ADOPTION OF CHILDREN

COURSE: LAW 3202 FAMILY LAW II ASSIGNMENT

LECTURER: MRS. ALEXIS DOWNES-AMSTERDAM
GROUP ASSIGNMENT
Contents
Group members...............................................................................................................................1
Introduction.....................................................................................................................................3
Eligibility to be Adopted.................................................................................................................4
Eligibility to Adopt...........................................................................................................................7
Requirement of Parental Consent..................................................................................................8
Safeguarding the giving of parental consent...............................................................................11
Principles governing adoption applications.................................................................................12
Orders that a court may make......................................................................................................15
Effects of an adoption order.........................................................................................................18
Bibliography..................................................................................................................................20
Statute...........................................................................................................................................20
Cases..............................................................................................................................................20
Books..............................................................................................................................................20

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Introduction

According to Professor Cretney in Principles of Family Law, adoption is the process whereby the
court extinguishes the parental links between a child and his natural parents and creates
analogous links between him and the adopters. 1As a consequence of this, an adoption order is an
order giving parental responsibility for the child to the adopter(s). It extinguishes the parental
responsibility of the child’s parents, and any other person with parental responsibility. 2 The
essential consequences of an adoption order were aptly captured by Baroness Hales in the case
Re P3, where she explains that:
“an adoption order does far more than deprive the birth parents of their parental
responsibility for bringing up the child and confer it upon her adoptive parents.... It
severs, irrevocably and for all time, the legal relationship between a child and her
family of birth. It creates, irrevocably and for all time (unless the child is later
adopted again into another family), a new legal relationship, not only between the
child and her adoptive parents, but between the child and each of her adoptive
parent’s families.”4
This paper examines the laws governing adoption, with particular reference to Guyana.
The paper discusses eligibility to be adopted and to adopt, issues surrounding the need for
parental consent to an adoption order, the legal principles governing adoption, and finally,
orders that a court may make the effects thereof.

1
SM Cretney, Principles of Family Law, (4th edn, London: Sweet and Maxwell, 1984) 417;
2
Paula Davies et al, “Palgrave MacMillan Law Masters Family Law,” (8th edn, MacMillan Publishers Ltd, 2013) 120:
3
[2008] UKHL 38, para 85
4
Cited in Johnathan Herring, Beginning Family Law (Routledge 2015), pg 666

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Background

Prior to adoption being brought under the formal legal system, there existed a number of
situations in which a child is raised by someone other than its natural parents. For example,
if a child is orphaned or abandoned by its natural parents, a relative or another concerned
adult may choose to raise that child as their own. Bromley has described this kind of
arrangement as a de-facto adoption or control over the child. However, since such
relationships were not recognized by law, there was not guaranteed certainty or
permanence to such an arrangement. Consequently, at any time, the child’s natural parent
or legally appointed guardian would still have the authority to exercise control over the
child. Although a court may eventually rule that it is in the child’s best interest to remain
with its de facto parents, such a relationship can never enjoy the security guaranteed by an
adoption order as there will always be the possibility of losing the child to another person
who has legal rights to the child.5

Moreover, in the absence of adoption laws, the best option would be for the court to
appoint the de facto parents as legal guardians of the child. This was so because, in English
law, the relationship between parent and child was inalienable and could not be severed
and conferred on another person. Thus, persons were hesitant about raising children that
were not their own.6

All of this led to the enactment, in England in 1926, of the Adoption of Children Act. This
Act was considered revolutionary in that it facilitated the application for an adoption order,
which, if granted, would have the effect of entirely breaking the legal relationship between
parent and child, and replacing it with a legal relationship between the child and its
adoptive parents. For all intents and purposes, therefore, the adopters legally step into the
shoes of the natural parents. In other words, despite the lack of a blood relationship, the
legal consequence of an adoption order is to create a relationship that closely mirrors that

5
P.M. Bromley, “Family Law” (Butterworths & Co. Ltd, 1966); pg 401
6
Ibid, pg 402

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of biological parent and child. This Act has been subject to several amendments before
being consolidated into the Adoption Act of 1958.7

Today, Adoption laws in the Commonwealth Caribbean remain grounded in English law.
These laws are not uniform across the various territories, but gives varying powers to
adoption or childcare boards to deal with preliminary issues, though the court remains the
final arbiter and will make an order it believes to be in the best interest of the child.8

In Guyana, the current Adoption of Children Act was passed in 2009, and amended by Act
no. 10 of 20119. Former adoption laws did not permit Guyanese living abroad to adopt
children living in Guyana. However, the current legislation allows for adoption by a
Guyanese living abroad, or a former Guyanese who has acquired citizenship of another
country, or a non-Guyanese. Specific provisions of this Act will be examined in greater
detail in this paper.

