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Cite as: 2004 SCLR 219, [2003] ScotCS 298

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Cameron v. Gibson [2003] ScotCS 298 (02 December 2003)

A1952/02

OPINION OF LORD DRUMMOND YOUNG

in the cause

ALEXANDER CAMERON (ASSISTED PERSON)

Pursuer;

against

IAN MacINTYRE GIBSON, as Executor Dative of the late Dugald MacIntyre and ANOTHER

Defenders:

________________

Pursuer: J M Scott; Anderson Strathern WS

Defender: Wise; Morton Fraser

2 December 2003

[1] On 23 December 1950 Mary Ferris or Cameron presented a petition to the Sheriff Court at Fort William seeking authority to adopt the present pursuer. On 26 February 1951 the Sheriff granted authority to Mrs Cameron to adopt the pursuer and made an adoption order in respect of him. The pursuer has raised the present action for production and reduction of that decree. The compearing defender is the executor dative of the pursuer's natural brother, Dugald MacIntyre, who died on 25 May 1999.

[2] In support of reduction, the pursuer makes the following averments. He was born on 26 February 1930, and was named Alexander Cameron MacIntyre. His mother was Margaret Finlayson MacIntyre. The pursuer was brought up in the household of Donald and Mary Cameron at 76 Camaghael, Fort William. In September 1950 he moved to Slough, Berkshire, where he has since resided. Since November 1950 he has been known as Alexander Cameron. On 23 December 1950 Mary Cameron presented the adoption petition referred to above to the Sheriff Court at Fort William. Decree of adoption was granted on 26 February 1951, which was the pursuer's twenty-first birthday. The pursuer avers that he was unaware that he had been adopted until he contacted the solicitors who acted on behalf of his brother, the late Dugald MacIntyre. The pursuer was then advised that he had been adopted and that he had no claim in relation to Dugald MacIntyre's estate.

[3] The pursuer seeks reduction of the adoption order on two grounds. First, on 26 February 1951 the pursuer attained twenty-one years of age. Section 1(1) of the Adoption Act 1950, the statute in force at the time, permitted a court to make an order authorising the adoption of "an infant". Section 45 of the Act defined "infant" as "a person under twenty-one years of age". The pursuer was therefore not under twenty-one years of age when the adoption order was made. On that basis it is claimed that the order was incompetently granted. Secondly, a form of consent bearing to have been signed by the pursuer, signing "A Cameron McIntyre", was produced in the adoption proceedings in Fort William Sheriff Court. The form bears to have been signed on 18 December 1950, in Fort William. The pursuer avers that the form of consent was not signed by him, and that on the date stated on the form he was living in Slough. In support of the averments that the form of consent was not signed by the pursuer, reference is made to the opinion of a consultant forensic document examiner. Paragraph 12 of the petition in Fort William Sheriff Court contained a statement that consent had been obtained from the pursuer. On 15 January 1951 the Sheriff Substitute dispensed with intimation on the walls of court and made no order for intimation on the pursuer. In these circumstances the pursuer avers that the petition proceeded upon the false basis that the pursuer had consented to the making of the adoption order.

[4] The defender has tabled pleas-in-law to the competency of the remedy sought and to the relevancy of the pursuer's averments, and at the procedure roll discussion that was held before me his counsel argued that those pleas should be upheld. In relation to the competency of the remedy sought, she submitted that the remedy sought was unprecedented; no authority existed in support of the contention that the Court of Session had inherent power to reduce an adoption order. Moreover, the nature of an adoption order was such as to suggest that it should be final for all purposes. Once such a order was granted, it had lifelong consequences. It has been held that an adoption order is sui generis; consequently the inherent power of the Court of Session to reduce decrees in absence and in foro should not apply: J and J v C's Tutor, 1948 SC 636. Reference was also made to Skinner v Carter, [1948] Ch 387, and Re B (adoption; setting aside), [1995] 1 Fam L R 1; [1995] 2 Fam L R 1. Counsel thereafter submitted that the revocation of adoption orders was dealt with by specific limited statutory provisions, now contained in sections 46 and 47 of the Adoption Act 1978. On the basis of these sections, she submitted that it could be inferred that Parliament intended that these should be the only grounds for revocation of an adoption order. Finally, counsel submitted that there were strong public policy arguments against permitting the reduction of an adoption order. Such orders were permanent, and generally irrevocable. Under the law currently in force, they affect all aspects of the status and property of the person adopted. Moreover, if decree of reduction is to be granted, restitutio in integrum must normally be possible. Following adoption, however, it was likely that the adoptive parents had alimented the child, presumably on the faith of the adoption order. In practice, therefore, restitutio in integrum would be impossible, and it would not normally be appropriate to grant reduction. In relation to the relevancy of the pursuer's averments, counsel submitted that, if reduction of an adoption order was competent, the test for such reduction should be no less stringent than that for a decree in foro. It would accordingly be necessary to have a proof to investigate the factual basis for the grounds on which the pursuer sought reduction.

