IN RE F.R. (AN INFANT) [1972] 2 GLR 61
HIGH COURT, SUNYANI
Date: 24 MARCH 1972
BEFORE: OSEI-HWERE J.
CASES REFERRED TO
(1) Hitchcock v. W. B. [1952] 2 Q.B. 561; [1952] 2 All E.R. 119; 116 J.P. 401; [1952] 1 T.L.R. 1550;
96 S.J. 448, D.C.
(2) Re K. (An Infant); Rogers v. Kuzmicz [1953] 1 Q.B. 117; [1952] 2 All E.R. 877; 96 S.J. 764;
[1952] 2 T.L.R. 745, C.A.
(3) Re R.M. (An Infant) (1942) 193 L.T.J.7, C.A.
NATURE OF PROCEEDINGS
APPLICATION for adoption by a father of an infant. The facts are sufficiently set out in the ruling.
COUNSEL Mensah Bonsu for the applicant.
Kaleo Bioh, Senior State Attorney, for the respondent infant. K. A. T. Amankwah for the respondent
mother. [p.63] of [1972] 2 GLR 61
JUDGMENT OF OSEI-HWERE J.
This is an application for the adoption of F. R. an infant aged three years. The applicant is the natural
father of the infant and he brings this application alone. The facts disclose that the applicant is employed by the Mim Timber Company as their production manager on a very attractive salary. In August 1968, he married under our customary law Miss Felicia Dwira, and on 10 March 1969, they had an issue, the subject of this application. In July 1971, the marriage broke down and Miss Dwira had to leave the matrimonial home. The marriage was subsequently dissolved.
In September 1971, the applicant got married to one Miss Helena Grace Hagan who now lives with him at Mim. The infant has been living with the applicant since July 1971. The applicant who is an expatriate (and not a citizen of Ghana) brings this application to adopt the infant to enable him to bring her up in a deserving manner. Even though the mother has withheld her consent the applicant prays the court to dispense with her consent as it is being withheld unreasonably. The applicant gives as some of his reasons in inviting the court to dispense with the mother’s consent the fact that the mother is not in any gainful employment and that the environment of her living condition will not be conducive to the proper upbringing of the infant who has, since her birth, been accustomed to living in a bungalow and being fed on European diet. The mother, not unnaturally, opposes the application and maintains that her consent has not been unreasonably withheld. It has been urged on her behalf that she is now trading with her mother and that with her family background she will be capable to bring up the child in a fitting manner.
Counsel for the applicant referred the court to section 7 of the Adoption Act, 1962 (Act 104), and
submitted that it is mandatory on the court to postpone the determination of the application and make an interim order for a period of six months in accordance with the provisions of section 6 of Act 104.
Counsel, therefore, invited the court to make an order giving the custody of the infant to the applicant for a period of six months. I do not think that section 7 of Act 104 imposes any mandatory obligation on the court to make an interim order in all cases merely because the applicant is not a citizen of Ghana. Section 6 of Act 104 under which section 7 draws its strength is itself discretionary. It seems to me, therefore, that it is only when the court has thought it fit to make an interim order that it will be required to make the order for six months in the case of the applicant. The making of such an interim order is under section 6 (3) subject to the overriding provision that all such consents as are required for an adoption order shall be necessary.
From the documents filed it is clear that the applicant qualifies to apply for an adoption. Section 5 (1) of Act 104 enjoins the court that before it makes an adoption order it shall be satisfied that every person whose consent is required under section 3 of the Act and whose consent is not dispensed with, has consented to and understands the nature and [p.64] of [1972] 2 GLR 61 effect of the adoption order for which the application is made, and in particular in the case of any parent that such parent understands that the effect of the adoption order will be permanently to deprive him or
her of his or her parental rights. It is for this reason that it has been recognised that an adoption order is of momentous and grave effect and it should not be lightly made. The law requires that an adoption order shall not be made except with the consent of every person who is a parent of the juvenile. Miss Felicia Dwira, who is the mother of the juvenile, withholds her consent and that should normally settle the application. The court, however, is empowered, as noted before, to dispense with the consent of any parent of the juvenile if that consent is unreasonably withheld. The applicant invites the court to rule that the consent is unreasonably withheld.
The factor to be considered when determining whether consent has been unreasonably withheld is the test of the attitude of the person dissenting and not, as in guardianship or custody cases, the welfare of the infant. This was the principle enunciated in the English decision of Hitchcock v. W.B. [1952] 2 All E.R.
119. There it was laid down that if a father had an honest desire to keep his child, and could contribute to his up-keep, he could not be said to be withholding his consent unreasonably, notwithstanding that he had no home immediately available for the child. It is the father’s obligation to maintain and bring up his child so that the mere fact that a mother will not be in a position to do so will not amount to withholding the consent unreasonably. Indeed in Re K. (An Infant); Rogers v. Kuzmicz [1952] 2 All E.R. 877, C.A., it was held that the withholding by a parent of consent to an adoption could only properly be held to be unreasonable in exceptional cases. I do not think that there is anything exceptional, where a juvenile is to be adopted, for the mother to say in effect that she wishes to bring up her child according to her station of life.
As noted before the applicant is a sole applicant and as such he has another hurdle to clear before an
adoption order can be made in his favour. For, by section 2 (2) of Act 104, an adoption order shall not be made in favour of a sole applicant who is a male unless the juvenile is a son of the applicant or the court is satisfied that there are special circumstances which justify as an exceptional measure in making of an adoption order. It is clear from these provisions that where, as here, the juvenile is a female the court must be so satisfied in terms Of section 2 (2) of Act 104 before an order can be made. I do not find any exceptional circumstances here other than that the applicant wishes to do his duty to his child which he is obliged by law to do. In re R. M. (An Infant) (1942) 193 L.T. J. 7, C.A., it was held that the fact that the application is the putative father is not enough in making such an order.
I quite agree with counsel for the mother that the cases quoted by the applicant’s counsel are not apposite as they all relate to the guardianship or custody of infants. The court can, in my opinion, make a deserving interim order where the applicant has established a prima facie [p.65] of [1972] 2 GLR 61 case that an adoption order can be made. I am unable to accede to the application as the mother refuses her consent and that consent is not unreasonably withheld. I commend the deserving feelings the applicant has for his daughter and I feel the greatest sympathy for him. But, in a matter of this sort, the mother by nature has rights which only in very special circumstances is she to be debarred from using.
There is always another jurisdiction in the court by which the court can regulate the custody and control of infants and that is the jurisdiction on dealing with wards of court. In that jurisdiction very different considerations arise. I only say this to show that the court is not without resources even if the worst should happen. In the meantime I hold that this application cannot, for the above stated reasons, be allowed and I accordingly dismiss it.
DECISION
Application refused.
S. O.