Eligibility to be Adopted

7
Ibid
8
McDowell Z, Elements of Child Law in the Commonwealth Caribbean. The University of the West Indies Press: 2000
9
Laws of Guyana Cap 46:04

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The Adoption of Children Act Cap 46:04 makes certain provisions regarding the eligibility to
be adopted in Guyana. Section 16 of the Act, in particular, provides that “subject to the
provisions of this Act, a person may adopt a child who –
(a) is under the age of eighteen years;
(b) has never been married; and
(c) resides in Guyana.”
In addition to these requirements, there is also the requirement of the consent of the parents and
in some cases the consent of the child. These requirements will now be examined in turn.

(A) Under the Age of Eighteen Years:

The general rule is that a person may only adopt a child, i.e., someone who has not attained the
age of majority. In Guyana, this age is that of 18 years old: s. 16 (above). This requirement is
best illustrated in the case of Re D (a minor).10 In that case, the foster parents of D, a minor,
applied to adopt D six days before he attained the age of majority. The Court of Appeal held that
there was no requirement that a benefit during minority was a condition precedent to the making
of the order. It followed that the fact that D was within a few days of attaining his majority did
not preclude the making of the adoption order. Balcombe LJ cited with approval the judgment of
Thorpe J when he said:
“The fact that a child may be within a very short time of attaining his or her majority is not, in
my judgment, to preclude the carrying out of the balancing exercise having regard to all the
circumstances of the case.”

(B) Never been Married

A child who has been married before can not be adopted under the laws of Guyana.

(C) Resides in Guyana

In Re W11, the applicant, who was a British citizen living in England, applied to adopt W, her
nephew, who had been born in China in 1968 and who had in 1981 obtained leave to enter and
remain in the United Kingdom as a school student and live with the applicant while doing so.
The judge refused to make the adoption order and an appeal was made. It was held that in
10
[1991] 2 FLR 66
11
1985 3 All ER 449

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determining an application for the adoption of a child who had no right of abode in the United
Kingdom the court would give primary consideration to the need to safeguard and promote the
welfare of the child throughout its childhood. As a matter of policy, however, the court would
balance that consideration against the policy and rules in relation to immigration control.
Accordingly, since there were only ten months remaining of W’s childhood and since there was
no reason why he would not be able to remain in the United Kingdom to finish his studies, it was
clear that the real motive for the adoption application was to safeguard his long-term future as a
British citizen rather than to promote his welfare. The appeal was therefore dismissed on this
ground.
On the other hand, in Re B12, a 14-year-old Jamaican citizen came to the United Kingdom on a
six-month entry permit to visit her grandparents. In order to avert T’s deportation at the end of
this period, her grandparents applied, with her mother's consent, to adopt her, since such an
adoption would have made her a British citizen with the right of abode. The Secretary of State
opposed that application, contending that the adoption would be contrary to immigration policy
and that the court should ignore the benefits of adoption for T since they would arise solely from
a change in her immigration status. The judge rejected this contention and the grandparents
appealed. The appeal was allowed on the basis that such an order would confer substantial
welfare benefits on T during the reminder of her childhood.

(D) Consent
Section 19 of the Adoption of Children Act specifies the persons from whom consent is
required for the adoption of a child. Pursuant to that section, consent is required from the
parents of the child, in the first instance. At sub-section (b), it is provided that where the child
was born into a marriage, or within 300 days after the termination of such a marriage,
consent is also required from the husband or former husband. Moreover, where the child was
born out of wedlock, the consent of the father is also required; or, where the child had a legal
guardian, the consent of that person is required. Finally, every person who is liable by virtue
of an order of agreement to maintain the child is also required to consent.

