Re D. (Minors) (Adoption by Parent)

High Court (Family Division) 
3^rd, 30^th July 1973

Divisional Court

Before (the judges sitting on the bench)

• Sir George Baker , President of the Family Division
• Mr Justice Hollings

Counsel (the barristers representing the parties)

• Stuart Standish Stevens for the father (the Appellant and original Respondent).
• Andre de Moller for the mother (the Respondent and original Applicant).

Judgment (given on 30^th July)

Sir George Baker P. —

This is an appeal by the father of two little girls, Helen, born 18^th September, 1964, and Hazel, born 19^th August, 1965, against adoption orders made on 4^th October, 1972, in the juvenile court by the justices authorising the adoption of the infants by their mother and her husband.  The girls were born during the mother’s previous marriage to the father.  The mother has now married again.  We have already granted the father leave to appeal out of time.

As the father refused to consent to the adoptions, the mother and her husband in their applications for adoption orders requested the court to dispense with his consent on the ground that, in the case of Hazel, “he has consistently (sic) failed to discharge the duties and obligations of a parent”; and, in the case of Helen, “that he has consistently failed without reason or cause to discharge the obligations of a parent.”  Section 4(1) of the Adoption Act 1958 provides:

“Subject to section 5 of this Act, an adoption order shall not be made — (a) in any case, except with the consent of every person who is a parent or guardian of the infant; …”

Section 5(2) provides:

“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 subsection (1) of this section.”

In their reasons the justices say:

“(1) We found that [the father] had failed without reasonable cause to discharge the obligations of a parent, that he had not maintained his children financially, had not shown care, interest and affection towards them.”

It is to be noted that the applications both use the words “consistently failed,” and the justices in the above quoted finding omit the word “persistently,” nor do they expressly say therein that they have dispensed with the father’s consent.  The justices go on, however, to say:

“… the evidence pointed to a long period when [the father] had abandoned his financial responsibilities towards the children,” and “visits by [the father] to the children were spasmodic and at long intervals … and there was little evidence of interest or affection shown by him to the children …”

At the end of the “copy notes of evidence” the chairman is recorded as having said:

“The court finds that the father has persistently failed without reasonable cause to discharge the obligations of a parent and therefore dispenses with his consent.”

It seems to me at least possible to infer from this statement and their reasons that the justices were under the impression that once they found that the father had failed (and I shall assume here that this meant persistently failed) without reasonable cause to discharge the obligations of a parent, that was the end of the matter, and they were bound to grant the applications for adoption, without going on to consider whether they should exercise their discretion  and dispense with his consent.

Before us, however, the appeal has been argued on the basis that the evidence did not justify a finding that the father had persistently failed to discharge the obligations of a parent; and, or alternatively, that the justices ought not to have exercised their discretion to dispense with his consent, such discretion being one which should always be used judicially and sparingly, and which should not have been exercised in the circumstances of the present case.

In considering the facts which were established before the justices it is vital to bear in mind that they said:

“[The father] and his two witnesses were not convincing or impressive and their statements were not substantiated.  Where the evidence of [the mother] and [the father] conflicted we preferred the evidence of [the mother] to that of [the father].”

The history of the parties is that they married on 19^th October, 1963 (this date is taken from the marriage certificate).  They lived for a time in Oxfordshire, where the children were born, and finally in a council flat in a London suburb.  In August 1969 the father left the mother to go to live with another woman, giving her sufficient money to last till 12^th September, 1969.  He took the children out twice between leaving and 12^th September, 1969.  Thereafter the wife had to live on social security as the husband was refusing to maintain her, but he sent presents to the children at Christmas.  He did not see the children again in 1969, but he saw them eight to 10 times at irregular intervals in 1970 up to September, either outside the school or outside the flat, and had tea with them, although he twice failed to collect them when he had promised on Sunday mornings.  He refused to make arrangements for access through a solicitor.  On 1^st April, 1970, the wife filed a petition on the ground of the husband’s adultery between September and November 1969, claiming custody and maintenance.  In his acknowledgment of service, dated 12^th May, 1970, the father recorded that he did not want to be heard on any of the issues.  In her petition the mother’s proposals for the children were that they should continue to reside with her and receive the ordinary education provided by the local education authority, and be maintained by the father out of such sums as he might be ordered to pay from time to time.  At the hearing on 18^th September, 1970, the judge expressed satisfaction with the arrangements for the children, whose custody he gave to the mother.  Nothing was said about access, and the usual order was made permitting the children to be removed from the jurisdiction with the written consent of the other parent.  An application for maintenance which had been adjourned to chambers came before the registrar on 17^th December, 1970, but was adjourned for the father to file an affidavit of means.  On 23^rd December, 1970, the decree was made absolute.

