Lal v Plaisted [1973] FJLawRp 22; [1973] 19 FLR 108 (16 November 1973)

[1973] 19 FLR 108

COURT OF APPEAL

Civil Jurisdiction

RAM LAL AND ANOTHER

v

IAN ERIC PLAISTED AND ANOTHER

Gould V.P., Marsack J.A., Henry J.A.

7th, 16^th November, 1973

Adoption — when court may dispense with consent of parent, guardian or person liable to contribute to maintenance of child — Adoption of Infants Ordinance (Cap. 48) s. 7(1) — persons to be made respondents — Adoption of Infants (Magistrates' Courts) Rules C 4(3) — disclosure of confidential reports on welfare of child — Adoption of Infants (Magistrates' Courts) Rules 7(3).

Both parents of the infant died within days of her birth. The Public Trustee took out Letters of Administration and consented to the appellants occupying a house belonging to the deceaseds in consideration (inter alia) of them looking after and maintaining the infant and her three brothers and sisters. The infant, however continued to remain in the Dilkusha Home and an application for her adoption by the appellants was refused when she was 6. Subsequently when she was 11, she was transferred from the Home into the care of the respondents who applied for an adoption order.

At the hearing before the magistrate, counsel for the appellants complained that his clients had not been served with papers and he was, therefore, not prepared. The magistrate proceeded to make the adoption order being satisfied that the adoption was for the welfare of the child and dispensed with the consent of the appellants under Adoption of Infants Ordinance (Cap. 48) s.7(1)(b).

On appeal to the Supreme Court, the judge permitted the appellants to call evidence and present their side of the case. He pronounced himself satisfied that the magistrate had acted correctly and in the best interests of the child in making the adoption order.

The appellants again appealed contending that they should have been made full respondents before the Magistrates' Court, that there should have been a proper hearing and that they should have been granted an opportunity to cross-examine the guardian ad litem and Assistant Public Trustee.

Held: 1. The facts showed a failure on the part of the appellants to look after the 0 infant and therefore they were not persons who came within Adoption of Infants Ordinance (Cap. 48) s.7(1) and they were not entitled to be made respondents to the application by virtue of Adoption of Infants (Magistrates' Courts) Rules 4(3).

2. It is in the discretion of the judge or magistrate as to whether all or part of the confidential report of the guardian ad litem is disclosed and he is entitled to give such weight to the report, in conjunction with other evidence, as he thinks just.

Cases referred to:

J.S. (an infant) [1959] 3 All ER 856.

Re G (an infant) [1963] 1 All ER 20.

Re M (an infant) [1972] 3 All ER 321.

Re E (an infant) [1960] The Times, 24th March.

Re G (T.J.) (an infant) [1963] 2 QB 98.

Official Solicitor v K [1965] AC 201.

Central London Property Trust Ltd. v High Trees House [1946] EWHC KB 1; [1956] 1 All ER 256; [1947] KB 130.

Appeal against an order of adoption made in favour of the respondents by the Magistrate's Court and upheld by the Supreme Court.

K.C. Ramrakha & H. M. Patel for the appellants.

R. G. Kermode for the respondent.

Judgement of the Court (read by GOULD V.P.): [16th November 1973]—

This is an appeal from a judgment of the Supreme Court sitting in appellate jurisdiction and dismissing an appeal against the making of an adoption order by a magistrate. The appeal to the Supreme Court was brought under section 17(2) of the Adoption of Infants Ordinance (Cap. 48, Laws of Fiji, 1967) and the second appeal to this court is limited by section 12 (1) (c) of the Court of Appeal Ordinance (Cap. 8) to grounds which involve a question of law only.

The child in question, Deo Rati Bali, was born on the 29th December, 1961, and was about eleven years old at the date of the hearing in the Supreme Court. She was born of Hindu parents and her mother died on the day of her birth. Her father died twelve days later. The infant remained in the care of the nursing staff of the Maternity hospital temporarily, and on the 12th February, 1962, the Public Trustee as administrator for the two estates entered into an agreement with Ram Lal, the uncle of the infant whereby the latter undertook to maintain and provide suitable care for the infant and three other infant children of the same parents. In consideration of this, Ram Lal was allowed the free use of a dwelling house and motor car belonging to one of the estates. In March, 1962, Ram Saxena Kumar, another uncle of the infant, lodged a caveat forbidding the issue of Letters of Administration to the Public Trustee; in April, 1962, Ram Lal and his wife Raj Kumari (the present appellants) lodged a like caveat. In May, 1962, the infant, on the instructions of the Public Trustee was taken fron the Morrison Maternity Annexe to the Dilkusha Home at Nausori.