12
[1999] 2 All ER 576

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Consents of these persons are required to be filed in the court, but the court may dispense with
the requirement for consent in certain situations. In this regard, section 20(1) of the Adoption of
Children Act provides the conditions under which the court may dispense with such consent.
This will be examined in detail in the following section.
Thus, although consent of the aforementioned persons is a requirement, the Act also specifies for
a number of conditions under which a court may dispense with such consent in the best interest
of the child. For example, in Re R13, the applicant, who was domiciled and resident in England,
applied for an adoption order in respect of the respondent, who was about twenty years old and
who fled from her country of nationality. The respondent’s parents remained in the country
which she fled. The evidence did not establish that the parents would be mentally incapable of
understanding what was required if they were asked to consent to the adoption of the respondent
by the applicant. It was held that the court had discretion to dispense with the consents of the
respondent’s parents on the basis that there was no practical means for communicating with the
respondent's parents and thus of securing their consent.

Eligibility to Adopt

The Adoption of Children Act also makes provision the eligibility criteria for adopting a child
in Guyana. Specifically, at section 17, a person applying to adopt a child in Guyana must be
older than 18 and younger than 65; and further, that the age difference between the applicant and
the child must not be more than 50 years or less than 17 years. It is also important to note that, at
sub-section (2), the above criteria will not apply if the applicant is the mother or father of the
child. Further, sub-section (3) specifies that the applicant, or at least one of the applicants in the
case of a joint application, must be at least 18yrs older than the child. Finally, at sub-section (4),
the court may dispense with the age requirement in instances where the adoption formalizes an
existing relationship between the applicant and the child, such as a step-parent, relative, or in
other special circumstances to be determined by the court.
Persons applying for an adoption order under the relevant acts must be domiciled in the
particular state or country and resident, although there are some variations to this rule depending
on the legislation of the country in question.14 In Barbados, for example, the Adoption Act
provides in section 14(5) that, "An adoption order shall not be made unless the applicant and the
13
[1966] 3 All ER 613
14
McDowell Z, Elements of Child Law in the Commonwealth Caribbean. The University of the West Indies Press: 2000

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minor reside in Barbados."15 In Guyana, the Adoption of Children (Amendment) Act 1997
provides in Section 4, which amends Section 9 of the Adoption of Children Act, by allowing
an application to be made by “a person domiciled in Guyana, a Guyanese national resident
outside Guyana or a former Guyanese national who has acquired by registration or other
voluntary and formal act (including marriage) the citizenship of any country other than Guyana.”
Further, where the applicant is not domiciled in Guyana, Section 4(b) of the amendment
provides that the applicant shall "furnish the court with a certificate from the Guyanese
diplomatic mission or consulate in the country in which he is resident, or such other office or
person as may be prescribed, stating that the applicant is a suitable person to be entrusted with
the child concerned."
In R v City of Liverpool Justices, Ex parte W16, the mother of an out-of-wedlock female child
lived with the child in the grandmother's house. The mother subsequently formed a relationship
with a man X and took the child to live with her and X. The mother later married X but died
some months after. X applied to adopt the child and was successful in his application. The child's
grandmother applied for an order of certiorari to quash the adoption order as there had been no
evidence that any special circumstances prevailed which would have justified the court in
making a decision in X's favour. The court granted the application for certiorari. Donovan J.
stated that:
“There may be special circumstances which would justify an adoption order in this case . . . But,
under the express provisions of Section 2(2) of the Adoption Act, 1950, such an order clearly
cannot be made unless the court is satisfied that such special circumstances do exist, justifying
such an order as an exceptional measure, and I think that the inference here is overwhelming that
this provision was overlooked.”

15
Ibid
16
[1959] 1All ER 337

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Requirement of Parental Consent

“An adoption order terminates the parental status of the birth parents... This means that before an
adoption or placement order can be made either the birth parents need to consent or the court
must determine that the consent of the birth parents is not needed.” 17 In fact, the legislative
provision in Guyana under section 19 of the Adoption of Children Act, as specified earlier.

