Rogers v Kuzmicz

This is an appeal by Mrs Eva Florence Kuzmicz, the mother of a male infant born on the 26th March, 1950, and, therefore, now a little over 2 ½ years old, from an Interim Order under section 6 of the Adoption Act, 1950, madeby His Honour Judge Willes in the Dorby and Long Eaton County Court, and dated the 29th. May, 1952, upon an application under the Act by the Respondent spouses, Mr. and Mrs Rogers, for an adoption order authorising them to adopt the infant.

The mother on the 1st. March, 1952, duly signed before a Justice of the Peace the proscribed statutory form of consent to the proposed adoption, but withdrew such consent on the 28th. April, 1952, and was represented at the hearing by a solicitor (Miss Booth) who opposed the application on her behalf.

For the reasons stated in his careful reserved Judgment, which appears to have been delivered on the 14th June, 1952, the learned Judge nevertheless held that in the circumstances of the case an adoption order could and should be made without the mother's consent, inasmuch as he was satisfied that her consent was unreasonably withheld within the meaning of the Act, and accordingly ought in the exercise of his discretion to dispense with such consent, the case being in all other respects a proper one for such order. The order actually made was, as mentioned above, not a full adoption order but an interim order under section 6 of the Act; and its effect was merely to give the custody of the infant to the present Respondents for a probationary period of three months. As may be seen from his Judgment, the learned Judge made his Order in this limited form in deference to the possibility, or probability, of the present appeal, and not on account of any doubt as to the suitability of the proposed adopters. That being so, and having regard to the terms of subsection (2) of section 6 of the Act, the considerations bearing upon the result of this appeal would seem to be precisely the same as they would have been if the order under appeal had been a full adoption order.

The appeal raises (in effect) two questions, the second of which need, strictly speaking, only be determined if the learned Judge is held to have been right on the first. The two questions are:- (i) Whether having regard to the relevant provisions of the Act of 1950 the facts found by the learnedJudge afforded any evidence capable in law of satisfying him that the mother's consent was unreasonably withheld, so as to empower him, if so satisfied, to dispense with such consent in the exercise of his discretion; (ii) if so, whether the proceedings before the learned Judge were defective owing to the circumstance that the mother, who was born on the 5th. August, 1931, and thus throughout those proceedings herself an infant, was not provided with a guardian ad litem?

Before going further into the facts, we may conveniently refer to some of the provisions of the Act of 1950, the Adoption Act, 1950, section 1 (1): "Subject to the provisions of this Act, the court may, upon an application made in the prescribed manner by a person domiciled in England or Scotland, make an order (in this Act referred to as an adoption order) authorising the applicant to adopt an infant. (2) An adoption order may be made on the application of two spouses authorising them jointly to adopt an infant", Section 2 (4): "Subject to the provisions of section three of this Act, an adoption order shall not be made (a) in any case, except with the consent of every person or body 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; (b) on the application of one of two spouses, except with the consent of the other spouse". Subsection (6) of section 2, paragraph (a): "An adoption order shall not be made in respect of any infant unless (a) the infant has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order". Section 3 (1): "The Court may dispense with any consent required by paragraph (a) of subsection (4) of section two of this Act if it is satisfied (a) in the case of a parent or guardian of the infant, that he has abandoned, neglected or persistently ill-treated the infant; (b) in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the infant, that he has persistently neglected or refused so to contribute; (c) in anycase, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld". Section 3 (3): "The consent of any person to the making of an adoption order in pursuance of an application (not being the consent of the infant) may be given (either unconditionally or subject to conditions with respect to the religious persuasion in which the infant is to be brought up) without knowing the identity of the applicant for the order; and where consent so given by any person is subsequently withdrawn on the ground only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this section to be unreasonably withheld". Subsection (4): "While an application for an adoption order in respect of an infant is pending in any court, any parent or guardian of the infant who has signified his consent to the making of an adoption order in pursuance of the application shall not be entitled, except with the leave of the court, to remove the infant from the care and possession of the applicant; and in considering whether to grant or refuse such leave the court shall have regard to the welfare of the infant". Section 4: "(1) Where any person whose consent to the making of an adoption order is required by paragraph (a) of subsection (4) of section two of this Act does not attend in the proceedings for the purpose of giving it, then, subject to the provisions of subsection (3) of this section, a document signifying his consent to the making of such an order shall, if the person in whose favour the order is to be made is named in the document or (where the identity of that person is not known to the consenting party) is distinguished therein in the prescribed manner, be admissible as evidence of that consent, whether the document is executed before or after the commencement of the proceedings". Section 4 (2): "Where any such document is attested by a justice of the peace (or, if executed outside the United Kingdom, by a person of any such class as may be prescribed), the document shall be admissible as aforesaid without further proof of the signature of the person by whom it is executed; andfor the purposes of this subsection, a document purporting to be attested as aforesaid shall be deemed to be so attested, and to be executed and attested on the date and at the place specified therein, unless the contrary is proved". Subsection (3): "A document signifying the consent of the mother of an infant shall not be admissible under this section unless (a) the infant is at least six weeks old on the date of the execution of the document; and (b) the document is attested on that date by a justice of the peace or, as the case may be, by a person of a class prescribed for the purposes of subsection (2) of this section". Section 5 (1): "The court before making an adoption order shall be satisfied (a) that every person whose consent in 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", and (b): "that the order if made will be for the welfare of the infant, due consideration being for this purpose given to the wishes of the infant, having regard to the age and understanding of the infant". Section 6 (1): "Subject to the provisions of this section, the court may, upon any application for an adoption order, postpone the determination of the application and make an interim order giving the custody of the infant to the applicant for a period not exceeding two year by way of a probationary period upon such terms as regards provision for the maintenance and education and supervision of the welfare of the infant and otherwise as the court may think fit". Subsection (2): "All such consents as are required to an adoption order shall be necessary to an interim order but subject to a like power on the part of the court to dispense with any such consent". Subsection (3): "An interim order shall not be made in any case where the making of an adoption order would be unlawful by virtue of subsection (6) of section two of this Act, (4) An interim order shall not be deemed to be an adoption orderwithin the meaning of this Act." Section 10 (1), which I think is the last section to which I need refer: "Upon an adoption order being made, all rights, duties, obligations and liabilities of the parents or guardians of the infant in relation to the future custody, maintenance...