The litigation, the cause of which is not stated in the record, came to an end on the 18th December, 1962, with an order, made by consent of all parties, that the action be stayed on agreed terms of settlement filed in court. Paragraphs 2 and 3 of those terms read:—

"2. THAT subsequent to the Public Trustee obtaining Letters of Administration in respect of the said estate the said estate will be administered jointly by the Public Trustee, Ram Saxena Kumar (son of Tillakdhari), Ram Lal (son of Ram Sarup), and his wife Raj Kumari (daughter of Tilladkhari).
3. THAT Ram Lal (son of Ram Sarup) and his wife Raj Kumari (daughter of Tillakdhari) shall continue to occupy the house situate at Samabula 3 miles erected on Crown Lease No. 1822 and shall not be liable for the payment of any rental but shall keep the said house in good condition and shall notify the Public Trustee whenever any repairs are required. In consideration of being allowed to occupy the said house rent free the said Ram Lal (son of Ram Sarup) and his wife Raj Kumari (daughter of Tillakdhari) will care for and look after and maintain RASHMA LATA, PRAVEEN KUMAR, DIANA SOHNA LATA and DEO RATI the four children of the deceased and in the event of their failing to look after the said children properly then the administrators are to decide as to what arrangements should be made for their care and maintenance."

The word "administrators" used in paragraph 3 appears to refer to all four parties to the proceedings stayed.

Deo Rati continued to live at the Dilkusha Home while the other three children lived with the appellants in the house above mentioned; one of them we understand, died before 1967, when the appellants applied for an adoption order in respect of Deo Rati and the other two children. This application was refused, possibly as the result of an adverse report by the Welfare Officer, Suva. Deo Rati stayed on in the Dilkusha Home until transferred to the care of the present respondents, Mr and Mrs Plaisted at the end of July 1972.

As submissions have been made on this appeal touching procedural matters, it is necessary to summarise in brief what happened in the courts below as indicated by the record of appeal. The application by the respondents setting out the particulars required by the Ordinance and verified by affidavit, is dated the 7th September, 1962. Miss Maharaj of Suva was appointed guardian ad litem. On the 17th November, 1972, the respondent, Deo Rati, and the guardian ad litem appeared before the magistrate but the report of the guardian ad litem was not ready. The matter was adjourned and on the 24th November, 1972, the same parties appeared and also Mr Chauhan, counsel for the appellant Ram Lal, who had given notice of intention to object. Mr Chauhan submitted that the court had no jurisdiction, relying upon the consent order in the Supreme Court above-mentioned. The matter was again adjourned, and on the 1st December, 1972, the magistrate ruled that he had jurisdiction and asked whether Mr Chauhan wished to call his client to give evidence. Mr Chauhan complained that neither of his clients bad been served with papers and requested a date of hearing, as he was taken by suprise and was not ready. The magistrate, however, proceeded to make the adoption order, and in his " Reasons, " delivered on the 4th December, 1972, said that as the persons (the appellants) purporting to have the care and control of the infant had neglected her and failed to maintain her, he dispensed with their consent under section 7(1) (b) of the Adoption of Infants Ordinance. Section 7(1) reads as follows:—

"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 to the maintenance of the infant:
Provided that the court may dispense with any consent 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, or has made no contribution to its maintenance for a period in excess of five years;
• (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 his consent is unreasonably withheld."

It seems that the evidence upon which the magistrate relied was the report of the guardian ad litem and an affidavit (an annexure to the report) by the Assistant Public Trustee, and, it can be assumed, the application verified by the affidavit of the respondents. We deem it unnecessary to set out the "Reasons" in full, but the magistrate was satisfied that the adoption was for the welfare of the infant and that all conditions precedent had been fulfilled.

