Supreme Court remands adoption case to District Court to prove father unfindable rather than proving death.
Cipro (CY)
Sintesi Legislator
Generato dall'IAThe Supreme Court of Cyprus remanded the adoption case to the District Court of Famagusta for further proceedings. The appellants sought to dispense with the father's consent because his whereabouts were unknown since 1967, but the lower court refused the order, mistakenly requiring proof of his death. The appellate court clarified that the law only mandates proving the person cannot be found, not that they are dead, and ordered the case returned to gather evidence on the father's unfindability.
Regesto Legislator
Generato dall'IASections 4(4)(a) and 5(1)(c) of the Adoption Law Cap. 274; consent to adoption may be dispensed with where the person whose consent is required cannot be found, without necessity to establish their death.
Parole chiave
Generato dall'IADisposizioni normative citate
Generato dall'IADecisioni correlate
Generato dall'IATesto completo
[*262] 1969 December 4
(VASSILIADES, P., TRIANTAFYLLIDES, LOIZOU, JJ. )
APPELLATE JURISDTCTION
In the matter of the Adoption Law, Cap. 274,
and
In the matter of Kyriacoulla Adamou HjiGeorghiou,
an infant,
and
Xenis Anastassi Onisiforou and another,
Appellants-Applicants.
(Civil Appeal No. 4805).
Adoption - Adoption order Consent to adoption order - Dispensing with consent - Whereabouts of person whose consent required unknown - Not necessary to establish in law his death; but to establish that he cannot be found
- Matter governed by the combined effect of sections 4(4) (a) and 5(1)(c) of the Adoption Law Cap. 274.
P. Eleftheriou, for the Appellants.
Appellant No. 1 present.
The mother of the infant present.
JUDGMENT
VASSILIADES. P. ; The judgment of the Court will be delivered by Mr. Justice Triantafyllides.
TRIANTAFYLLIDES, J.: In this case the appellants appeal against the refusal of the learned President [*263] of the District Court Famagusta to make an adoption order under the provisions of the Adoption of Children Law, Cap. 274.
The whereabouts of the father of the infant, in respect of whom the adoption order was applied for, have been unknown since March 1967; and on the 13th March, 1969, when the matter came up before the Court below at Famagusta, counsel for the appellants had available two witnesses who were expected to give evidence establishing that the father could not be found.
It seems, unfortunately, that both the Court and counsel for the appellants were, at the time, under the impression that there was required evidence establishing in law the death of the father of the infant; and as such evidence was not, indeed, available the adoption order was refused.
In our view the matter is governed by the combined effect of sections 4(4)(a) and 5(1)(c) of Cap. 274; as a result a consent to the adoption order, which is required under section 4(4)(a), can be dispensed with by virtue of section 5(l)(c) "in any case, that the person whose consent is required cannot be found....."
That was the proper legal basis on which the matter should have been dealt with, viz. whether or not there was evidence to satisfy the Famagusta Court that the father of the child could not be found, so that his con sent to the adoption order might be dispensed with. [*264]
In the circumstances we think that the proper order to be made by us is that the case be sent back to the Court below so that it may hear such evidence as the appellants may wish to put before it in order to satisfy it - if they manage to do so - that the father of the child cannot be found; then such Court may, in the proper exercise of its powers under section 5(l)(c), dispense with the father’s consent.
Order accordingly.