Court dismisses adoption application where infant's consent is mandatory and cannot be dispensed with.

[*517] 1982 June 19

(HADJIHAMBIS, AG. D.J.)

IN THE DISTRICT COURT OP LIMASSOL

In the matter of the Adoption Law,Cap. 274,

and

In the matter of Panayiota Efstathiou Elia,

Infant.

(Adoption Application No. 2/81).

Adoptions - Infant's consent - Court has no power to dispense with - Adoption Law, Cap. 274, sections 4(4), 5, and 7(1) - And adoption Rules 1954, rule 9.

A.Kourides, for the Applicants.

Y.Christou (Mrs.), guardian ad litem, Welfare Officer.

RULING

The following ruling was delivered by:-

HADJIHAMBIS. AG.D.J.: In the course 518 of this Adaption Application, a novel and interesting point, which is also of not inconsiderable significance and consequence, arose concerning the Infant’s attendance at the hearing and her consent to the proposed adoption. In particular, the Infant, who is a girl of sixteen and has been with the Applicants since she was fifteen days old, has not so far been told her true parentage and is under the belief that she is the Applicants’ natural child. The Applicants did not wish the Welfare Officer, who has been appointed guardian ad. litem of the Infant, to inform the Infant of the true position, primarily because her natural mother is an inmate at a lunatic asylum. The Infant's natural father, who has given his consent to the proposed adoption, has no communication with the Infant. Disclosure of these facts, the Applicants thought, would, at this stage, cause serious psychological problems to the Infant. Furthermore, they believe that, if the Infant were to learn, at this stage, that the Applicants are not her natural parents, the very close and happy ties between them and the Infant and the Applicants’ natural children will be adversely affected. The Welfare Officer, as guardian ad litem, took the view that it was her duty to inform the. Infant of the truth but tacitly refrained from doing so for some time as the Application was not proceeded with. When, however, the Application did come before the Court on the 6th of March, 1982, the matter could no longer be postponed and the Applicants proceeded to make the present Application, dated the 27th of March, 1982, praying for an order dispensing with the Infant’s attendance at the hearing of the Application (and, in effect, with the Infant's consent to the proposed adoption). The [*519] Application having been made ex parte, a copy of it was subsequently served upon the Welfare Officer, following the directions of the Court, and the Application was heard on the 6th of April, 1982. At the hearing, which, due to the nature of the issue, I directed to be held in camera, learned counsel for the Applicants argued that, in the light of the circumstances to which I have referred above and which were stated in the affidavit in support of the Application, the Infant's attendance at the hearing and consent to the proposed Adoption should, in the exercise of a discretion, be dispensed with.

The Welfare Officer, on the other hand, who submitted to the Court two reports dated the 13th of February, 1982 and 6th of April, 1982, took the stand that, particularly since the Infant is of an age to understand the effect of an adoption order, it is her duty to inform the Infant and that the Infant’s attendance and consent could not and should not be dispensed with.

The matter is regulated in the first instance by the Adoption Law, Cap.274, s.4(4), which provides:

"Subject to the provisions of section 5, 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 guaridan of the infant, or who is liable by virtue of any order or agree ment to contribute to the maintenace of the infant;

(b) on the application of one of two spouses, except “with the consent of the other spouse, and except with the consent of the infant."

“S. 5 above referred to provides;

" (1) The Court may dispense with any consent required [*520] by paragraph (a) of subsection (4) of section 4 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 any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld.

(2) The Court may dispense with the consent of the spouse of an applicant for an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving the consent or that the spouses have separated and are living apart and that the separation is likely to be permanent."

“I would also refer to s.7(l), which provides: The Court before making an adoption order shall be satisfied -

(a) that every person whose consent is necessary under this law, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application ismade..... "

“(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; "...."

