Ks and Ts v Sjfm

• Jurisdiction: Bahamas
• Judge: Bain, J.
• Judgment Date: 05 March 2012
• Court: Supreme Court (Bahamas)
• Docket Number: FAM/and 204 of 2010
• Date: 05 March 2012

Supreme Court

Bain, J.

FAM/and 204 of 2010

Ks and Ts

and

Sjfm

Appearances:

Mrs. Sharon Wilson for the applicants

Family Law - Child — Adoption — Whether father of illegitimate child had to give consent to adoption order.

Bain, J.

1 (1) By Originating Summons filed 14 April 2010 the applicants made application to adopt SJFM. The Originating Summons was supported by an Affidavit in Support and a Statement filed 14 April 2010.

2 (2) The Order appointing the Guardian Ad Litem was made on 22 February 2011. Mellany Zonicle was appointed Guardian Ad Litem and prepared a Report by Guardian Ad Litem. This report was not filed.

3 (3) As instructed by the court, an Amended Statement in Support of Application for an Adoption Order was filed on 16 November 2011.

4 (4) The child is the natural child of the female applicant.

5 (5) There was no consent filed by the father of the child.

6 (6) At the hearing of the Summons for the final order, the Court questioned whether the consent of the father was necessary or whether the applicants intended to make application to the court to dispense with the consent of the father pursuant to Section 7 of the Adoption of Children Act.

7 (7) Section 7 of the Adoption of Children Act provides:–

“7. (1) An adoption order shall not be made except with the consent of every person or body who is a parent or guardian of the infant, or who is liable by virtue of any order or agreement to contribute toe the maintenance of the infant:–

Provided that the court may dispense with any content required by this subsection 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 as aforesaid 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 is consent is unreasonably withheld.”

8 (8) Counsel for the applicants submitted that the consent of the father was not necessary and cited the judgment of Osadebay, J. (Ag) in Thurston et al v. Johnson BS (1994) SC 28. In that case Osadebay held that a putative father was not a parent under the Adoption of Children Act and therefore his consent was not necessary.

9 (9) In Thurston v. Johnson et al Osadebay, J. (Ag) relied on the judgment of Denning, L.J. in Re M, An Infant [1955] 2 QB 479. In that case it was held that a putative father was not a parent within the meaning of the Adoption Act and therefore his consent was not necessary to the making of an adoption order. According to Denning, L.J.

“Thus, (i) the Act has classed the natural father as a “relative” and not as “a parent”. That appears from section 45, which says that “relative” includes, when the infant is illegitimate, the father of the infant. (ii) If the natural father has had an affiliation order made against him, or has agreed to contribute to the maintenance of the infant, his consent is necessary under the Act; but that is because of the order against him or his agreement. It is not because he is a “parent”. (iii) Section 10 of the Act of 1950 extinguishes the rights of the “parents” in the child: if the natural father had any rights, the section would go to show that he was a parent: but as he has no rights, it goes to show that he is not a “parent”. (iv) The Adoption of Children (County Court) rules made by the Lord Chancellor in 1952 (S.I. 1952, No. 1258) proceed on the footing that the consent of a natural father is not required unless an affiliation order has been made against him.

In my opinion, therefore, the natural father has no right to object to this adoption. His consent was not required, and the judge was wrong in thinking, that it was.”

10 (10) Since Thurston v. Johnson there has been significant changes in the laws of The Bahamas and the United Kingdom.

11 (11) Lord Justice Balcombe in Re H (Minor) (Rights of Putative Fathers) (No. 2) 1991 FCR 361 noted the change in the laws of the United Kingdom.

“Until the recent changes in the law, the father of a child born out of wedlock had only very limited rights in relation to the child. He was not a parent of the child within the meaning of the Child Care Act 1980 (although he was a relative): see section 87 (1); he had no parental rights and duties under the Children Act 1976: see section 85 (7); he was not a parent of the child for the purposes of the Adoption Act, 1976: see Re M an Infant 1955 2 QB 479, although he might be its guardian if so appointed or if he had custody under section 9 of the Guardianship of Minors Act 1971; see section 72(1) of the 1976 Act. Although as against the mother he could obtain an order for custody of the child under section 9 of the 1971 Act, he could not obtain such an order if the child was in the care of the local authority: see Re M and H (Minors) (Lord Authority: Parental Rights) 1989 FCR 65, 1990 1 AC 686. Nor was he a parent of the child for the purpose of applying under Part 1A of the 1980 Act for access to the child if in care. See Re N (Minors) 1989 FCR 481.

That position has now been changed by the Family Law Reform Act 1987 and more recently by the Children Act 1989, although some of the relevant provisions of the latter Act are not yet in force. The method adopted was not to equate the father of a child born out of wedlock with the father of a legitimate child: it was to give the putative (or natural) father the right to apply for an order giving him all the parental rights and duties with respect to the child. (When s 4 of the 1989 Act is brought into force he will be able to acquire parental responsibility by agreement with the mother.) The reason why this method was adopted was because the position of the natural father can be infinitely variable; at one end of the spectrum his connexion with the child may be only the single act of intercourse (possibly even rape) which led to conception: at the other end of the spectrum he may have played a full part in the child's life from birth onwards, only the formality of marriage to the mother being absent. Considerable social evils might have resulted if the father at the bottom end of the spectrum had been automatically granted full parental rights and duties and so Parliament adopted the scheme to which we have referred above.

In considering whether to make an order under s 4 of the 1987 Act the court will have to take into account a number of factors of which the following will undoubtedly be material (although there may well be...