[5] In reply, counsel for the pursuer submitted that adoption orders might be reduced in three categories of case. In the first, the order was bad on its face, and was therefore a nullity and effectively void. In the second, the order was good on its face, but there existed a defect of a fundamental nature in the making of the order. In such a case the order was void, or possibly voidable, and should be reduced. In the third category, the order was good on its face, and competently and regularly granted, but the circumstances were such that the Court should not permit it to stand. The present case was not concerned with the third category, but only with the first two. With the second category, it was necessary to ensure that the position of the child was safeguarded, and also to consider whether the persons requesting reduction were seeking to rely on their own failings. Reference was made to Re F, [1977] Fam 165, S v M, 1999 SC 388, Re RA (Minors), (1974) Fam Law 182, and R v Leeds City Justices, ex p Gilmartin, [1951] C. L. Y. 1629, and also to certain of the cases cited on behalf of the defender. The first ground on which reduction was sought related to the age of the pursuer at the time when the adoption order was made. Counsel submitted that this was an error that was tantamount to an error appearing on the face of the order, because both the pursuer's date of birth and the date of the order appeared there; at the very least, a question arose from the terms of the order. On this basis, counsel submitted that the pursuer's age was a fundamental defect which rendered the order incompetent. The second ground, relating to the consent form, involved fraud. That fell into the second category, but it was a defect that justified reduction. At this point I should make one general comment about the approach taken by counsel. While the analysis that she suggested may have some support from English cases, I am bound to say that I did not find it helpful in the context of the Scottish remedy of reduction. In particular, I have difficulty in understanding why it is relevant that an error appears on the face of a decree or other order; even if an error does not appear in that way it is still an error, and should be dealt with accordingly. It is possible that this distinction depends historically on the requirements of the English prerogative writ of certiorari, and if that is so it has no place in the Scots law of reduction.

[6] In 1951 the statute governing adoption was the Adoption Act 1950. Section 1(1) of that Act was in the following terms:

"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".

"Infant" is defined in section 45 as a person under twenty-one years of age. The effects of an adoption order at that time are set out in sections 10-16 of the 1950 Act. The primary effect is that stated in section 10(1):

"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 and education of the infant, including all rights to appoint a guardian..., shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as if the infant were a child born to the adopter in lawful wedlock; and in respect of the matters aforesaid (and, in Scotland, in respect of the liability of a child to maintain his parents) the infant shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock".

Thus the effect of an adoption order was to cut off all of the natural parents' rights as to custody, maintenance and education, and to vest those rights exclusively in the adopter. At that time a Scottish adoption order did not affect rights of succession, including legal rights; that was provided expressly in section 15 of the Act. Consequently an adopted child retained rights of succession in the estate of his natural parents and their family. The law in this respect has changed subsequently, and now section 39 of the Adoption (Scotland) Act 1978 provides that a child who has been adopted is to be treated in law as if he had been born the legitimate child of the adopters and were not the child of any other person. Section 38 of the 1978 Act gives section 39 retrospective effect. The result is that, if the adoption order made on 26 February 1951 stands, the pursuer will have no rights of succession in the estate of his natural brother. If, however, that order is reduced, the pursuer's rights of succession in the estate of his natural brother will revive.

[7] The nature of an adoption order was considered in J and J v C's Tutor, supra. In that case adoptive parents attempted to reduce an adoption order on two grounds. First, they claimed that they had adopted the child under essential error induced by innocent misrepresentations made by those acting for the natural mother; it was averred by the pursuers that they had been assured that a satisfactory medical report existed in relation to the child, whereas in fact the child had suffered brain injury at birth. Secondly, the pursuers contended that certain statutory prerequisites of adoption had not been carried out; in particular, the adoption petition was presented less than three months from the date when the child was placed in the care of the adoptive parents, contrary to the Act. Lord President Cooper began his analysis of the law by stating that the Adoption of Children (Scotland) Act 1930 "made a serious invasion upon the common law by introducing a novel institution which cannot easily be fitted into its setting". In relation to custody, maintenance and education, the Act transferred from the natural parent to the adopter the whole of the rights and obligations that flow from parenthood. It was plain that an adoption order affected status, because the question of custody was clearly a question of status; moreover, the child's personal liberty and even his name were affected. The opinion continues (at 1948 SC 642-643):

"From all this I conclude that adoption proceedings are sui generis, uniquely devised to effectuate a new statutory institution, and incapable of being forcibly compressed into any of our pre-existing categories of forms of action....

