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IN RE ADOPTION OF CHILDREN ACT; AND IN RE APPLICATION FOR
ADOPTION OF J. (AN INFANT)

Supreme Court of the Northern Territory of Australia Kearney J
12, 13 July; 18 October 1990 at Darwin.

CHILD - capacity of unmarried minor to consent to adoption of her child - whether minor of sufficient understanding to make a responsible decision - practice requirement that person witnessing consent ascertain understanding of minor - Adoption of Children Act, ss.21(2), 26(1)(d).

FAMILY LAW - adoption - consent - capacity of mother under the age of majority to consent to adoption of her child - sufficiency of consent to adoption by unmarried minor - whether consent to adoption by parents of unmarried minor/mother is required
PRACTICE AND PROCEDURE - adoption - consent - verification of consent to adoption - affidavit of verifying witness to provide sufficient information - need to satisfy Court that consent freely given with full understanding of consequences
- Adoption of Children Act, ss.26(1)(d), 27(1)(b)
PRACTICE AND PROCEDURE - adoption - consent - affidavit verifying consent of unmarried minor to adoption of her child - desirability that affidavit make reference to views of minor's parents

Cases applied:
Gillick v West Norfolk A.H.A. (1986) AC 112

Cases followed:
D and Wife v F (1972) NZLR 951
Re AB (an infant) (1949) 1 All ER 709

Cases referred to:
Hewer v Bryant [1970] 1 QB 357 Lough v Ward [1945] 2 All ER 338 Re K (1963) 5 FLR 38
RvGyngall [1893] 2 QB 232

Counsel for the Applicants: Solicitor for the Applicants:

C,A. Smith
Philip and Mitaros

Amicus curiae:	B.L. Johns

kea90151
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

AC 6 of 1990

IN THE MATTER OF the
Adoption of Children Act

AND IN THE MATTER OF an
application for the adoption of J. (an infant)

CORAM:	KEARNEY J.

REASONS FOR RULING
(Delivered 18 October 1990)

By Originating Summons of 15 May 1990 a husband and wife applied to adopt an infant J.	The applicants qualified in all respects as persons in whose favour an adoption order could be made and it was clear that the welfare and interests of the infant would be promoted by the adoption.

The natural mother of the infant was aged 15 when she signed the usual general form of consent to adoption, required by s.21 of the Adoption of Children Act
(herein "the Act'').	She was not married.	A question
arose as to whether the natural mother, as a minor, was able to give a valid consent to the adoption; and if so, whether her consent was sufficient.	Section 4 of the Age of Majority Act provides that a person "attains full age for all purposes of the law of the Territory when [she] attains the age of 18 years."		A person under
the age of 18 years is a minor, and in the custody of his or her parent; does that fact mean that the

minor lacks capacity alone to consent to adoption?	On 12 and 13 July I heard submissions on the question of the mother's capacity to consent; I ruled that her consent was
valid and sufficient for reasons to be later given, and made the order for adoption sought.	I now state the reasons for the ruling.

Section 21 of the Act provides in part:-

"(1)		- - - the Court shall not make an order for the adoption of a child unless consent - - to the adoption has been given by the appropriate person or persons ascertained in accordance with the succeeding provisions of this section -

(2)		In the case of a child who has not previously been adopted, the	consent of every person who is a parent or guardian of the child is required	"

The natural mother is a "a parent" of the infant, within the meaning of s.21(2); see also s.7(2) of the Guardianship of Infants Act.

Section 26(1) of the Adoption of Children Act provides that the Court may refuse to make an adoption order where, inter alia:-

"(d)		the person giving - - - the consent was not, on the date of the instrument of consent, in a fit condition to give the consent or did not understand the nature of the consent".

The fact that a consenting parent is under the age of 18 years at the time of consent is not a statutory ground for refusing to make an adoption order.	The Act does not deal with capacity to consent other than in s.27(1), which provides that the Court may dispense with the consent required of a person in certain circumstances.	S.27(1)(b) provides for consent to be dispensed with if:-

"(b)		that person is in such physical or mental condition as not to be capable of properly considering the question whether he should give his consent;".

It can be seen that the Act does not specifically deal with the question of the capacity of a mother under the age of majority to give an effective consent.

At common law the parental rights associated with custody were vested in the father and were almost absolute; see R v Gyngall [1893] 2 QB 232.	Strong paternal custody rights are consistent with the duty of the "head of the family" to protect those under his care and control.
Statutory changes gave the mother custodial rights, but the

principle of parental care custody which a parent has

and control remains.	The
of his or her child ends when the

child turns 18 years.	There is judicial support for the view that marriage ends parental custody over female minors; see Hewer v Bryant [1970] 1 QB 357 at 373.	In Lough v Ward [1945] 2 All E.R. 338 at p.348, Cassells J did not distinguish between male and female minors in stating:-

"	- - the law of England is that the father is the head of the family and has control over his children, their persons, their education and their conduct, until they are 21 years of age
or marry under that age."	(emphasis mine)

Marriage terminates any existing orders as to custody and guardianship of the child; see s.63F of the Family Law Act (C'th).	This approach is consistent with the establishment of a new family group.	As a result, a married infant mother is not subject to the custodial rights of her parents; this consequence is moderated by the requirement for parental consent to, or court approval of, the marriage of a minor.

A consent to adoption of a child born within the marriage, or where the paternity of the child is recognised by law, must be signed by both parents; see s.21(2) of the Act.	Thus the signature of a married infant mother is necessary but not, by itself, sufficient.

It seems doubtful whether in the past at common law the mother of a child born out of wedlock had any rights in relation to her child, which was regarded as filius nullius. That position has been superseded by various statutory provisions; for example, see generally the Guardianship of Infant Act, s.2(2) of which provides that:-

"	- where no person is recognized as the father under this Act [as here) the mother of the infant shall have the guardianship and custody of the infant while an infant."