However, the court may dispense with the consent, if the parent or guardian has abandoned,
neglected, or persistently ill-treated the infant, or has persistently failed without reasonable cause
to discharge obligation of a parent or guardian to the infant, or in any case, cannot be found or is
incapable of giving his consent or his consent is unreasonably withheld. There circumstances
will now be discussed in turn.
Section 11 (1) (a) of the Adoption of Children Act Cap 46.04 provides that the court may
dispense with any consent required if it is satisfied in the case of a parent or guardian of the
child, that he has abandoned, neglected or persistently ill-treated the child. This was seen in
the case of Re P18; where the court dispensed with the need for a mother’s consent to the
adoption of her two children. In this case, the mother placed two of her children in foster care
immediately after their respective births. During that time, she neglected to visit them and failed
to inquire about their welfare. The court held that the mother's act of neglecting her children was
sufficient to dispense with the need for her consent.
Similarly, in the case of Re A,19 the court held that where a parent or guardian had severely or
repeatedly assaulted a child over a three weeks period, it was sufficient to amount to persistent
ill-treatment of the child, therefore dispensing with the need for his consent.
Section 11 (1) (b) provides that the court may dispense with the need for consent in the case of a
person liable by virtue of an order or agreement to contribute to the maintenance of the child,
that he has persistently neglected or refused so to contribute. However, in the case of Re D,20
where a father had failed to provide for his daughter and had neglected to see her for a year, the
court refused to dispense with the need for his consent on the ground that his failure was not
culpable, grave and complete.
17
Johnathan Herring, Beginning Family Law (Routledge 2015) 87;

18
[1962] 3 All ER 789.
19
(1979) 2 FLR 173.
20
[1973] 3 All ER 1001.

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Section 11 (1) (c) provides that the court may dispense with the need for consent 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. This was seen in the case of Re F,21
where the court held that before agreement could be dispensed with on the ground that the parent
'could not be found' it had to be shown that all reasonable and proper steps had been taken. In the
instant case, the court found that all such steps had not been taken since their search for the birth
mother, the applicants had failed to get in touch with the father with whom the mother was still
in contact.
Conversely, in Re W,22 a mother placed her one-week child in foster care. The child remained
with them for 18 months and settled down well. The mother, who was 23 years of age and who
lived solely on public assistance, had put him up for adoption within days of his birth and had
not seen him again until the hearing of the proceedings. She later withdrew her consent to the
adoption of the child. The House of Lords held there was evidence that the mother was
unreasonably withheld her agreement to the adoption of the child as she was in no immediate
position to care for the child and had no good reason to retract her consent.
23
Consequently, in the case of Re D, the father was a practising homosexual. His wife had
divorced him and remarried and the child of the marriage, a boy, aged seven, was living with her
and her second husband who now wanted to adopt the boy. The father of the child objected to his
adoption. The House of Lord held that the father was withholding his agreement unreasonably.
Fourthly, Section 11 (2) of the Adoption of Children Act provides that the court may dispense
with the consent of the spouse of an applicant for an adoption order if it is satisfied that the
person whose consent is to be dispensed with cannot be found or is incapable of giving the
consent or that the spouses have separated and are living apart and that the separation is
likely to be permanent’.

Safeguarding the giving of parental consent

The Court is particularly keen in safeguarding the granting of parental consent because of the
definite and permanent nature of the adoption order. Consequently, ‘consent must be given
unconditionally and with full understanding of what adoption means. A person can consent to
21
[1969] 3 All ER 1101.
22
[1971] 2 All ER 49.
23
[1977] 1 All ER 145.

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adoption either to a specific person or to adoption by the person selected by the Adoption
Agency and approved by the court.’24 In its quest to safeguard the giving of parental consent, the
Court is inclined to refrain from granting the adoption order unless the person giving the consent
fully appreciates the nature and effect of such action.
Thus, where the court is satisfied that that consent has been given, it will not make an order
unless the person giving the consent understands the nature and effect of giving such
consent. Section 13 (1) (a) provides that the court before making an adoption order shall be
satisfied that every person whose consent is necessary under this act and whose consent is not
dispensed with has consented to and understands the nature and effect of the adoption order for
which application is made. This was seen in the case of A.B. v The Social Welfare Officer,25
where the paternal grandmother of two children, aged 5 and 6, applied to adopt them. The natural
mother of the children wished to migrate to Canada to work and wished to have the children
adopted in order to qualify for entry into Canada. The mother saw the children regularly and
expressed an intention to send money for their upkeep if she did go to Canada. The
grandmother’s application was refused by the Social Welfare Board, and she appealed to the
Supreme Court. The court held that the mother had not genuinely desired to permanently
surrender her children to the grandmother since she intended to send money for her children and
did not understand the legal implications of adoption.
Further, section 23 provides, inter alia, “the court before making an adoption order shall be
satisfied that-
(a) Every person whose consent is necessary under this act and whose consent is not
dispensed with, in accordance with section 20 fully understands the nature and the effect
of an adoption order;
(b) A consenting parent understands that an adoption order will permanently deprive him of
parental rights in relation to the child concerned;”

