Re M, an Infant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 06 July 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0706-2 |
| Court | Court of Appeal |
[1955] EWCA Civ J0706-2
Lord Justice Denning,
Lord Justice Birkett and
Lord Justice Romer.
In The Supreme Court of Judicature
Court of Appeal
MR JOHN WILMERS (instructed by Messrs Jaques & Co., agents for Messrs Mary E. Sykes & Co., Huddersfield) appeared on behalf of the Appellants (Applicants).
MR F.P. NEILL (instructed by Messrs Vizard, Oldham & Co., agents for Messrs Whitfield, Son & Hallam, Dewsbury) appeared on behalf of the Respondent (Respondent).
In 1942 a married man then aged 40, who was separated from his wife, had sexual relations with a single woman then aged 20, as a result of which a child - a girl - was born to them on 1st April, 1943. The man and woman lived together as if they were man and wife for 11 years until on 10th April, 1954, the woman left taking the child with her. A month
an affiliation order made against him, or has agreed to contribute to the maintenance of the infant, his consent is necessary under the Act. But that is because of the order against him or his agreement. It is not because he is a "parent". (III) Section 10 of the 1950 Act extinguishes the rights of the "parents" in the child: If the natural father had any rights, the section would go to show he was a parent: but as he has no rights, it goes to show he is not a "parent". (iv) The Rules made by the Lord Chancellor in 1952 proceed on the footing that the consent of a natural father is not required unless an affiliation order has been made against him.
In my opinion therefore the natural father has no right to object to this adoption. His consent was not required, and the Judge was wrong in thinking it was.
There is only one further point. It was suggested that the natural father is still a respondent to the application and should be heard on the merits of the Adoption Order. I do not think this is correct. He was only added as a respondent because it was thought thathis consent was necessary. Now that it is found to be unnecessary he disappears from the scene.
It is reasonably plain that the Judge would have made an Adoption Order except for his erroneous belief that the consent of the natural father was necessary. Now that it is seen to be unnecessary we should, I think, make an Adoption Order. The appeal should be allowed and an Adoption Order made.
This was an appeal by the mother of a twelve year old girl and her husband, whom she had. married in May, 1954, against a decision of His Honour Judge Hyles Archibald in Chambers at Huddersfield. The learned County Court Judge had refused to make an Adoption Order in favour of the mother and her husband, on the ground that the father of the child was a parent within the meaning of the Adoption Act, 1950, and the father had refused his consent to the adoption.
The child was admittedly an illegitimate child and thefather was known, and was living, and in fact appeared before the learned County Court Judge. An affidavit was read, which had been made by the mother, and that showed that when the mother was twenty years old she went to live with a married man of fifty years of age, who was separated from his wife, and the child in question was born in 1943. The mother left the father in 1954 and took the child with her. She had then been living with the father for twelve years.
The mother of the child married her present husband in May, 1954, and the child was still living with her. The mother and her husband wished the child to go to her school in the name of her step-father, and it was for that main reason that the Adoption Order was applied for. Mr Wilmers on behalf of the mother and her husband raised two points: (1) that the father of an illegitimate child was not a "parent" within the meaning of the Adoption Act of 1950 and (2) if lie was to be regarded as a "parent" his withholding of his consent in the present case was unreasonable. If the first submission was good in law, the second point did not arise.
The Adoption Act of 1950 in section 2 (4) defined the persons whose consent was necessary to be obtained before an Adoption Order could be made and it stated that: "except with the consent of every person who is a parent or guardian of the infant or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant" no Adoption Order should be made.
The learned County Court Judge had himself taken the view that the father of the child must give his consent, presumably on the ground that he was a "parent" within the meaning of the subsection.
Nowhere in the Act is the word "parent" defined. It is profitless to speculate on the reason for this omission. It may be said that as the rest of the Act makes it quite plain that the father of an illegitimate child cannot be a"parent", it was not necessary to define the word with more precision. But that it is not quite plain is evident from the fact that Mr Neill was able to present so attractive an argument as he did.
In the Children Act of 1948 the word "parent" is defined and that definition reads "(4) 'Parent' in relation to a child who is illegitimate, means his mother, to the exclusion of his father". But in the Adoption Act of 1950 it was apparently not thought necessary or expedient to make any definition. The ordinary sense of course in which the word "parent" is used in everyday life is to describe a father or a mother. But a word may take on a particular meaning according to the context in which it is used, and the subject-matter of the Statute in which it is used. For example, in Butler v. Gregory (1902) 18 Times Law Reports, page 370, the father of an illegitimate child had been summoned under section 23 of the Prevention of Cruelty to Children Act of 1894. He was summoned as a "parent" and one who was presumed to have the custody of the child in question. But the Divisional Court dismissed the summons on the ground that the father of an illegitimate child was not the "parent" of the child within the meaning of the section. Mr Clarke Hall (as he then was) later to be known as a great authority on the law relating to children, submitted for the Prosecution that the section must be interpreted "in a broad sense and not in a legal sense", and thereby tacitly admitted that if the section was construed in a legal sense the prosecution must fail, on the ground that the father of an illegitimate child was not the parent in the legal sense at all. The definition in the Children Act of 1948 previously quoted follows the law in Butler v. Gregory in excluding the father from the definition of "parent".
Furthermore in section 28 of the Adoption Act of 1950 reference is made to the "placing of an infant…, in the care and possession of a person who…, is not the parent or guardianor a relative of the infant ". In section 45 of the Act, which is the definition section, when "relative" is defined it is said to include (b) where the infant is illegitimate, the father of the infant…, "Guardian" is defined in section 45, "relative" is defined in the same section, but "parent" is not defined. But it seems to be clear that parent or guardian or a relative of the infant refers to three distinct persons, and if the father of an illegitimate child was a "parent" there would be no need to include him in "relative" as section 28 has done. In the fourth edition of Sir William Clarke Hall's book on children, it is said at page 433: "This Act (the Adoption Act, 1950) gives no definition of the word. Primarily 'parent' means a legitimate father or mother and does not (apart from statute) include the natural father of an illegitimate child. The mother of an illegitimate child is its parent and for the purposes of the Adoption Act is its only parent". Again, the use of the words "parent" and "guardian" and "person who is liable by virtue of any order or agreement to contribute to the maintenance of the infant" would seem to emphasise once more the fact that the father of an illegitimate child is not a "parent" because a person adjudged to be the putative father becomes a person liable to contribute to the support of the infant, and is thus in a special category.
In section 3 of the Adoption Act, 1950, which gives power to the Court to dispense with the consents required by section...
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