With reference to the decided cases, discuss the circumstances in which parental

consent may be dispensed with.

An adoption order is one that is final. It has the effect of irrevocably terminating the
childs legal relationship with his birth parents as if he was the child of the adopter. This order is
one of the most serious nature. Once an adoption order is made the natural parents may never
see their child again unless by permission of the adopting parents (Crossley v Crossley). Once
an adoption order is made, the adoptive parents stand to one another in precisely the same
relationship as if these were their legitimate children (Re B (Adoption Order: Jurisdiction to Set
Aside)). Section 15(1) of the Trinidad and Tobago Adoption of Children Act (Adoption Act)
provides for the effect of adoption. However, before granting an order for adoption, there are a
number of legal requirements to be fulfilled and even if these are fulfilled it is still up to the court
to have the final say. One such requirement, which is the core of this essay is the consent to
adoption. In Trinidad and Tobago, the Adoption Act makes provision for consent to the adoption
order by persons whose consents are required in section 11(3) and (4). However the court can
dispense the consent of such individuals in a number of circumstances namely; if an
application is made by one spouse without the consent of the other, if the court is satisfied
that the person whose consent is to be dispensed with cannot be found or is incapable of
giving such consent or that the spouses have separated or are living apart and such
separation is likely to be permanent. It should be noted that in Barbados, there is an additional
ground on which consent may be dispensed with- the parent or guardian has persistently
failed to discharge his or her parental duties in relation to the minor. These will now be
explained in turn.
Parent cannot be found
In Re F (R) (an infant) the English CA 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
steps were taken to locate the parent. Based on the facts of this case, not all the steps were
taken since the adopters in searching for the childs natural mother had failed to make enquiries
from the mothers father with whom she was still in contact. As a result the adoption order was
set aside.
Incapable of giving consent
This phrase incapable of giving consent generally refers to mental incompetence or
some impairment of the mind. In Re R (adoption) this was given an extended meaning where
the childs 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.
Unreasonably withholding consent
The ground of unreasonably withholding consent is the more usual ground upon which
application is made to dispense with consent. In Re W (an infant) the HL held that the test was
an objective one and that unreasonableness and culpability did not mean the same thing. The
issue depends upon whether the reasonable parent, placed in the position of the particular

parent in question would withhold agreement to the adoption. In this case, Lord Hailsham
referred to it as unreasonableness in the context of the totality of the circumstances. Similarly
in Re W, Purchas J confirmed that every case must turn on its own facts, the attitude of the
natural parents and whether they are incapable of caring for the child.
There is also the special case of babies. According to Bainham, rehabilitation is more
likely to be considered where the child has spent in short period of time with the prospective
adoptive parent as is the case with babies. In Re C, a child was 20 months old and the child
was made a ward and attempts made to rehabilitate the child who had lived with his adoptive
parents since birth but not adoption could not go ahead because of illegal payments. In the case
Re K (an infant) the court said that it may dispense with any consent if it satisfied, in the case of
a parent or guardian of the infant, that he has abandoned, neglected or persistently ill-treated
the child. In the case of older children, the case Re F the court said that in applying an objective
test to the question of whether a mothers consent to adoption is being unreasonably withheld,
the court must look at the practical consequences of the making or refusal of the order. In this
case, the mother, who committed offences against the child, withheld consent when the foster
parents sought to adopt the child. The court said in this case that the mother had not
unreasonably refused her consent and that they had to have regard to the practical
consequences of making or refusing to make the order.
Persistent parental neglect and abandonment
Generally abandonment as the grounds of freeing for adoption is not usually a
successful ground as is seen in the Trinidad and Tobago Adoption Act. In Watson v Nikolaisen it
was held inter alia that abandonment connoted conduct that would render the parent liable
under the criminal law, and that in that case the mother had not abandoned the child since far
from leaving it to its fate, she had given it and in whom she had confidence and in doing so the
mother had not parted with her issue or divested herself of parental responsibility towards the
child.
In Re D (infants), the court held that the term persistent neglect was to be understood in
the sense of permanently and it was a question of fact and degree and since in this case there
was not such a degree of permanence in his failure as would deprive a father of his parental
rights. Therefore it seems that there needs to be some degree of permanence as in Re P where
the mothers consent was dispensed with because she parted with her child in the first few
weeks after he was born, never discharged any financial obligations and never made any
inquiries on the child.
Refusal to accept consent- (failure to appreciate the consequences of an adoption order)
In the Barbadian case AB v The Social Welfare Officer Stoby CJ made it clear that the
childs interest was supreme and important. The case also illustrates the point that even if a
parent consents to an adoption of his child, the court will refuse to accept it as a valid consent if
the parent failed to appreciate the legal consequences of an adoption order. In this case since
the mother intended to send money for the children, she was held not to have appreciated the
legal implications of adoption and it was not in the best interests of the child to be adopted.

Conclusion-