Although this appeal lies upon questions of law only it will be helpful at this stage to look briefly at the material which was before the magistrate. It consisted only (in addition to the verified application) of the report of the guardian ad litem to which was annexed the affidavit of the Assistant Public Trustee Christine Andrews and the earlier report of the Welfare Officer at the time of the unsuccessful application for adoption by the appellants in 1967. The affidavit of Christine Andrews contained the history of the matter as set out earlier in this judgment; we need not repeat it, but would add that Letters of Administration of the estates of Deo Rati's father and mother were issued to the Public Trustee respectively on the let and 2nd April, 1973. As to the report itself, it conveyed unqualified approval of the respondents as adoptive parents, with whom and with whose family Deo Rati had had regular contact for 3k years. The report, in a passage relating to the appellants, reads:—

"Since her birth, her relatives, Ram Kumari, Ram Lal and Raj Kumari have shown no genuine concern for her. In fact according to Miss Davies, Ram Kumar and Raj Kumari have never visited the child. Ram Lal had been visiting the Home on an average of twice a year till 1968. Since then, he had not visited the Home at all.
On the question of the child's maintenance, initially this was undertaken by Public Trustee but in February 1968 this financial responsibility was handed over to Ram Lal. According to Miss Davies, between the years 1965-1968 Ram Lal made approximately 15 months payment, under pressure, and then ceased to pay. No payment has been made since.
The respondent has an elder brother and sister who are in the custody of Ram Lal and Raj Kumari but the latter two have never arranged a single meeting among the three siblings. All in all the respondent's relatives have shown the minimal interest in the child and her future welfare."

At the commencement of the proceedings on appeal to the Supreme Court counsel for the respondents submitted that the appellants had no status but the appeal judge decided to hear the whole appeal. We are assured by Mr Kermode, counsel for the respondent, that at this stage Mr Chauhan had a copy of the report of the guardian ad litem (though there is no recorded order on the question) and in fact Mr Chauhan told the Supreme Court that he wanted to dispute the contents of the application and the report. He was permitted to call both of the appellants and Ram Saxena Kumar as witnesses and they gave their version of the matter with particular relation to their conduct towards Deo Rati. At the conclusion of their evidence Mr Chauhan applied to cross-examine the guardian ad litem and the Assistant Public Trustee but the application was refused.

The learned judge dismissed the appeal. He held that even assuming for the purpose of the appeal that the appellants were within rule 3(3) of the Adoption of Infants (Magistrates' Courts) Rules the complaint that they should have been joined as respondents was baseless, as they had been legally represented throughout the proceedings and any procedural defect was thereby cured. The reference in the judgment is evidently intended to be rule 4(3) which reads:—

"The following persons or bodies shall be made respondents, namely, the infant in respect of whom the application is made, the guardian ad litem of the infant, every person or body who is a parent or guardian of the infant, or has the actual custody of the infant or is liable to contribute to the support of the infant, and the spouse, if any of the applicant, except in the case of a joint application by two spouses."

It may be that the words "liable to contribute to the support of the infant" in that rule should be read in conjuction with section 7(1) of the Ordinance (quoted above) which uses the words, "liable by virtue of any order or agreement to contribute to the maintenance of the infant."

The learned judge continued that as the appellants alleged a breach of natural justice in that in the Magistrate's Court the application had been decided without a full hearing, he had permitted the appellants to call evidence and present their side of the case. As he had adopted this procedure he considered that the question whether the appellants had a right to be heard was academic, though he inclined to the view that, by virtue of rule 10, whether a respondent to an application should be called by the court and be heard would appear to be a matter of discretion for the magistrate.

We would interpolate here that, in our opinion, this is not the effect of rule 10. The rule reads:—

"The court may direct that any one of more of the respondents shall attend and be heard and examined separately and apart from the applicant or any other respondent, if the court is satisfied that this course is desirable and will not prejudice the determination of any question involved."

The clear purpose of this rule is to authorise a departure from normal hearing practice to the extent that a respondent may be heard and examined separately; it leaves untouched the question whether a person who is required by law to be made a respondent and is so made, is entitled as of right to give evidence and be heard, whether separately or not. The learned judge had in fact called Deo Rati, who was a respondent, before him alone to interview her and ascertain her mind a wise proceeding in the case of a child of eleven years.