“ ” [*521]

Further reference should be made to the Adoption Rules 1954, made in pursuance of the Adoption Law, Cap.274. Rule 9 provides:

"It shall be the duty of the guardian ad litem to investigate as fully as possible all circumstances relevant to the proposed adoption with a view to safeguarding the interests of the infant before the Court, and to make a report to the Court for that purpose; and in particular it shall be his duty –

(a) to make inquiries as to all matters alleged in the application, and as to the additional matters ” specified in Appendix B to these Rules, and to report to the Court upon them; which includes whether the Infant's parents consent to the proposed adoption and whether the infant, if of an age to understand the effect of an adoption order, wishes the order to be made ...

(c) to satisfy himself, within twenty-one days of the serviceof the originating application on him, whether the infant is, or is not, of an age to understand the effect of an adoption order, and, if he is satisfied 1 that he is, -

(i) to notify the Court forthwith that the infant is in his opinion of such an age;

(ii) to find out whether the infant has been informed of the application and of the said affect, and, if he has not been so informed, to inform him thereof; .... [*522]

Rule 15 provides:

"Where the Court is notified by the guardian ad litem under

paragraph (c) of Rule 9 of these Rules that the infant is in his opinion of an age to understand the effect of an adoption order, the Registrar shall serve 0x1

the applicant a notice in Form 5. ,to the effect that no adoption order can be made unless the “Infant is presented at the hearing. "

Lastly, Rule 16 provides:

"Subject to Rule 17 which provides for dispensing with the personal attendance of one of joint applicants in certain circumstances, the Court shall not make an adoption order or an interim order except after the personal attendance before the Court of the applicant , the infant (unless in the opinion of the Court he is not of an age to understand the effect of the adoption order) and the guardian ad litem; ...."

My researches and those of learned counsel have not disclosed any authorities dealing with the matter in hand. In. England it would appear from the relevant adoption legislation, and particularly the Adoption Act 1958, the provisions of which are almost identical to those of our statute in this respect, that the Infant’s attendance and consent is not necessary. S.4(1) of the I958 Act, which deals with consents (the equivalent of our s.4(4)), provides only that an adoption order shall not be made in Scotland in respect of an Infant who is a minor "except with the consent of the infant". However, s.7(1) of the 1958 Act, which deals with the functions of the Court (the equivalent of our s.7(l)), does, like its Cyprus counterpart, require that, in determining whether the adoption order will be for the welfare of the [*523] Infant, due consideration shall be given to the wishes of the infant, having regard to his age and understanding - Re G. (T.J.) (an infant) (1963)1 All E.R. 20.

When I turn to consider the question before me in terms of the applicable Law and Rules, I find myself confronted with what appears to be a clear statutory regulation of it. On the face of it, s.4(4) provides in unqualified and unmistakeable language that "Subject to the provisions of s.5, an adoption order shall not be made ... except with the consent of the infant”. In itself, and subject to the provisions of s.5, I do not see how this can be read otherwise than as requring the Infant’s consent to the proposed adoption, so that the Infant's consent in the instant case is a necessary pre-condition of the Order.

Indeed, I would go as far as to say that the effect of the section seems to be that the Infant's consent is required even in cases in which the Infant is not of an age to understand the nature of adoption and consent to it, for the provision is categorical ("an adoption order shall not be made") and absolute ("except with the consent of the infant") in its import, and there is nothing to suggest that it should be read qualified with the words "unless the infant is not of an age to understand the nature of adoption and consent to it". The consequence of such a construction would, of course, be (though this situation does not arise in the instant case) that no adoption order can be made unless and until the Infant is of an age to understand the nature of adoption and consent to it, which would greatly upset the existing practice of adoption orders being made in respect of very young infants.

This, however, is not, to my mind, a sufficient reason for rejecting a construction which would otherwise appear [*524] to be proper. And though I would, if possible, be very careful before I adopt a construction which would question a wideand long-established practice believed to be correct, I would observe that in the instant case the language of the statute is so clear that it really leaves no room for any other construction. Indeed, when I look at the matter in a wider perspective, I tend to believe that, far from being unreasonable, such a result is highly understandable.

