless the consent has been validly dispensed with by the Court under the other provisions of the Act.

The difference, it need hardly be said, is due to the different nature and effect of the orders sought in the two classes of case. In custody cases what is in question is the custody, care, or control of the child, or perhaps the administration of his property, and that is why his interest is the first and paramount consideration. But in adoption cases, what is in issue is the parent-child relationship itself and in that relationship the parent as well as the child has legitimate rights. Under section 13 of the Adoption Act, 1958, upon an adoption order being made:

"all rights, duties, obligations and liabilities of the parents … in relation to the future custody, maintenance and education of the infant … shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as if the infant were a child born to the adopter in lawful wedlock; and in respect of the matters aforesaid … the infant shall stand to the adopter exclusively in the position of a child born … in lawful wedlock."

The new relationship extends even to the adoptive parents' right to give or withhold consent to marriage and serves to bring the adoptive brothers and sisters within the prohibited degrees of matrimony.

The result is that in the Adoption Act Parliament has enacted provisions for the protection of natural parents the normal effect of which is to enable the natural parent to veto an adoption order unless one of the exceptions which it provides enables the Court to dispense with parental consent. The argument in this case revolves very largely round one of these exceptions.

Had the test of adoption been the welfare of the infant, there is no doubt that the order must have been made. In discharge of his duty under section 7 (1) ( b) of the Act the County Court Judge made the finding, that the proposed adoption was for the infant's welfare and he described this finding as "inevitable". The Court of Appeal did not disturb it, and, as will be seen, largely founded their judgment on it. For the Respondent, Mr. Morris Jones candidly, and, as he clearly had no choice, properly, agreed that this finding was unassailable. Equally unassailable was the fact that the parental consent was not in fact forthcoming. The mother had signed a consent form before the hearing, but, as she was fully entitled to do, later withdrew it in an undated letter received some time in March, 1969, and has never resiled from this position. It followed that no adoption order could be made, despite the finding as to welfare, unless the County Court Judge was entitled to dispense with the mother's consent. This the learned judge purported to do, and made an adoption order at an adjourned hearing in July, 1969. The first, and principal, question in the appeal from his decision was, and is, whether he was, and is entitled to dispense with the mother's consent in this way. Holding that he was not, the Court of Appeal discharged the order for adoption. The matter now comes before Your Lordships' House.

The power to dispense with the consent of a parent in adoption proceedings is contained in section 5 of the 1958 Act. The conditions in which the Court may exercise this power are defined in subsections (1) and (2) in the following terms:—

"(1) The court may dispense with any consent required by paragraph ( a) of subsection (1) of section four of this Act" (this includes the consent of a parent) "if it is satisfied that the person whose consent is to be dispensed with—

( a) has abandoned, neglected or persistently ill-treated the infant; or

( b) cannot be found or is incapable of giving his consent or is witholding his consent unreasonably.

(2) If the court is satisfied that any person whose consent is required by the second paragraph ( a) has persistently failed without reasonable cause to discharge the obligations of a parent or guardian of the infant, the court may dispense with his consent whether or not it is satisfied of the matters mentioned in subsection (1) of this section."

The only one of these provisions on which the County Court judge was asked to rely in order to dispense with the Respondent's consent in the instant case was the concluding phrase of section 5(1)( b). He...