I do not consider that an adoption order is either a decree in foro or a decree in absence... It stands in a class apart. The suggestion that every adoption order is liable to be reopened at any time for 20 years after it is made would make havoc of the whole purpose underlying the introduction of legal adoption, viz, to exclude the factor of instability... by virtue of which de facto adoptions could be terminated by the natural parents at pleasure, contract or no contract".

The court held that essential error was not a valid ground for reduction of an adoption order. The Lord President stated (at 644):

"The statute, which made such anxious provision for effectuating adoptions, nowhere makes any provision for their suspension or cancellation.... In section 7 of the [Adoption of Children (Scotland) Act 1930] provision is made whereby an adopted child can be got rid of by the adoptive parents by a second adoption; and section 7(6) of the [Adoption of Children (Regulation) Act 1939] enables an adopted child in very special circumstances to be removed from its adopter to a 'place of safety.' But no facilities are offered to the adopter or natural parent who, for good reasons or bad, rues his bargain, or for the adopter who adopts under error, essential or otherwise. It may well be that in relation to such a transaction, involving in most cases unpredictable risks as to the development of an infant child, Parliament deliberately adopted the principle of vestigia nulla retrorsum. I reserve the case (probably theoretical) of mistaken identity as to the adopted child; and I deliberately abstain from generalising more widely than is necessary for the decision of this case. I am prepared to hold that this action, in so far as directed to [the case of essential error], is incompetent as laid, and is not supported by relevant averments".

The pursuers' argument based on failure to comply with statutory requirements was likewise rejected, on the ground that they were themselves responsible for the error in question.

[7] The nature of an adoption order was also considered by the Court of Appeal in England in Skinner v Carter, supra. Adoption is, of course, a statutory creation in the United Kingdom, and the legislation in Scotland uses similar terms and concepts to that in England. Consequently the views of the English courts on the meaning and legal significance of the adoption legislation are of persuasive authority in Scotland. In Skinner, Lord Greene MR stated (at [1948] Ch 391) that an adoption order alters the status of the child concerned, who is the person primarily affected and interested. Consequently, in any proceedings for the revocation or annulment of an adoption order, the child must be represented. The court did not, however, pronounce on the remedies that might be available to achieve that result, nor on the grounds on which those remedies might be granted: see page 394. A further comment on the nature of an adoption order is found in D v Grampian Regional Council, 1995 SC (HL) 1, where Lord Jauncey stated (at p 5H-I):

"The Act of 1978 provides a comprehensive code for adoption and it is perfectly clear that the whole procedure is intended to produce a permanent result for the adopted child. An adoption order once made is irrevocable only in circumstances which will have no practical effect upon the child's day to day life in contradistinction to an order for custody or access which is always reviewable by the court when circumstances demand"".

[8] The opinion of Lord President Cooper in J and J v C's Tutor has been cited as authority for the proposition that it is incompetent to reduce a decree of adoption: see Stair Memorial Encyclopaedia of the Laws of Scotland, vol 13, paragraph 42. In my opinion neither the decision nor the dicta contained in the Lord President's opinion go as far as that. The case is authority for the proposition that an adoption order is neither a decree in absence nor a decree in foro. It is also authority for the proposition that it is not possible to reduce an adoption order on the ground of misrepresentations or error of fact, nor on the ground that statutory formalities have not been complied with, at least where the party seeking reduction has been responsible in part for the failure to comply. The decision does not go so far, however, as to rule out reduction in any circumstances whatsoever.

[9] In my opinion reduction of an adoption order is competent, but the remedy will only be available in very limited circumstances. In practice the only such case that is likely to be of importance is where the adoption order has been granted as a result of a fraud perpetrated on the court. Where a fraud has been practised on the court, reduction is a remedy that is generally available: see, for example, Adair v Colville & Sons, 1926 SC (HL) 51, at 56 per Lord Dunedin. The reason for permitting such a remedy is obvious, in that actual dishonesty is involved. Thus fraud can be regarded as standing in a unique position. As in any case of fraud it must be established that the dishonesty has had a practical effect; in this case it must be established that the decree to be reduced was pronounced in consequence of the fraud perpetrated on the court. Provided that both a dishonest representation to the Court and practical consequences can be shown, however, I am of opinion that fraud is a ground for reduction of an adoption order. Reduction is an equitable remedy, and the court has a discretion as to whether it should be granted in any particular case. Generally speaking, reduction is not granted where restitutio in integrum cannot be effected, at least to a substantial degree. In the case of fraud, however, I think that this principle may be subject to considerable qualification. The reason for refusing the remedy in such cases is to protect the position of any person who has acted on the faith of the decree or other document that is to be reduced. Where that person has been guilty of fraud, however, he may not deserve protection; consequently the fraud may be put right regardless of the consequences for him. Nevertheless, for present purposes it is not necessary to express any concluded view on this matter.

