Re F. (R) (an Infant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE KARMINSKI |
| Judgment Date | 21 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0721-2 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J0721-2
In The Supreme Court of Judicature
Court of Appeal
Appeal from Kingston-upon-Thames County Court.
Lord Justice Salmon
Lord Justice Edmund Davies and
Lord Justice Karminski
In the Matter of an Adoption Order Z. 2509 made in the Kingston-upon-Thames County on the 20th day of February, 1969.
Mr. P.ESLING (instructed by Messrs Routh, Stacey, Pengelly & Co., Agents for Messrs J. W. Ward & Son, Bristol) appeared on behalf of the Appellant.
Mr. P. THOMSON (instructed by Messrs Neil Maclean & Co., Kingston-upon-Thames) appeared on behalf of the Respondents.
In this case the Appellant was married to John Richard David Fulton on the 14th October, 1961, and a boy, Robert Charles John Fulton, was born on the 25th October, 1965. In June 1964, when the little boy was only a few months old, the Appellant left her husband, taking the boy with her: but in October 1964, when he was just about a year, she brought him back to her husband and left the little boy with him. He was not able himself to look after this baby and handed it over to a Mr. and Mrs. Barham, the Respondents, who were, I think, his landlords at the time, who very kindly consented to take the child over, and in fact became its foster parents. There the little boy has been ever since. He has become extremely fond of them. She is the only mother that he has really ever known, and he regards Mr. Barham for all practical purposes as his father. They are very fond of the little boy and regard him as their child, and certainly have always treated him as such.
For a time the Appellant paid sporadic visits to her son whilst he was with Mr. and Mrs. Barham, but apparently the last time she saw him was in March 1965. This Court has not formed any view as to why that was the last time she saw him. There may be or there may not be perfectly good explanations, but the fact is that she has not seen that little boy for well over four years. She has been living and still lives with Mr. Martin as his wife, by whom she has two children.
The Respondents were living in Bath. They moved from there to Hemel Hempstead, and from thence to Kingston on-Thames, where they now reside. The Respondents were very anxious to adopt this little boy, and according to them from about 1965 or 1966 onwards they had no idea where the natural mother, the Appellant, could be found. Theytook proceedings to adopt the little boy, his natural father giving his consent.
Section 5 of the Adoption Act reads as follows: "The court may dispense with any consent required by paragraph (a) of sub-section (1) of Section 4 of this Act" - and that, I may say, in this particular case would be a consent by the mother, the Appellant - "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 withholding his consent unreasonably. (2) If the court is satisfied that any person whose consent is required by the said 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 sub-section (1) of this section".
When the Respondents applied to the County Court, it occurred to them that although they might well have grounds, other than the ground that the natural mother could not be found, on which they could persuade the Court to dispense with her consent, since they could show - this is their case - that the mother could not be found, it would be much better, rather than making an attack on the parent of the child whom they were about to adopt, to confine themselves to the ground that the mother could not be found.
They wrote or instructed their solicitors to write to her last known address, and the letter was returned "Gone away". They caused advertisements to be inserted in the Press, notifying her of the proposed proceedings. They caused enquiries to be made from the Post Office and other sources in an attempt to trace her whereabouts, but all these steps proved to be fruitless.
Accordingly, the matter case on before the learned County Court Judge on the 20th February of this year, and on the material before his he made the only possible Order that he could make, namely, an Order for the adoption of this little boy by the Respondents.
The natural mother, the present Appellant, however, learnt for the first time of this Adoption Order in April of this year, and she wishes to have the custody of her child and was shocked (so she says) by the news that an Adoption Order had been made in respect of him. She immediately applied for Legal aid, but it took a little while to get, and she was unable to apply for leave to appeal from the Adoption Order until this month, and the matter accordingly now comes before us out of time.
The first question to consider is whether there ought to be any extension of time, whether there is any reasonable excuse for the delay, such as there was, in bringing on this application. For my part, I think that the facts that I have related, namely that she did not hear of the Order until last April and was not able to get legal aid until very recently, do excuse the delay, and I think that we should grant an extension of time.
I would like to point out that in cases of this kind an extension is not granted lightly. The child's interest has to be taken into account, and particularly what has happened since the date when the Order was made and the date of the application. I am not laying down any general principle, but if some years had gone by, I think a very exceptional case would have to be made out for the Court in its discretion to extend the time; but here we are dealing with a delay of only a few months.
So I would grant leave, and I think my brothers concur that leave must be granted, and, indeed, we have heard the appeal.
The question arises as to what should be done now. She mother has filed an affidavit by herself, to which I need not refer, and one from her father, and if what is stated in the father's affidavit is correct, it appears that he has lived at his present address, 69, Melrose Avenue, Kitcham for 30 years, that both the Respondents have known him, at any rate, since 1960 and visited him in 1961 and 1962 and then again in 1966, and according to him addressed a letter to him, which he received at that address in 1966. That is well before the Adoption Order was made. He says that it was apparent from what he told them that he was in touch with his daughter.
We are in no position to express any view as to whether or not the facts in that affidavit are correct, but if they are correct, this is not a case where the...
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