The last occasion on which the father saw the children was on the day of the hearing, 18^th September, 1970, when he took the children out.  Although the mother said twice in her evidence that she did not see the father after September, she also referred to an occasion in November or December 1970, when he turned up late at night, having been drinking, and wanted to see the children.  Not surprisingly, she refused.  He sent £ 5 for each child on birthdays, and Easter eggs and clothes at Easter 1971.

The mother remarried on 29^th September, 1971, and with her husband moved about the same time to their present address.  On enrolment at their new school there, the children’s names were changed to the mother’s new surname.  The father then discovered that the London flat was empty.  He made inquiries to find his children, and ultimately traced them to the town where, having found out about the changes of name, he arrived in the same month, October 1971.  The mother refused to allow him to see the children, and told him he could not see them again.  On 20^th May, 1972, the father, who said the solicitor he employed had given up practice, wrote personally to the mother and her husband, saying he wanted access to his children, and that they ought to be known by their legal name.  Further correspondence ensued, from which it is clear that he was strongly opposed to adoption.

If, therefore, one accepts everything that the mother says, and disregards everything that the father says, whether or not it conflicts with the mother’s evidence, the position is that he had failed, apart from sending Christmas and Easter presents and some clothes, to provide for the children from September 1969, and he did not see them between September 1970 and October 1971, when he was refused all access.  The mother says that after the decree nisi in September 1970 she did not know his address.  On these facts, can it he said that the father has persistently failed to discharge the obligations of a parent?  I do not think so.

I leave aside the question of reasonable cause, for the father was disbelieved when he said he had paid money to the mother between September 1970 and September 1971, and that he had visited or seen the children during that period.  It follows, I think, that if there was persistent failure to discharge the obligations of a parent, there was no reasonable cause advanced for such failure.

The final paragraph of the report of the guardian ad litem reads: “(7) The object of the application is to give the surname of the marriage to the infants.  This would appear to be in their best interests.”  Section 7(1) of the Adoption Act 1958 provides: “The court before making an adoption order shall be satisfied … (b) that the order if made will be for the welfare of the infant …”  The final paragraph of the justices’ reasons reads: “(5) It appeared to us to be in the best interests of the children that they should be adopted by [the mother and her husband].”  Section 5(2) of the Adoption Act 1958 replaced, and is much wider than, section 3(1) of the Adoption Act 1950.  Pennycuick J. in In re P. (Infants) [1962] 1 W.L.R. 1296, 1302 said:

“… ‘obligations of a parent’ must include first the natural and moral duty of a parent to show affection, care and interest towards his child; and second, as well, the common law or statutory duty of a parent to maintain his child in the financial or economic sense.”

Whether a father has persistently failed to discharge the obligations is, of course, a question of fact and degree, but any court which has the task of deciding this issue must keep firmly in mind that “An adoption order is an order of the most serious description”: per Lord Goddard C.J. in Hitchcock v W.B. and F.E.B. [1952] 2 Q.B. 561, 568, and that the failure envisaged by the subsection must be of such gravity, so complete, so convincingly proved, that there can be no advantage to the child in keeping continuous contact with the natural parent, who has so abrogated his duties that he for his part should be deprived of his own child against his wishes.

It is not helpful to attempt to give a meaning to the adverb “persistently” by reference to its use in other statutes: e.g., “persistently importuning” or to “persistent cruelty.”  A black eye in each of two consecutive weeks might well justify a finding of persistent cruelty; but a father who failed to send two weekly instalments of child maintenance could never be said to have persistently failed to discharge his obligations as a parent.  I think that in the subsection the word is to be understood in the sense (see Shorter Oxford English Dictionary) of “permanently,” which is consistent with the few reported decisions.  In In re G. (T.J.) (an Infant) [1963] 2 Q.B. 73, where an adoption order was refused, Donovan L.J. said, at p. 95:

“The natural mother has not bothered about her child one iota for the last eight years.  The judge found her guilty of neglect when the child was a baby, and of persistent failure to perform her duties as a parent since.”

And in In re B. (S.) (an Infant) [1968] Ch. 204, 214 Goff J. referred to the father of a little girl of about six as having “washed his hands of her,” and that his behaviour was “symptomatic of complete neglect.”

It is also, I think, clear from the authorities that the failure must be culpable and culpable to a high degree.  In In re M. (an Infant), 28^th June, 1965, Bar Library Transcript N^o 163C, briefly reported in (1965) 109 S.J. 574, the court was not satisfied that a mother had persistently failed to discharge the obligations of a parent.  Lord Denning M.R. said, at p. 4:

“As Diplock L.J. said in one case, those words indicate that there must be some callous or self-indulgent indifference with regard to the welfare of the child.”

