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31
Lady Astor very kindly put me in touch with Mr. J. F. W.
Galbraith, K.C., M.P., who was responsible for the Act of 1926.
This unfortunately produced nothing to solve the difficulty.
The Society seemed to want to make the adoption appear legal.
As this adoption had been made before the Act of 1926 it
was covered by the decision of Humphrys v. Polak (1901)
2 K.B. 385, which states that " the mother of a bastard child
cannot by contract transfer her right of custody to another
person, and a contract transferring her rights to another person
is invalid."
In correspondence with Mr. Galbraith my view on the matter
was set forth in the following letter: —
" With regard to the case under consideration, in view
of the ruling of Humphrys v. Polak (1901) 2 K.B. 385, I
propose to throw the child back on the National Society on
the grounds that their contract is invalid, but I was raising
the point, as one which seems to me should be dealt with
under the Adopting Act.
" All adoptions are undertaken—I think we may agree
without exception—on the basis that the child is normal at
the time of its adoption, but in the case of a mentally defective,
the very definition strikes the root of the matter; the
condition being defined as one being present at or soon after
birth. As these manifestations do not show themselves—
except in the grosser cases—until some time later, it seems
to me that the dice are loaded against the adopting parents.
Though these cases are rare, the issues are tragic. It is
agreed that the adopting parents take a normal child for
better or worse, that is they take all risks with regard to
matters which arise after adoption, but in these cases there
is already present a definite defect, although not obvious
at the time of adoption. This in some cases is ascertainable
by an expert; in others it is not ascertainable until a
later date, but has existed and was present at the time the
adoption took place. Therefore it seems to me that there
should be a loop-hole, in view of the fact that the adoption
has taken place under circumstances which had the adopting
parents been aware of, would have been an absolute bar as
far as the adopting parents are concerned. It seems to me
that this could be got over by some amending clause, as
stated before, that should the child be subsequently certified
as mentally defective by the School Medical Officer or other
certifying Officer, that in itself should be sufficient to cancel
the adoption.