In adoption, the consent of the birth parents, or the birth mother’s consent, where the father is unknown, has played a major role in many cases.

Article 115(3) of the Civil Code lays down that adoption decrees would not be issued unless the biological parents of the child, except of those born out of wedlock, have given the necessary consent for adoption.

In the case of children born out of wedlock, the consent of the biological mother is required even though she might still be a minor.

What about the rights of the father of a child born out of wedlock? If the child is not acknowledged by the biological father, it is clear that no consent can be obtained from a legally non-existent father.

Article 115(4) (b) states that, before issuing an adoption decree, the court must hear the biological father who has acknowledged his child born out of wedlock. But does this amount to requiring consent, the same as is required of the biological mother?

In a case decided by the Court of Appeal (Superior Jurisdiction) on October 27, 1995, a woman initiated adoption proceedings of her child, born out of wedlock, without the consent of the biological father.

The man had acknowledged paternity. Consequently, he started court proceedings to be given care and custody of the child and to suspend the adoption proceedings.

When the case was in front of the First Hall, Civil Court, that is, the court of first instance, the judge decided in favour of the father, giving him the care and custody of the child. However, it abstained from taking further cognizance as to whether it should order the suspension of the adoption proceedings.

The Court of Appeal stated that, in cases where a child born out of wedlock has been acknowledged by the father, then the mother would need to inform of her intention to put up the child for adoption due to the fact that both parents have patria potestas and such should be exercised with agreement by both parents. In cases of disagreement, such as in this case, the mother should have sought court direction and not initiated adoption proceedings without seeking such direction.

The Court of Appeal concluded that the way the child was given in the care of those who were seeking to adopt him was abusive of the rights of both the child and the father.

The mother could not give the child for adoption without the consent and the approval of the father.

Therefore, it is apparent that, in cases of children born out of wedlock, when such children are acknowledged by the father, his consent and agreement for adoption needs to be sought.

Article 5 of the Revised European Convention on the Adoption of Children states, among other things, that the consent of the biological mother and father is required and such biological parents must be “counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing.”

Thus, the consent must be free from force and coercion and, moreover, must be an informed consent. The Convention also states that consent can be dispensed with according to law, such as when parents do not have parental responsibility over the child to be adopted.

Article 117 of the Civil Code states that consent is dispensed with if the person whom consent is required from is incapable of giving such consent, the biological parent cannot be traced, “or has abandoned, neglected or persistently ill-treated, or has persistently either neglected or refused to contribute to the maintenance of the person to be adopted, or had demanded or attempted to obtain any payment or other reward for or in consideration of the grant of the consent required in connection with the adoption”, the biological parents are unreasonably withholding their consent, the biological parents are deprived of their parental authority, the child is not in the care and custody of the biological parents and the “Adoption Board declares that there is no reasonable hope that the child may be reunited with his mother and, or father”, the parents have unjustifiably had no contact with the child for at least 18 months or it is in the best interests of the child for such consent to be dispensed with.

Consent is a fundamental aspect in the adoption process and is only dispensed with in very rare cases.

Ann Marie Mangion is a lawyer specialising in Family Law and Child Law.

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