Re B. (C. H. O.) (an Infant)

This appeal concerns a male child born to the present respondent on 5th April, 1969. It is an appeal from a judgment of His Honour Judge Pennant sitting at the Bournemouth County Court who, after a hearing spreading over 27th February and 24th and 25th March, 1970, on 26th March refused the application of the present appellants, the proposed adopters, for an adoption order in respect of the child. The mother had, as will appear, originally given her consent to the adoption but subsequently withdrew it; and the basis of the application before the county court judge and of the appeal before this court was the contention on behalf of the applicants that in the circumstances the court ought to dispense with the consent the of the mother to the making of the order on the ground that she was withholding her consent unreasonably within the meaning of section 5 (1) (b) of the Adoption Act, 1958. The learned County Court judge in a full and careful judgment decided that the applicants had failed to make out their case.

The appeal was heard in this court on 8th, 9th, 10th and 13th July. On the last of these dates, at the end of the submissions of Counsel, it became obvious that it was necessary to put into writing the reasons for the decision at which we had unanimously arrived, namely, that the appeal should be allowed and that the adoption order should be made. Nevertheless, in order that the parties should not be left in suspense, we thought it right to announce our decision forthwith in open Court without at that stage giving any reasons, and we accordingly did so.

It is necessary to go in some detail into the pasthistory of the mother, Mrs. B, as she now calls herself, and the man with whom she was living at the date of the hearings in the County Court and in this Court. She is now 35 years old and has since 1964 been intermittently living with B, who is 38 and is the father of the child. He is engaged in some sort of motor-car business. So far as concerns the proposed adopters, the male is 38 and the female 27. They both come from distinguished Army families and he is an officer in a well known cavalry regiment. They were married in September, 1965, but have remained childless on account of some psycho-sexual impotence on the part of the husband, a condition which the learned judge considered would be unlikely to render their marriage unstable and should not be taken as a bar to the adoption.

I would interpolate here that, so far as it is relevant, it is plain on the evidence that, without going into detail, the prospects of this little boy as regards material, social and financial considerations and as regards the prospects of a stable home and surroundings would be immeasurably superior if he remains with the applicants to those which he would enjoy if he is returned to the mother with or without B. As one small example of this, it is to be noted that since he was handed over to the applicants in September, 1969, he has already been put down for Eton.

Returning to the mother, she had an unfortunate and unhappy childhood. She was born in 1934 while divorce proceedings were pending between her parents. She was abandoned by her mother some ten days after her birth. There was a settlement of about £14,000 made upon her by her father and the co-respondent in the suit. That fund was principally administered by Mr. Shaw, a solicitor, who was one of the trustees and acted as the mother's guardian. As a matter ofhistory it would appear that that fund has by now been almost wholly expended, save for a sum of £500 put by for use in the event of the mother being able to take divorce proceedings and a final sum of £1,000 due to be paid to her on her fortieth birthday.

In June, 1954, she married a man called A whom she had met when they were both employed in a London store. By him she had two children, a boy born in 1956 and a girl born in 1958. That marriage obviously deteriorated, for by late 1963 or early 1964 the mother was living with at a cottage in Wokingham. In January, 1965, the mother applied for the custody of the two children, but it was awarded to their father, A, possibly because she was living in adultery with B.

I come now to the remarkable matrimonial or extra-matrimonial career of B. He had married in 1955 and there was issue of that marriage one child, the paternity of which disputed. During that marriage, in 1957, he had a child by a woman called G, reputed to be an American millionairess. In March, 1962, his wife divorced him. In July, 1962, he married G, but within eighteen months was associating with the mother. And - to anticipate for a moment - in 1966 divorced him.

In March, 1964, the mother found herself pregnant by B. Whereupon left her and resumed cohabitation with G, his then wife, with a view to a reconciliation, but after some three months returned to the mother, with whom he intermittently remained until May, 1969. In December, 1964, the mother gave birth to a still-born child. In 1966 the mother underwent a serious surgical operation to deal with a blocked fallopian tube, and there is little doubt that, as the judge found, her object in so doing was to enable her to have a child by and so, as far as possible, to cement their union.

By the summer or early autumn of 1968 the mother must have become pregnant with the child with which we are presently concerned. Shortly after that B, as he had done on the occasion of her previous pregnancy, went off and lived with another woman, whose name we were not told, and then after three months returned to the mother. But by March, 1969, he was associating with a young woman of 22 years of age called Helen, though he continued to live with the mother until May when he set up house with Helen.

On 5th April, 1969, this child was born. Very shortly after his birth he suffered from serious cyanotic attacks and was on two occasions in hospital for a fortnight or so. The mother was apparently told by the doctors that as a result of those attacks the boy might have suffered serious brain damage, a view which in the event has happily proved unfounded.

In May or June, 1969, the mother got into touch with Mr. Shaw, her solicitor and trustee, and told him that she wished the baby to be adopted, and as a result Shaw later told her that he had found suitable adopters; they were the present applicants.

On 4th July, after an interview with a Welfare Officer, the mother informed Mr. Shaw, through his secretary, that she had definitely decided upon adoption. On 13th August she took a job in London, having arranged for the baby to be looked after, at first daily by one local woman and later weekly by another. On 10th September the baby was handed over to the adopters, and on the 1st October the mother let her cottage at Wokingham for twelve months, having taken a flat in London.

Going back a little in time, on 15th September the mother had received a sum of £2,500 from her trust on her thirty-fifth birthday. Whether the next event had any connection with that, one does not know. But in October, Mr. B'sHelen whom he had been proposing to marry having gone abroad on holiday, promptly returned to the mother and the two of them had a reconciliatory weekend at Rottingdean and exchanged expensive presents. On 30th October the mother informed Mr. Shaw that she had changed her mind about the adoption and wanted the baby to be returned to her. At Mr. Shaw's insistence she put this instruction in writing, namely in her letter of 31st October.

But Helen returned to this country, heard of the reconciliation between and the mother and attempted or pretended to attempt to commit suicide, whereupon promised to marry her. Having learnt of this, the mother on November 7th telephoned Mr. Shaw's secretary to say that she had changed her mind again about the adoption and wished it to proceed; but within half an hour she telephoned again to say that she did not wish the adoption to proceed. And that has remained her attitude ever since.

The following weekend she spent with Mr. Shaw's secretary, and her attitude then was that, whether returned to her or not, she wished to keep the baby and that if necessary she would take a domestic job where she could look after the baby.

To complete the dates. On 10th November married Helen and on the 11th took a house at Crowthorne where Helen joined him. But their marriage was unsuccessful. Within a matter of days was seeing the mother again. Helen remained with in the Crowthorne house until February of this year. When she left, the mother rejoined there.

I turn now to consider the law, but would make certain preliminary observations. In the first place, it is to be pointed out that Lord Justice Winn in the course of his judgment, which he wrote before his unfortunate illness, and with which I respectfully agree, has not only dealt withthe authorities which were cited to us but has also considered the corresponding provisions of the earlier Acts, viz. those of 1926 and 1950. This will enable me to deal with the authorities more briefly than one might otherwise have done and also, as far as the Statute law is concerned, to confine my observations to the section which applies in the present case, viz. section 5 of the 1958 Act....