This test was rejected by Lord Hailsham L.C. in In re W. (an Infant) [1971] A.C. 682, 698, but only in respect of section 5(1)(b) of the Adoption Act 1958, for he said:

“As the last words in subsection (2) make quite clear, the tests in section 5(1)(b) are quite independent of the test in section 5(2), on which counsel had to some extent plainly modelled his submission.”

In construing section 5(2) of the Act of 1958 the test of culpability is binding on this court.

In any event, the facts in the present case fall far short of what seems to me to be the starting line for consideration of whether the father has persistently failed to discharge his parental obligations.  In all too many cases there is a temporary drifting apart and a withdrawal by the husband father, when a marriage is breaking up, especially when he has another woman to keep (the father has now remarried and has two children); but that does not mean that the mother can change the children’s names on or before remarriage and then adopt them.  Often the temporary difficulties are resolved and the bitterness dies down after the divorce, when an order for maintenance of the children has been made and access settled.  The mother says her solicitor had been given two or three addresses, but the father could not be traced.  That cannot have been for more than nine months and is surprising, as he had worked locally and had relations who lived in the district.  But, even so, it was he who in the end had to find the mother, and who searched for her in order to see his children.  There was no permanence in his failure; he arrived at her new home wanting access, and was bitterly opposed, as almost invariably happens, to the changes of name without his knowledge and consent, and to adoption.  He never abrogated his duties by washing his hands of the children.  They were not complete strangers to him, as were the children aged six and four to the father in In re P. (Infants) [1962] 1 W.L.R. 1296, and the child in In re B. (S.) (an Infant) [1968] Ch. 204 (Goff J.).  He was their father whom they had lived with for four and five years of their respective lives, and were seeing for a further year.  The fact, if it be a fact, that they asked to have their names changed which should never be done unilaterally unless special reasons are shown: see Practice Direction (Deed Poll: Minors) [1969] 1 W.L.R. 1330 and Y. v Y. (Child: Surname) [1973] Fam. 147 — and that they had accepted their step-father as their father, as the mother said, are not matters of any serious weight when considering the adoption of little girls of eight and seven.  The welfare of the children, while not the first or sole deciding factor, is nonetheless a requisite consideration: see section 7(1)(b) of the Adoption Act 1958.  In In re Adoption Application 41/61 (N^o 2) [1964] Ch. 48, 53, Wilberforce J. said in a pasage cited with approval by Lord MacDermott in J. v C. [1970] A.C. 668, 713:

“… it would seem to me that the court must take into account all the merits and demerits of the alternative proposals as they seem likely to bear upon the child’s welfare: not limiting itself to purely material factors, but considering, as they may bear upon the welfare of the infant, such matters as the natural ties of blood and family relationship.  The tie (if such is shown to exist) between the child and his natural father (or any other relative) may properly be regarded in this connection, not on the basis that the person concerned has a claim which he has a right to have satisfied, but, if at all, and to the extent that, the conclusion can be drawn that the child will benefit from the recognition of this tie.”

I am at a loss to see how the court could be satisfied that these adoption orders would be for the welfare of the infants, when the expressed object was to give them the mother’s new surname.  In her evidence she said she “explained to the headmaster I had just remarried and could they be called [the] same as me …  I thought this was best.”  All too often this is the course taken by the mother to disguise from her new neighbours on re-marriage that she has been involved in a failed marriage; it cannot by itself be a legitimate ground for adoption, or generally in the interest of the children.  It is perhaps pertinent to remember that the report of the Departmental Committee on the Adoption of Children (October 1972, Cmnd. 5107) (the Houghton Report), after referring to the increase in adoptions of legitimate children on the remarriage of a parent, expressed the view that the legal extinguishment by adoption of the child’s links with one half of its own family was inappropriate and could be damaging, and that, while the law should not prohibit adoption by step-parents, guardianship would be more appropriate in most cases.

While I think adoption is inappropriate in cases like the present the rock on which these applications must founder is that the evidence falls far short of even beginning to establish that the father persistently failed to discharge his obligations as a father, and the appeals must be allowed.

Mr Justice Hollings —

I agree, though I would like to add a few words about the meaning of “persistently” in section 5(2) of the Adoption Act 1958.  I do not think that there is a true synonym, and I consider that any attempt at definition tends to detract from the inherent meaning of this particular adverb.  But when, as here, the father has, over a number of years during cohabitation and the lifetime of the children apparently discharged his parental obligations and the failure relied on occurs substantially during the period covering cessation of cohabitation and the divorce of the parties, the father thereafter seeking renewed contact with his children, such failure may be properly described as temporary; it has not the quality of permanence or rather, apparent permanence, which is suggested by the word “persistent.”

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Orders of the court

Appeals allowed.
No order for costs.