[10] Apart from the case of fraud, I am of opinion that there are strong policy reasons for treating adoption orders as generally sacrosanct, and only permitting their reduction in certain extreme situations which are probably of theoretical rather than practical significance. Such orders affect the status of the person adopted, in very fundamental respects. Even under the Adoption Act 1950, whose consequences were more limited than those of more modern legislation, the entire responsibility for a child's custody, maintenance and education was removed from the natural parents and conferred on the adoptive parents. That is a step of fundamental significance. It is also a step that is clearly intended to be permanent; Lord Jauncey's remarks in D v Grampian Regional Council, supra, are pertinent in this connection. Moreover, although successive Adoption Acts have contained detailed rules regarding the adoption process itself, they only permit an order to be superseded or revoked in very limited circumstances. The Acts of 1930 and 1939, as Lord President Cooper pointed out, only permitted subsequent adoption and removal of the child to a place of safety. The 1978 Act permits revocation of an adoption on the legitimation of the child by the marriage of the natural parents (section 46) and for the annulment of certain overseas adoptions (section 47). In these circumstances it would in my opinion be inappropriate for the court to permit the revocation of adoption orders for reasons other than fraud, which always raises special considerations, and certain other situations described in the next paragraph.. The reason that Parliament has made very restricted provision for the revocation of adoption orders is no doubt that identified by Lord President Cooper in J and J v C's Tutor, namely that adoption involves unpredictable risks as to the development of the child, and that therefore there should be no possibility of going back. Moreover, adoption affects status in a peculiarly fundamental manner; it creates a relationship whose paradigm is the relationship of natural parent and natural child, a relationship which, apart from the statutory possibility of adoption, is obviously wholly irrevocable and unbreakable.

[11] Nevertheless, apart from fraud, certain situations exist in which reduction may be an available remedy. Reduction would no doubt be available where it was not competent for the court in question to make any adoption order, with the result that the purported order was beyond the court's jurisdiction; in such a case the category of order is beyond the powers of the relevant court, and the order must therefore be a legal nullity. In practice, however, it is difficult to imagine how any such case could arise. I should add that, when I use the word "jurisdiction" in this context, I am not referring to the allocation of jurisdiction geographically among, for example, different sheriff courts, but to the ability of the level of court in question to make adoption orders. It might also be possible for an adoption order to be reduced on the ground that it was obtained in breach of the principles of natural justice. That might occur where, for example, the child's natural mother did not receive service of the adoption petition and had no other knowledge that an attempt was being made to adopt the child; in that event it can be considered that there is a fundamental injustice to the natural mother: see Re B (adoption: jurisdiction to set aside), [1995] 2 FLR 1, at pp 4-5. In practice, the remedy to deal with that situation is likely to be an appeal against the adoption order rather than an action of reduction, because the defect is likely to come to light within a fairly short time after the making of the adoption order, when an appeal, even if out of time, is still a realistic remedy. Such an appeal was entertained in S v M, supra. For present purposes, however, it is not necessary to reach a decision on whether reduction is a competent remedy where the ground of challenge is breach of the principles of natural justice. In addition, it is possible that an error as to the identity of the child adopted would be a valid ground of reduction; the possibility is left open by Lord President Cooper in J and J v C's Tutor, at 1948 SC 644. In this case, the error may be regarded as being of such a fundamental nature that the policy reasons for treating adoption orders as generally irrevocable do not apply. Other cases may exist where the policy reasons against the reduction of adoption orders do not apply, or where there has been an obvious miscarriage of justice in the manner discussed in Bain v Hugh LS McConnell Ltd, 1991 SLT 691; in this area of the law it is probably impossible to lay down rules of wholly general application.

[12] Apart from such exceptional cases I am of opinion that reduction of an adoption order is not competent. In particular, it should not be possible to reduce an adoption order merely because it was granted on the basis of an error of fact or law. J and J v C's Tutor is authority for that proposition so far as it relates to errors of fact. In my opinion exactly the same approach must be taken to errors of law in view of the policy considerations discussed above. Nor can an adoption order be reduced on account of a procedural error that does not amount to a denial of natural justice. J and J v C's Tutor is authority for that proposition to the extent that the person seeking reduction is wholly or partly responsible for the procedural error, but in my opinion the point is of more general application; because of the peculiar nature of adoption, it should not be invalidated by any procedural error, at least if it does not amount to a denial of natural justice.

