Re O (an Infant)

An unmarried mother gave birth to a eon on the 13th November, 1968. She desired the child to be adopted and when it was only three weeks old it was taken into the home of the proposed adopters. The putative father now seeks to take it from the adopters and have the custody of it himself. He claims that if the mother does not wish to have the child, he has himself a right to it.

The facts are these. The putative father, who now seeks the custody, was himself the child of a broken home; his parents were divorced and he himself was brought up by foster parents from the age of two. His own experiences from that tire have, no doubt, influenced his views as to the way in which this child should be brought up. He served in the Array, but he has had many Jobs, none of them very good. He was doing some writing when, in the year 1958, he met the mother who was working in a town in the country. There they became friendly, and eventually, early in 1962, she became pregnant by him. When she knew that she was having the child, she ask" him to marry her, Nit he could not make up his mind; he vacillated one way and the other. So she came to the conclusion that he. would not marry her. Then, after the child was born, the mother, as 1 have Bald, took steos to have it adopted. The child was put into the hands of the proposed adopters on 2nd December, 1952. It has been with them ever since. The father has never seen the child. Later on the putative father aooarently, in March of 1953, was ready to marry the mothor, but In view of what had happenod she refused to marry him

What is to happen If he were granted custody? He says that he would get one of his sisters, a responsible woman with a family of her own, to have the child until he could obtain a house, probably in the country, and obtain a housekeeper to look after him those were the circumstances which he put forward as supporting his claim to custody.

There were two Applications before the County Court Judge, one by the putative father for custody, the other by theproposed adopters for adoption. The County Court Judge heard them separately. He heard the Application for custody first. He came to the conclusion that, owing to the difficulties which would follow the giving of custody to the. father, he thought It better to refuse him custody. Then, afterwards, the Judge went, on to hear the Application for adoption by the proposed adopters. He granted the Application for adoption, subject to appeal.

I can well understand the Judge's reasons for hearing the Applications separately. He did not want the proposed adopters to come into contact with the father of mother of the child. That was right, but I think it would be better for the Judge, whilst hearing them separately, to defer his decision on the first Application until he has heard the second. After all, the real contest is who should have the child the father or the adopters? Such a situation cannot be well resolved until the Judge has heard all that has to be said on the merits of each of them.

The father appealed to Mr Justice Pennycuick. That learned Judge made it clear that, if left to himself, he would have given custody to the father. He had previously expressed the view, in an earlier case of re "B", that the natural father now a days, since the 1959 Act, is in the same position as a legitimate father. He is not merely entitled to particular consideration by the tie of blood; he has also a right by virtue of his fatherhood. The Judge said: "I find it abhorrent to deprive a father, responsible and able to look after his child, of that child." But he felt that in view of the observations of this Court reported in In re ( Adoption Application1963 Chancery Division, page 315) he could not give effect to his own view. Both Lord Justice Danckwerts and Lord Justice Diplock made it clear that the natural father has not any right, merely by virtue of his fatherhood, to claim custody. The first and paramount consideration is the welfare of the child, to which other considerations must be subordinate. That case was remitted to Mr Justice Wilberforce, who acted on those observations. (See In re Adoption Application, reported in 1963 3 Weekly Law Reports at page 357). In these circumstances Mr Justice Pennyouick felt bound to follow those observations. He held that the father hare should not have custody and that the adoption Order should stand. The father now appeals to this Court.

Mr McHall has urged us to hold that the observations of this Court in the case which I have mentioned were obitar dicts and erroneous. He says that on a true interpret?tion of the Legitimacy Act, 1959, Section 3 the natural father is in the same position as a legitimate father. If the contention of Mr McHall were right, I should have expected Parliament to have said so...