Furthermore, “in any adoption application before the court, the function of the judge is to
determine the proceedings in a manner which will result in the welfare of the child being
protected.”26 In the above case of A.B. v The Social Welfare Officer 27 Stoby CJ elucidates that

24
Johnathan Herring, Beginning Family Law (Routledge 2015);
25
(1960-61) 3 WIR420.
26
Zanifa McDowell, Elements of Child Law in the Commonwealth Caribbean (University of the West Indies Press 2000) 209;
27
(1960-61) 3 WIR 420;

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the child’s interest is paramount. Moreover, notwithstanding the giving of consent by a parent for
the adoption of his/her child, the court is obliged to reject such consent as being invalid where
there is evidence to prove that the parent does not appreciate the legal consequences of an
adoption order. As in the case above it was held that the Court must be satisfied that the natural
parents genuinely desired to permanently surrender their children to another person. As such, the
Court endeavour to safeguard the consent given in the interest of all the parties involved but
especially those of the “new” parents. This requirement for the natural parents to understand the
consequences of their decision is necessary because as aforementioned the ties between the
natural parents and the child are extinguished in favour of the adopted parents when an adoption
order is made and granted.

Principles governing adoption applications

In determining whether an adoption order should be made the court considers various factors. In
practice the court also considers and attaches great weight to the report of the Adoption Board or
Agency. In Guyana, the Adoption of Children Act establishes at section 3 an Adoption Board.
According to section 4 (1), “It shall not be lawful for any person other than the Board to make
arrangements for the adoption of a child” 28 The duties of the Board are laid out in section 5
which provides that:
It shall be the duty of the Board:
a. to receive applications from parents, guardians and adopters in respect of the adoption
of children
b. to make such investigations concerning the adoption of children for the consideration
of the court as may be prescribed;
c. to act as guardian ad litem, of any child in respect of whom an adoption order is
sought.29
Where the Adoption Board has approved of the adoption, the court may grant the application of
the adopter. Before making the order, the court must be satisfied that the Adoption Board has had
sufficient opportunities to observe and assess the interaction between child and adopter in the
home environment as was illustrated in the case of Re Y [1985]30 where the court held that an
adoption order could not be made unless the child had had his home with the applicants for a
28
Chapter 46:04, Adoption of Children Act, 1998 pg. 7
29
“(ibid. pg. 7)”
30
3 All ER 33

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 specified time and the court was satisfied that the Board or local authority 'within whose area the
home is' had been given a sufficient opportunity to see the child with the applicants in the home
environment.31
Specifically, in relation to the requirement that the Adoption Board observes the child and
adopter in the home setting, a distinction is made in relation to resident and non-resident
adopters. The period of observation for adopters residing in Guyana is six months. For non-
resident adopters the period of observation is one month32. This special provision was made due
to the difficulty encountered by non-resident adopters having to leave jobs to be in Guyana for
the duration of the assessment period.
In considering whether to make an adoption order, section 13 (b) the court must be satisfied and
give regard to the religious upbringing of the child.33
There is no statutory duty to consider a child's racial, cultural and linguistic background.
Nevertheless, there are a few cases where those factors were considered by the courts. In the
case of Re N [1990] 34 the child was born in England and her parents were Nigerian. About three
weeks after the child's birth, the mother placed her with foster parents. The foster parents were
white people of British nationality. The question to be considered was whether the security that
adoption would give to the foster parents and the child was offset by the fact that it would clearly
not be in the child's interest for her father to feel the shame and distress that in his culture an
adoption would bring. The court was also bombarded with theories and opinions that emerged
from race relations in America in the 1960s and 1970s that black children should not be placed
with white foster parents. It was held that there was little real evidence, save anecdotal, to
suggest that the fostering of black children with white families was harmful; and there was
evidence to the contrary effect. Further, the emphasis on colour rather than cultural upbringing
could be mischievous and highly dangerous when the welfare of children was being dealt with in
practical terms. Nevertheless, the court refused the adoption but allowed the foster parents care
and control with access rights to the father. This was so because it was seen as being in the best
interest of the child.