[13] In the present case, the first ground on which the pursuer seeks reduction of the adoption order is that, at the time when it was granted, he was twenty-one years old. Section 1(1) of the Adoption Act 1950 permits an adoption order to be made in respect of an "infant", an expression which is defined in section 45 of the Act as a person under twenty-one years of age. The adoption order was in fact granted on the pursuer's twenty-first birthday, but it appears from his birth certificate, which is lodged in process, that he was born at 2 am; consequently, in accordance with the law then in force, he would have attained twenty-one at 2 am on the date of the adoption order, which is obviously before the order would have been granted. In those circumstances the defect in the granting of the order amounts in my opinion to no more than an error of either fact or law. Either the Honorary Sheriff Substitute who granted the order failed to realise that the pursuer had attained twenty-one, which is an error of fact, or he realised that the pursuer had attained twenty-one but did not appreciate the significance of that fact for his power to grant an adoption order, which is an error of law. In either event, I am of opinion that reduction is not competent. Counsel submitted that the pursuer's age was a defect of such a fundamental nature that it rendered the order void, with the consequence that reduction ought to be granted. I do not agree. It is no doubt a precondition of an adoption order that the person adopted is under twenty-one, but I cannot see any basis for distinguishing the requirement of age from any other precondition for the making of an order, or indeed any other issue of fact that forms a material consideration in the making of the order. An error as to such a precondition does not affect the competency of the order, in the sense that the Sheriff Substitute had power to make orders of the category in question, namely adoption orders. Nor in this respect is there any suggestion of fraud or any other defect that might take the case outwith the policy considerations discussed in paragraph [10] above.

[14] The second ground on which the pursuer seeks reduction is that the form of consent lodged in the adoption process was not signed by him. That is clearly an allegation of fraud. The circumstances that led to the fraud are not explained, no doubt because the lapse of time since the order was granted has made it impossible to discover what happened. Nevertheless, the allegation is clearly that the consent form was signed by some person other than the pursuer, which must have involved fraud. The consent form was required in terms of section 2(4) of the Adoption Act 1950, which provided that an adoption order should not be made in Scotland in respect of an infant who is a minor except with the consent of the infant. The existence or otherwise of the form was accordingly a matter of some importance for the Sheriff Substitute, and it may reasonably be supposed that the existence of the form played a material part in his decision to make the adoption order. In the circumstances I am of opinion that a sufficient case of fraud has been averred. As I have indicated, I am of opinion that reduction is competent in any case where an adoption order has been induced by a fraud perpetrated on the court. This part of the pursuer's case appears to fall into that category. Clearly I cannot reach any concluded view on the matter at this stage; proof will be required that the consent form was not signed by the pursuer before any inference of fraud can be drawn. In addition, it may be material to consider the court's discretion to refuse reduction, in particular in a case where restitutio in integrum cannot be achieved. While the existence of fraud may have a bearing on the court's discretion to refuse decree on equitable grounds, that discretion still exists, and can only be exercised once the full circumstances of the case are known. In any event, in the present case no information was available about the extent, if any, to which the pursuer may have benefited from Mrs Mary Cameron's estate. Counsel for the defender indicated that she intended to investigate this matter if a proof was allowed, on the basis that any such benefit might be relevant to whether restitutio in integrum was possible.

[15] In the foregoing circumstances I will allow the case to proceed to proof before answer on the second of the grounds advanced by the pursuer, namely the alleged defect in the form of consent. I find the averments in support of the first ground advanced, the age of the pursuer, to be irrelevant. To that end, I will exclude the averments in article 6 of condescendence from probation, and will repel the pursuer's first plea-in-law and sustain the defender's third plea-in-law; these correspond to those averments. I will likewise exclude from probation the averments in article 5, which relate to a ground that was not advanced by counsel for the pursuer during the procedure roll discussion. To the foregoing extent I will sustain the defender's first plea-in-law, which is to the relevancy of the pursuer's averments. The defender also has a plea to the competency of the action added at the start of the procedure roll discussion, but I think that the ground for excluding the foregoing averments relates to relevancy rather than competency; the remedy of reduction is itself competent in respect of an adoption order, albeit on limited grounds. Consequently I will repel the defender's plea to the competency of the action. I will also repel the pursuer's third plea-in-law, which is to the relevancy of the defences. I will allow a proof before answer on the remaining averments of both parties.