The learned judge then dealt with the facts and pronounced himself as completely satisfied that the magistrate acted correctly and in the best interests of Deo Rati in making the adoption order, and discounted the sincerity of the belated recognition by the appellants of their responsibility to the infant.

On the appeal to this Court, Mr Ramrakha for the appellants again criticised the conduct of the proceedings in the Magistrates' Court. The appellants, he submitted, should have had the full status of respondents as persons liable to contribute to the support of Deo Rati. There should have been a hearing in the full sense of the word and the respondents should have had an opportunity to cross examine the guardian ad litem and the Assistant Public Trustee. Mr Ramrakha submitted that insufficient weight had been given by the courts to the fact that the adopting parents, with their family and Deo Rati, propose to live henceforth in Australia and also to the fact that the adoption would entail a change of religion. As to this latter point it can be said that the report of the guardian ad litem indicates that Deo Rati has never known any but the Christian faith so that the change does not rise from the adoption. We are satisfied that these considerations, with others, were considered in the courts below and neither can therefore be said to raise a question of law so as to make it a valid ground of appeal to the court.

To return to the procedural question, Mr Kermode argued that the appellants had misconceived the nature of adoption proceedings; that they were not in the nature of a trial or contest; that the appellants had no status and even if they did they were given the opportunity to appear and were in fact present; that the report of the guardian ad Warn could be acted on by the court whether or not it contained hearsay—it was a confidential document and not part of the record.

As the proceedings below and the submissions of counsel in this court indicate, it seems that difficulties are being experienced in the matter of the proper conduct of adoption proceedings, and in particular as to the position of the confidential report of the guardian ad litem which he is directed to make in writing to the court by rule 7(3). It may be helpful to point out that similar difficulties have arisen in England, upon similar legislation, and that passages from some of the judgments may provide assistance in Fiji. We will quote some of them.

In J.S. (an infant) [1959] 3 All ER 856 Roxburgh J. said at page 859:—

"So far as the reports are concerned it is necessary to have regard to the Adoption (Juvenile Court) Rules, 1959. Rule 8 provides for the appointment of a guardian ad litem of the infant and r. 9 provides that the guardian ad litem on completing his investigations shall make a confidential report in writing to the court. It seems to me quite plain that the parties have no right to see the reports except in so far as the justices or the judge think fit to disclose their contents at the hearing. On the other hand it must be the duty of the justices in the case of an appeal to forward to the judge's clerk the confidential reports for the information of the statutory court of appeal which exists for the hearing of these cases. Especially must that be so when, as in the present case, the justices' reasons were based mainly on those reports. The justices in my, judgment were quite correct in refusing to forward copies to the appellants but they must send copies to the judge's clerk."

Some inroads into what was said there have been made in later cases. In Re G. (an infant) [1963] 1 All ER 20, Pearson and Ormerod L.J.J. maintained that the parties to a contested application have no right to see the confidential report, except insofar as the judge at the hearing saw fit to disclose its contents; Pearson L.J. said at page 30—

"The word "confidential" must mean at least that the parties are not automatically as of right entitled to see the report or be informed of its contents. Questions may arise as to the use which the judge ought or ought not to make of the report in this or that class of cases, and the extent, if any, to which, and the circumstances in which, and the conditions on which, disclosure of the report to the parties may or should be given, and whether the maker of the report should be consulted as to any disclosure of it. The rules afford no guidance except by using the word "confidential". In the end, however, none of these questions is material in the present case. The judgment shows that the judge read the report and took it into account, but did not not disclose it to the parties. In this court the report was eventually read aloud at the request of at least one of the parties and with the express consent of the other parties and of the maker of the report."

The third judge, Donovan L.J. said, at pp. 28-29:—

"I should add a few observations about the confidentail report. Whether the enabling section, s.1 of the Act of 1958, confers power on the judge to consider and take into account the contents of a report which the parties may not, see is a question which may have to be considered in some other case. It is not an issue in the present case, and the parties have by common consent been acquainted in this court of the contents of the confidential report. In a case where such a report contained allegations against one party having a direct bearing on whether he or she should be allowed to adopt the child or to resist its adoption, it would be obviously unjust not to allow that party an opportunity to meet the allegations."