31
[1985] 3 All ER 33
32
Chapter 46:04, Adoption of Children Act, 1998 pg. 8
33
“(ibid. pg 13)”
34
1 FLR 58

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However, in the case of Re P [1990]35, the child was born to an Afro-Caribbean West Indian
mother and a white European father and had been with white foster-parents for some 18 months
and was well settled there. The local authority, in pursuance of their ethnic policy, sought to
remove P from his foster parents and place him with black or mixed-race foster-parents. The
judge made an order accordingly and the foster parents appealed. The Court of Appeal affirmed
the judge’s order: he was entitled to take into account the advantages of an ethnically similar
family as well as the disadvantages of movement, and it could not be said that his decision was
“plainly wrong”.36

Furthermore, in the case of Re K [1991]37 the parents of a 6-week-old child handed her over by
private arrangement to the plaintiffs. When the parents changed their minds and sought the return
of the child, the plaintiffs brought wardship proceedings. Although the court found that the
mother wanted the child back and had cared properly for her other children, it held that the child
would be better off with the plaintiffs. The reports of social workers recommending the child’s
return were discounted. The parents appealed against an order granting care and control of the
plaintiffs with a view to adoption.

It was held that the appropriate test was not whether the child would be better off with the
plaintiffs, but whether the natural family was so unsuitable that the welfare of the child positively
demanded displacement of parental responsibilities. Rehabilitation was not unreasonable in the
circumstances and the court had erred in not allowing it to be tested. It was also an error to
discount the social workers’ reports. Even had the parents been entirely unsuitable, the plaintiffs
were not acceptable as permanent caretakers of the child. The court had to consider the welfare
of the child throughout childhood and the plaintiffs were outside the age group considered
suitable for adopters of a baby. Moreover, there were differences of background, language,
origin and religion. There was a detailed procedure for the placing of children and the assessment
of suitable families as adopters. None of the investigation or matching required by the adoption
framework had been attempted and the order had given the plaintiffs a chance to be considered
as adopters when the local authority as adoption agency had already expressed opposition to the

35
1 FLR 96, CA;
36
1 FLR 96
37
1 FLR 57

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child remaining with them. The appeal would be allowed and the order set aside. The wardship
would continue with care and control granted to the local authority with a view to
rehabilitation.38

Orders that a court may make

Adoption order means an order made by a court of law vesting parental rights and
responsibilities relating to a child who is adopted, on the application by the adopter. 39In essence
an adoption order severs the legal ties between a birth parent and the child so that the adoptive
parent(s) become the child’s legal parent(s) throughout life. It should further be noted that the
Act provides for the application for such an order to be made to a judge in chambers.40

An adoption order does not end when a child turns 18 – the child/adult remains a legal member
of his/her new family permanently. Birth parents will always remain the child’s biological
parents, and their history will be important for the child to understand as they grow up, but after
the order is made, they will no longer be the child’s legal parents.

An adoption order can only be made where the court satisfied that every person whose
consent41is necessary and whose consent is not dispensed with 42 fully understand the nature and
effect of the order and will be for the welfare of the child43.

A court of law has the power 44 to either grant or refuse an application for an adoption order. In
most jurisdiction, legislations45enacted by parliament avail the courts with a range of options to
make orders in adoption cases that will be for the best interest of the child. 46 It is also important
to note that by virtue of section 25 of the Adoption Act of Guyana Cap 46:04, the fact that a
child was previously adopted is no bar to a current adoption order to which said child forms the
subject matter.
38
1 FLR 57
39
S 2 Adoption of Children Act Cap. 46:04 Law of Guyana;
40
S 26 Adoption of Children Act Cap. 46:04 Law of Guyana, s 6 Adoption of Children Act Trinidad and Tobago;
41
S. 19 Adoption of Children Act Cap. 46:04 Law of Guyana, s. 11(3) Adoption of Children Act Trinidad and
Tobago;
42
S. 20 Adoption of Children Act Cap. 4604 Law of Guyana;
43
Zanifa McDowell, “Elements of Child Law in The Commonwealth Caribbean,(University of the West Indies
Press, 2000) p 200;
44
S. 26 Adoption of Children Act Cap. 4604 Law of Guyana;
45
Law of Guyana 46:04, Adoption of Children Act Trinidad and Tobago, Adoption Act Barbados;
46
Zanifa McDowell, “Elements of Child Law in The Commonwealth Caribbean”, (University of the West Indies
Press, 2000) p 200;