The effect of an adoption being to put an end to the Infant's rights and obligations in relation to his natural parents and to create new rights and obligations in relation to his adopting parents, I would not be surprised if the law were to require in all cases the Infant’s consent to such a drastic and far-reaching step which fundamentally affects his person, his status and his legal relations for the rest of his life. In fact, seeing that our law is in many ways closer to continental law than English law as regards personal relations and matters of status and legal rights and obligations referring thereto (I mention as one example the children’s right to a statutory portion upon succession), I can see the reason why in this respect our lav/ should differ from English law and why the English 1958 Act limits the requirement of the Infant's consent to Scotland, Scottish law and notions being derived from the continent.

Furthermore, and without going into the matter, I should indicate the constitutional implications of an adoption, particularly in the context of Article 15 of the Constitution, which guarantees a personas rights in relation to his private and family life, in order to point out that an adoption order without the Infant's consent might not easily be reconsliable with it. [*525]

My view of the above construction of s.4(4) is strengthened. upon a consideration of s.5, which provides for the circumstances in which the Court may dispense with any of the consents required by s.4(4). S.5, though, providing for dispensing with the consent of every other person whose consent is required by s.4(4), makes no reference whatsoever to dispensing with the Infant’s consent even in cases in which the Infant is not of an age to understand the nature of adoption and consent to it, which I read as meaning that the Court has no power to dispense with the Infant's consent at all in any case. I find no merit in the argument of learned counsel for the Applicants to the effect that the Court has an inherent jurisdiction to dispense with the Infant's consent, for I believe that the Court’s jurisdiction to dispense with any of the consents required stems from and is regulated strictly by the statute itself. To the extent that the Court's jurisdiction in this respect is limited by s.5, and s.5 uniquely refrains from giving any jurisdiction to the Court to dispense with the Infant's consent as it does in relation to the other consents, I find it impossible to read the section otherwise than as excluding any jurisdiction in the Court to dispense with the Infant's consent even, I would say, in cases in which the Infant is not of an age to understand the nature of adoption and consent to it; all the more so, in cases in which the Infant is of such an age, as in the instant case. This, to my mind, is in accord with my reading of s.4(4) to the effect that the Infant's consent is always a necessary prerequisite to the making of an adoption order.

This construct ion is, I believe, further consistent [*526] with s.7(1). S.7(1) (a) requires that the Court, before making an adoption order, be satisfied that every person whose consent is necessary and has not been dispensed with under the law understands the nature and effect of the proposed adoption and consents to it. In so far as the Infant’s consent is a consent necessary and indispensable under the Law, I cannot avoid the

conclusion that, before I make an adoption order, I have to be satisfied that the Infant understands the nature and effect of the proposed adoption and consents to it. This is in no way affected by s.7(l)(b) which requires that the Court, in deciding whether the order will be for the welfare of the Infant, shall give due consideration to the wishes of the Infant, having regard to his age and understanding. I do not read s.7(1)(b) as in any way implying that the Infant' s . consent to the proposed adoption need only be given when his age and understanding so allow. The regard to the Infant’s age and understanding in relation to the Infant's wishes here is not for the purposes of consent but for the purposes of the requirement that the adoption will be for the welfare, of the Infant, the two being distinct question. This is also shown by the. fact that the provision of s.7(l) as to the Infant's wishes, having regard to his age and understanding, in relation to the Infant’s welfare also appears in the English statute (s.7(l)), though under the English statute the Infant’s consent to the proposed adoption is not necessary. Thus, there is no inconsistency in requiring that, regardless of the Infant's age, no adoption order can be made unless and until the Infant consents to it, and, at the same time, that, assuming that the Infant consents to it, regard shall be had to his age and understanding ih relation to his wishes in determining whether [*527] the proposed adoption will be for his welfare. In other words, the requirement that the proposed adoption will he for the Infant's welfare is distinct from and additional to the requirement of the Infant's consent.