The recent case of Re M (an infant) [1972] 3 All ER 321 is concerned with the question whether a mother's consent to an adoption had been unreasonably with held; the judgments are primarily concerned with that question and the court made it clear that nothing said on the question of practice and procedure was to be taken as referring to uncontested petitions. Subject to those observations there are passages in the judgments which are of considerable interest. We take the following passages from the judgment of Sachs L.J.:—

At p. 324—

"To justify the procedure adopted on this occasion, which departs so drastically from that which normally obtains in matters dealt with by a county court judge, counsel for the proposed adopters forthrightly submitted that adoption proceedings were so much sui generic that when a judge had to deal with the issue whether a mother was unreasonable in withholding her consent he was free to adopt a procedure wholly untrammelled by normal rules. Counsel for the guardian ad litem supported this submission by painting with persuasive skill and artistry an attractive picture of a benign judge dispensing with care and tact a Solomon type of justice and then comparing him with one compelled to use what she termed the hard process of requiring sworn evidence and having it probed in the customary manner. It was a picture which she submitted accurately protrayed the effect of the Adoption (County Court) Rules 1959, and which would and, should apply to any adoption proceeding whether or not it was a serial number case and whether or not the parties were legally represented. It was the effect, she contended, of rr 9 and 14, conceding that there was nothing further in the statute or elsewhere on which she could rely."

The English rule 9(2) of the Adoption (County Court) Rules 1959, is the same as the Fiji rule 7(3). The English rule 14, which deals with applicants who do not wish their identity to be disclosed, appears to have no counterpart in Fiji. The argument referred to in the last quoted passage resembles that of Mr Kermode before this Court. Later in the judgment Sachs L.J. said that it would be neither practicable nor desirable for the court to give detailed directions on these matters (i.e. matters of practice) having regard to the great variety of the facts in individual cases At p. 327 he said—

"Next it is essential that the mother should in advance of any hearing be given notice of any allegations that are being made against her and of any facts on which it is intended to rely in support of the order sought.
Any issue whether she is withholding her consent unreasonably should be heard and determined at a regularly conducted hearing, albeit with as much relaxation of formality as can be achieved; this must in general conform to the normal rules save for the important exceptions made by rr 9 and 14 of the Adoption (County Court) Rules 1959. It is also necessary that it should be so conducted that proper notes and material will be available for an appellate court if either party wishes to appeal. It is wholly wrong that it should be necessary to grope for information in the way that we have had to do in the instant case. Facts put before the judge by parties (other than, generally, the guardian ad litem) should be on oath. The mother is of course entitled as of right to give evidence on oath in support of her case and to controvert facts alleged against her. She is also entitled to challenge evidence given in support of an application—remembering that neither well intentioned but busy directors of social service nor their staff are necessarily infallible."

He continued—

"Another factor is the importance of avoiding any unnecessary secrecy in the proceedings which could lead to their having that behind the back of the person charged' stigma to which Roxburgh J. adverted in that passage in his judgment in Re E (an infant) [1960] The Times, 24th March to which Donovan L.J. subscribed in Re G (TJ) (an infant) [1963] 2 QB, 98. Moreover, as was said in the wardship case of Official Solicitor v K [1965] AC 201, 242 per Lord Devlin:
"It must be remembered that the object of disclosure is not merely to remove a sense of injury that might otherwise result from secrecy, but because secrecy may of itself prevent the point from being fully canvassed and so possibly prevent that course being taken which, if the full facts were known would truly be in the interests of the ward.'
That passage is no less applicable to adoption cases, though nothing in it should be construed as minimising the importance of maintaining the confidentiality of such parts of the guardian ad litem reports as might, if disclosed to the mother herself, harm the interests of the infant."