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Adoption by parents and spouse
Where the spouse is not the natural parent of the child the court may make an order authorizing
the adoption of a child by a parent of the child, either jointly or alone with the spouse of that
parent.47
Joint application
The court may make an adoption order where there is a joint application by two spouses
authorizing them jointly to adopt a child48. However, where a single application is made by either
spouse, the consent of the other spouse is required in accordance with s. 21 49Where consent is
not attained once the court is satisfied that;
 The other spouse cannot be found: In Re F (R) (an infant)50 the court held that before a
court could dispense with consent on the ground that the parent could not be found, it had
to be shown that all reasonable and proper steps had been taken to locate the parent.
 The other spouse is incapable of giving consent, the court may make an adoption order.
This was illustrated in Re R (adoption)51where the child's parents lived in a totalitarian
country and due to the difficulty in communicating with them, the court held that their
consent to the adoption could be dispensed with. A similar situation arose in the case of
Re L (Adoption: parental agreement)52
 The spouses have been separated and are living apart, and the separation is likely to be
permanent as in Re W.M (adoption: non-patrial)53.
A male alone applicant to adopt a female:
In most jurisdiction the courts tend to refuse to grant an order where there is a male alone
applicant to adopt a female 54only in special circumstances. This was illustrated in R v City of
Liverpool Justices, Ex parte W55where the court granted the child’s grandmother an order of
certiorari to quash the adoption order from a man X who was living with the child’s mother who

47
S 14 Adoption of Children Act Cap. 46:04 of 2009;
48
S 15 Adoption of Children Act Cap. 46:04 of 2009;
49
S 21 Adoption of Children Act Cap. 46:04 of 2009 states that once the court is satisfied that; the other spouse cannot be
found, the spouse is incapable of giving consent or the spouses have been separated and are living apart, and the separation is
likely to be permanent;
50
[1969] 3 All ER 1101;
51
[1966] 3 All ER 613;
52
[1987] 1 FLR 400;
53
[1997] FLR 132;
54
S. 18 (2) Law of Guyana 46:04 S. 11(2) Adoption of Children Act Trinidad and Tobago, s.14(2) Adoption Act Barbados;
55
[1959] 1 All ER 337;

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subsequently died. Donovan J. stated that “there had been no evidence that any special
circumstances prevailed which would have justified the court in making a decision in X’s favor.”
Child age twelve (12) and over
The child’s consent is needed for an order to be made where a child is twelve years or over
except where the court is satisfied that the child is incapable of giving his/her consent to the
making of the order it may dispense with that consent.56
Child below the age twelve (12)
The court may not make an adoption order for a child who is below the age of twelve who the
court considers to be of sufficient degree of maturity to form a view and who, after been
counseled duly informed of the effects of the adoption order and the effects of his /her consent to
the adoption withholds his/her consent.

Interim order for custody

An interim order is defined as “an order that is made by either the adoption Board or the court,
temporarily or until the hearing and determining of the matter.” 57The court may make an interim
order for custody58 where upon the application for and adoption order, the make of such order
would be unlawful by virtue of s. 18(2) or (3) by giving custody of the child to the applicant on a
probationary period not exceeding two years upon the terms and conditions for maintenance,
education, supervision and the welfare of the child and otherwise as the courts think fit.
The court may by a further order extended period where the probationary period granted was less
than two years but to a period not exceeding two years in all.59

Effects of an adoption order

An adoption order ordinarily terminates the rights and responsibilities of the natural parents to
the child as illustrated in the case of Hitchcock v W.B & F.E.B60. In that case Lord Goddard
stated that:

56
S. 18 (3) Adoption of Children Act Cap. 46:04 Law of Guyana
57
Adoption of children Act Cap 46:04 No. 18 of 2009 sec 2
58
S. 24 Adoption of Children Act Cap. 46:04 Law of Guyana

59
S. 24(b)Adoption of Children Act Cap. 46:04 Law of Guyana

60
[1952] 2 ALL ER 119 at 121-22;