See also the Status of Children Act, which is directed to the status of children born out of wedlock.

Mr Johns as amicus curiae submitted that the thrust of the authorities was that a mother under the age of majority had the capacity to consent to the adoption of her child.
It is somewhat curious that there is no authority directly on the point.	As Selby J said in Re K (1963) 5 FLR 38 at p.39:	"- - - it cannot be regarded as exceptional or unusual that a fifteen year old girl has become pregnant." I note that in Re AB (an infant) (1949) 1 All E.R. 709 at p.710 Vaisey J accepted as sufficient the consent of a
year old mother to the adoption of her daughter "notwithstanding her youth, in preference to dispensing with it as I have power to do."	In D and Wife v F (1972) NZLR 951 a consent by a 16-year old mother resulted in an adoption order; the consent was later held to have been given under pressure and the order for adoption was revoked.

Gillick v West Norfolk A.H.A. (1986) AC 112 involved the extent of parental rights and duties in respect of the medical treatment of girls under 16.		The House of Lords, by majority, held that a girl under 16 had legal capacity to consent to being medically examined and treated, including contraceptive treatment, if she had sufficient maturity and intelligence to understand the nature and implications of the proposed treatment.	Accordingly, where she had consented, a lack of parental consent would not render the treating doctor's conduct unlawful.	Their Lordships also held that the parental right to control a child was a right which dwindled as the child grew older and which existed only in so far as it was required for the child's benefit and protection.	The extent and duration of the parental right could not be ascertained by reference to a fixed age, but depended on the degree of intelligence and understanding of the particular child and a judgment of what was best for the welfare of the child.

In considering the capacity of a female minor to consent to medical treatment Lord Fraser of Tullybelton said at p.169:-

"- - a minor under the age of 16 can, within certain limits, enter into a contract.	He or she can also sue and be sued, and can give evidence on oath.	Moreover, a girl under 16 can give sufficiently effective consent to sexual intercourse to lead to the legal result that the man involved does not commit the crime of rape - see Reg. v Howard [1966] 1 WLR 13, 15 when
Lord Parker C.J. said:

"in the case of a girl under 16, the prosecution, in order to prove rape, must prove either that she physically resisted, or if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist ..	there are many girls under 16 who know full well what it is all about and can properly consent.""	(emphasis mine)

On the question of parents' rights and duties in respect of the medical treatment of their child, Lord Fraser said at p.171:-

"In practice most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent.
Moreover, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts.	Social customs change, and the law ought to, and does in fact, have regard to such changes when they are of major importance."	(emphasis mine)

In the light of the approach to a minor's consent in Gillick (supra) I consider that the question in relation to the capacity of a mother under the age of majority to consent to adoption is whether she is of sufficient understanding to make a responsible decision on the matter. It is not simply a question whether she is or is not under the age of majority.	It entails an investigation of the particular minor's capacity to understand.

The Court must be satisfied that, with full understanding of what is involved, she freely agreed unconditionally to the adoption of her child.

Section 25 of the Adoption of Children Act provides:-

"A consent for the purposes of the preceding provisions of the Division shall be evidenced by an instrument of consent substantially in accordance with the prescribed form signed by the person giving the consent and attested as prescribed."

Regulation 6 of the Adoption of Children Rules prescribes the form of the instrument of consent required by s.25.	The

following explanation as to the legal effect of an adoption order is set out in this form:-

"Upon the making of an adoption order -

the child is deemed for all purposes and as regards all relationships to become a legitimate child of the adoptive parents;
rights of guardianship and existing relationships in respect of the child cease except for the purpose of determining forbidden relationships in connection with marriage and the crime of incest;

rights in respect of property and succession to property are determined according to the relationship created by the adoption, but property rights acquired before the adoption are not affected;

the child acquires the domicile of the adoptive parents, but the child's race, nationality and citizenship are not affected; and

an affiliation or maintenance order, or an agreement, made before the adoption order, by which the putative father of the child is to make payments for the maintenance of the child ceases to have any further effect (except as to arrears owing) unless the adopter is the mother of the child and is a single woman."

Prescribed classes of witnesses to the giving of consent are set out in Regulatio.n 7.	The consent to the adoption of the child must be verified by affidavit; see Rule 23 of the Adoption of Children Rules.	In most cases the  witness  to the consent and the person verifying the consent will be "a social worker approved by the Minister," in terms of Regulation 7 of the Adoption of Children Regulations.	It is incumbent on the person witnessing the consent to investigate the quality of that consent; in the case of consent by a child under 18 years this will necessarily involve ascertaining the maturity and understanding of that

that child.	The practice of the Court requires a comprehensive affidavit from the attesting witness.

There is a further safeguard in the case of a young parent in s.26(1)(d); see page 2.	The Court must be satisfied on the material before it that the parent was in a fit condition to give the consent and understood the nature of the consent at the time of signing it.

There is thus a heavy burden on the person who witnesses and certifies the consent; it is no mere matter of form.
Sufficient information must be provided to satisfy the Court
that the consent was freely given and with a full understanding of its consequences.	The burden is heavier where the consenting mother is herself under 18 years old.

Where the person giving consent to adoption is a minor, investigations by the social worker should be particularly diligent.	Parents have a legal responsibility for the physical and moral care and upbringing of their children.
Accordingly, where the consent of a child-mother is required, her own parents' views as to the giving of consent to adoption should normally be obtained, where practicable, and the affidavit should make reference to those views so that the Court may be fully informed.

In the case before me, I was satisfied as to the fitness and understanding of the 15 year old mother when she signed the consent form.	Accordingly, I made the adoption order sought.