At a later stage of his helpful judgment Sachs L.J. said that the discretion as to what should be disclosed and to whom and how the disclosure should be made is one vested in the judge and, as long as the present rules continue in operation, can only be decided by the judge. Finally we quote from the judgment of Stamp L.J., who, after dealing with the difficulties faced by a judge in deciding the degree of confidentiality which should be accorded to a report, said at p. 331—

"It may be based, for example on the ground that the mother has persistently ill-treated the child. I agree that the issue whether the court should dispense with a consent ought to be tried, so far as consistent with r. 9, in a regular way, and I think the burden of showing that the consent of a parent withholding consent ought to be dispensed with ought to be placed squarely on the party so contending. It must be incumbent on the party applying for the consent to be dispensed with to establish by evidence at the trial of the issue the facts on which he relies. And unless the party withholding consent has been forewarned of what that evidence will be that party ought in my judgment to be granted an adjourment."

It is to be gleaned from these questions that the question of the confidential nature of the report of the guardian ad litem is one for the discretion of the judge or magistrate, to be exercised judicially, but which with due regard to the undesirability of secrecy, and the necessity of informing parties applying for or entitled to oppose the adoption, of matters which are adverse to them in the report. The paramount consideration remains the welfare of the infant. Procedure, at least in contested cases, should be as close to normal court procedure as practicable, except to the extent that the rules may otherwise require or authorise. It is in our opinion clear that the judge or magistrate is fully entitled to give such weight to the report, in conjuction with any other evidence, as he thinks fit: otherwise there would be no purpose in the procedure prescribed.

In the present case, in the Magistrates' Court, if there was a breach of any of these principles it lay in the refusal of an adjournment to Mr Chauhan (if he was in fact taken by suprise) and the making of the adoption order without hearing the opposing evidence. Whether it was in fact a breach, depends upon whether the appellants had any right to be made respondents to the application, and while we do not dissent from the learned judge's view that the defect, if any, was cured in the Supreme Court, we think it right to decide the question of the locus standi of the appellants. This turns on whether the appellants can show that, upon the true construction of Section 7(1) of the Adoption of Infants Ordinance (Cap. 48) set out above, they are or either of them is a "person who is liable by virtue of any" agreement to contribute to the "maintenance (of the said infant)" "liable" means that an enforceable obligation to contribute must be proved. At the material time appellants can point only to pare 3 of the said consent order of 18th December, 1962, set out above. The occupancy has continued down to the present time but at no time have the appellants looked after or cared for the said infant as required by paragraph 3. The clear fact is that, except for some early payments, in lieu, the Public Trustee, with the expenditure of estate funds, has always maintained the said infant and appellants have done nothing to fulfil their obligation so far as it concerns the said infant.

Para 3 primarily creates a right in the appellants to occupy the said house for an undefined term. The consideration for the granting of such occupancy is (inter alia) the caring for and looking after the four infant children of the deceased. If the obligation is performed then the children will be maintained, but, if not performed, apart from questions of termination of the occupancy, the only remedy is in damages. Such damages would not be maintenance for the said infants but would be assets in the estate. The obligation to maintain the said infants, or any of them, thus falls squarely on the estate if appellants make default which is exactly what has happened in the instant case so far as concerns the said infant. The estate was left with only some possible remedy against appellants in respect of the said "occupany" so we turn deal with that to see whether or not it will help appellants.

For some eight years past the Public Trustee has accepted as sufficient performance of the said consideration the fact that appellants have cared for and looked after the infants other than the said infant. No attempt has been made to enforce any obligation so far as it relates to the said infant. Both parties have long acquiesced in an occupancy for which a lesser consideration than was due was regularly accepted as sufficient performance; and, undoubtedly the actions of the Public Trustee led appellants to believe they had sufficiently performed the consideration for their continued occupancy over this very long period. In our view the principles laid down in Central London Property Trust Ltd. v High Trees House [1956] 1 All ER 256 could in the admitted circumstances of this case be invoked by appellants if sued for damages, or if default was alleged against them in respect of the terms of the occupancy.

Further it would seem that a proper finding on the facts is that there was a failure on the part of appellants to look after the said infant and that the Public Trustee accepted responsibility in terms of the said pars 3. For these reasons we are of opinion that, at all times material to these proceedings appellants were not persons who come within Section 7(1) (Supra). Accordingly they were not entitled to be made respondents to the application by virtue of Rule 4(3) (Supra).

It follows from what we have said that this appeal must fail and it is dismissed with costs.

Appeal dismissed