It is in this light that I would look upon the Rules. It is true that Rules 9, 15 and 16, which I have cited, seem to refer to the Infant’s wishes and attendance in so far as the Infant is

of an age to understand the nature and effect of adoption, but I do not believe that they have the effect of excluding the

need for the Infant’s consent to be given. In the first place, the Rules were made in pursuance of the Law and, consequently, must be within the limits provided by the Law. In so far, therefore, as the Infant's consent is necessary and indispensable under the Law, such consent cannot be made any less necessary or indispensable under the Rules. Nor do I believe that the Rules were intended to go beyond the limits of the Law. It seems to me that the provisions of the Rules as to the Infant’s wishes and attendance to the extent of his age and understanding are aimed simply at regulating the establishment of the Infant's wishes when, of course, the Infant is of an age to understand the nature of adoption, for the purposes of the Law, including the question whether the Infant does in fact consent to the proposed adoption and the question whether the proposed adoption will be for the welfare of the Infant. I do not read the Rules as in any way qualifying the very requirements of the Law to which they are supposed to give effect.

Although I have gone into the question at some length, I prefer not to rest my judgment primarily on the ground that the Infant's attendance and consent are necessary and indispensable in every case, for there is another narrower ground in the [*528] instant case upon which I reach the same result that the Infant’s attendance and consent cannot be dispensed with. In so far as the Infant is of an age to understand the nature and effect of the proposed adoption, I do not see how I can hold otherwise than that the proposed adoption cannot proceed without the Infant’s attendance and consent. Even if the Infant's attendance and consent could be dispensed with when the Infant is not of an age to understand the nature and effect of the proposed adoption, no such question arises, I believe, when the Infant, as in the instant case, is of such an age. S.7(l)(a) requires that, before I make an adoption order, I should be satisfied that every person whose consent is necessary and is not dispensed with consents to and understands the nature and effect of the proposed adoption. Since the Infant here is of an age that she can understand the nature and effect of the proposed adoption, it is my duty to be satisfied that she does so understand and consent thereto. Furthermore, s.7(l)(b) expressly requires that, in deciding whether the proposed adoption will be for the welfare of the Infant, I should give due consideration to the wishes of the Infant, having regard to her age and understating. Again, I do not see how I can avoid this requirement, having regard to the Infant’s age in the instant case, for, at the age of sixteen, I should give particular consideration to the Infant's wishes. Nor do I believe that, as learned counsel for the Applicants has argued, I can use the fact that the Infant seems to be happy with the Applicants as a substitute for the Infant’s wishes in the matter, or assume that the Infant, if asked, would have consented to the proposed adoption. Ex

hypothesi, the Infant's wishes and consent cannot be established unless 529 and until the Infant knows of the proposed adoption.

A consideration of the Rules serves only to strengthen this view. Under Rule 9, it is the duty of the guardian ad litem, with a view to safeguarding the interests of the Infant before the Court, to make inquiries and report to the Court, inter alia, whether the Infant is of an age to understand the effect of an adoption order and, if so, to inform the Court accordingly, whether the Infant has been informed of the proposed adoption and, if not, to inform him thereof, and whether the Infant, if of an age to understand the effect of an adoption order, wishes it to be made. Rule 15 requires that, upon being notified by. the guardian ad litem that the Infant is of an age to understand the effect of an adoption order, the Registrar shall serve on the Applicants a notice to the effect that no adoption order can be made unless the Infant is presented at the hearing. And Rule 16 requires me not to make an adoption order except after the personal attendance of the Infant, save when the Infant is, in my opinion, not of an age to understand the effect of an adoption order. It is noteworthy that the English Rules differ from our Rules in this respect for there the Court can dispense with the Infant’s personal attendance when there are special circumstances making the Infant's attendance necessary (Rule 13).

There is, to my mind, nothing in the Law or in the Rules which allows me to dispense with the Infant's attendance at the hearing and consent to the proposed adoption on the facts of the instant case, and I so rule. The Application is dismissed. As to costs, I make no order.

Application dismissed with no order as to costs.