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“[…] it is an order of the most serious description as it removes the child once and for all from
his natural parents and gives him to the adopted parents as though they were and always had
been the natural parents…once the adoption order is made the parents can never see their child
again, unless permission of the adopting parents.”
In other words, the legal rights, responsibilities, obligations and liabilities flowing from the
relationship between the child and his natural parents or guardians automatically ceases or
extinguishes. As a result, it permanently terminates any existing parental responsibility of the
natural parents.61
The death of an adoptive parent does not restore the rights of the natural parents.62Adoption
creates the same rights and responsibilities between a child and adoptive parents as existed
between natural parent and child: s. 2763It is based on this reason that the courts should exercise
due care in accepting an application from someone who is related to the child by blood and who
is not its parent.
With regards to rights to property, the general rule is that an adopted child has the right to benefit
from the estate of the adopter in the same manner as the adopter's natural children: s. 32 64.
Conversely, adoptive parents can inherit the property of an adopted child who predeceases them.
Moreover, section 33 provides, inter alia, that an adopted person, for the purposes of wills and
intestacy, shall be deemed to be related to any other person being the child. When an adoption
order is made, an entry will be made in the Adoption Children Register with the word 'adopted'
and a new birth certificate can then be issued with the child usually taking the adopter's surname.
S.2965

61
P.M. Bromley, “Family Law” (Butterworths & Co. Ltd, 1966);
62
Ibid;
63
S. 27(1) Adoption of Children Act Cap. 46:04 of 2009 states that the rights and duties of adoptive parents, including their
rights in relation to the marriage of an adoptive child. However, if the adoption order is made in favor to a person who is
married to a natural parent of the child who is the subject of the matter, such parental rights and responsibilities shall not be
extinguished which were vested to the natural parent to whom the adopter is married immediately before making the order;
64
S 32 Adoption of Children Act Cap. 46:04 Law of Guyana; provides that where at any time after the making of the adoption order, the
adopted person or any other person dies intestate in respect of any movable or immovable property, whether by instrument inter vivos or by
will (including codicil) expressed or implied, unless the contrary intention appears, that property shall devolve in all respects as if the adopted
person were the child of the adopter born in lawful wedlock and were not the child of any other person;
65
S 29 Adoption of Children Act Cap. 46:04 Law of Guyana; that the adopted child may use the adopter’s surname unless ordered otherwise by
the court. However, where an adopter is the spouse of a natural parent, the child shall use such surname as the court order. Where the child is
sufficient age and maturity and wishes to express his/her view on the matter of his/her surname the court shall consider the view of the child as
regard shall be had for right of the child to preserve the child’s identity.

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However, it is important to note that the court in arriving at a decision to make an adoption order
must take into consideration all the circumstances of the case and give great attention to the need
to protect and preserve the welfare of the child. Additionally, the court must also carefully
ascertain the feelings and wishes of the child with regards to the child's age and understanding.

Bibliography

Statute
1. Adoption of Children Act Cap 46:04
2. Marriage Act Cap 45:01
3. Adoption Act of Barbados Cap. 212 of 1955-19

Cases
A.B. v The Social Welfare Officer (1960-61) 3 WIR 420;
Hitchcock v W.B & F.E.B [1952] 2 ALL ER 119 at 121-22

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Re A (1979) 2 FLR 173
Re B [1999] 2 All ER 576
R v City of Liverpool Justices, Ex parte W [1959] 1All ER 337
Re D [1973] 3 All ER 1001
Re D [1977] 1 All ER 145
Re D (a minor) [1991] 2 FLR 66
Re F [1969] 3 All ER 1101
Re K [1991] 1 FLR 57
Re N [1990] 1 FLR 58
Re P [1962] 3 All ER 789
Re R [1966] 3 All ER 613
Re W 1985 3 All ER 449
Re W [1971] 2 All ER 49
Re Y [1985] 3 AER 33

Books
 Johnathan Herring, Beginning Family Law (Routledge 2015)
 Paula Davies et al, “Palgrave MacMillan Law Masters Family Law,” (8th edn,
MacMillan Publishers Ltd, 2013)
 P.M. Bromley. “Family Law” (Butterworths & Co. Ltd, 1966)
 Zanifa McDowell, Elements of Child Law in the Commonwealth Caribbean (University
of the West Indies Press 2000)
 SM Cretney, Principles of Family Law, (4th edn, London: Sweet and Maxwell, 1984)

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