Scottish Court of Session Decisions

LORD PRESIDENT (Clyde).—This is an appeal from the Sheriff Court in a petition under the Adoption Act, 1958. The petitioners are the grandparents of the child, who is a girl. The child's mother died when the child was only three months old. The father, who has never done anything to support or take an interest in the child, has now remarried and has another family of his own, and, in the present case, has granted the necessary consent required by the Act to the adoption taking place. The case is obviously one, as indeed the Sheriff-substitute concluded, where on its merits it would be appropriate that an adoption order should be pronounced. But there is one difficulty, and it is that difficulty which has induced the Sheriff-substitute to refuse the application. It is to try and overcome that difficulty that the petitioners have presented their present appeal.

The difficulty arises in these circumstances. The girl is thirteen. She has signed, with a mark, the necessary form of consent, but appended to it is a certificate by a medical man that the child is mentally retarded and not able to understand the circumstances of adoption or sign a form of consent. The form of consent was submitted to her after she had attained the age of thirteen.

Under section 4 (1) of the Adoption Act, 1958, it is provided, inter alia, 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. Section 5 of the Act gives the court power, in certain circumstances, to dispense with consents, but this dispensing power does not cover the case of an infant who is a minor and therefore is of no materiality in the present case. We are accordingly faced with a direct prohibition in the statute against the granting of an adoption order unless the minor's consent is obtained. In the circumstances this unfortunately cannot be obtained in the present case. The court has no power to amend an Act of Parliament and, rightly or wrongly, Parliament has, in this case, made it an express provision of the granting of an adoption order in the case of a minor in Scotland that the minor should consent. Mr Shiach has presented a number of attractive methods by which we could get round these statutory provisions, but I am satisfied that, in the case of an interpretation of a provision so clear as this, it is not possible for the court to disregard what Parliament has expressly provided.

In these circumstances, although with reluctance, I see no alternative to affirming the conclusion to which the Sheriff-substitute, with equal reluctance, has come.

LORD GUTHRIE .—I share your Lordship's regret at the necessity for refusing this appeal, but I am of opinion that the Sheriff-substitute's decision is correct, and that the reasons which he gave for it are sound.

Mr Shiach, in his excellent and forceful argument, submitted that the general purpose of the Adoption Act, 1958, as shown by the provisions of section 1 (1) and the interpretation of "infant" in section 57, was that the court was empowered to grant an application for an adoption order relating to a person under twenty-one years of age who is unmarried. He argued that the court should give effect to that general intention by reading into the terms of section 4 (1), which provides, inter alia, that an adoption order shall not be made in Scotland land in respect of an infant who is a minor except with the consent of the infant, a qualifying phrase, viz., "where the minor is capable of giving consent." He sought to derive support from the terms of section 7 (1), which require the court, before making an adoption order, to be satisfied that the necessary consents have been given. He maintained that that section implied that the persons referred to were capable of giving consent. Accordingly he submitted that, as the girl who is the subject of the present application is a minor, and is, by reason of her mental state, incapable of giving her consent, the application should be granted without her consent.

In my opinion, however, the statutory provisions do not enable us to give effect to that argument. Section 4 (1) is peremptory in its terms. It lays down 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. Section 5 (1) provides that the court may dispense with some of the consents required by section 4 (1) in certain circumstances, one of which is, if the person whose consent is to be dispensed with is incapable of giving his consent. But that power to dispense with consents does not apply to the consent of the minor referred to in section 4 (1). Therefore to construe section 4 (1) as if it included a qualifying phrase in the terms desired by Mr Shiach would be illegitimate, since it would be contradictory both of section 4 (1) and of section 5 (1). Section 7 (1), far from supporting Mr Shiach's argument, is, I think, fatal to it. In as much as it is applicable to the present question, section 7 (1) enacts that the court, before making an adoption order, shall be satisfied that every person whose consent is necessary under the 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. The section requires us to ask and to answer four questions in relation to the girl who is the subject of the present application. First, is the girl's consent necessary under the Act ? The answer to that question is "Yes," in accordance with the terms of section 4 (1). The second question is:

"Has the girl's consent been dispensed with ?"

The answer to that question is "No," because the court is not given power to dispense with that consent under section 5 (1). The third question is: Has the girl given her consent to the adoption order ? The answer is "No," because she is incapable of giving her consent. The fourth question is:

"Does the girl understand the nature and effect of the adoption order for which application is made ?"

Again the answer is "No," because we have a medical certificate stating that the child is incapable of understanding it. In these circumstances the court cannot be satisfied as required by section 7 (1) before making an adoption order, and therefore the order applied for cannot be made. For these reasons I would refuse the appeal.

LORD MIGDALE .—I share in the general regret that the Sheriff-substitute felt compelled to arrive at the conclusion he did, but I think that he took the only course open to him, and I also agree, for the reasons given by my Lord in the chair, that this appeal should be refused.