Section 21 of the Adoption of Children Act (Chapter 275) allows an adoption to proceed without a consent that would otherwise be required.
The Court may, by order, dispense with the consent of a person (other than the child) to the adoption of a child where satisfied that —
(a) after reasonable inquiry, the person cannot be found or identified; or
(b) the person is in such a physical or mental condition as not to be capable of properly considering the question whether he should give his consent; or
(c) the person has abandoned, deserted or persistently neglected or ill-treated the child; or
(d) the person has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent or guardian of the child; or
(e) there are any other special circumstances by reason of which the consent may properly be dispensed with.
Reading the grounds
| Ground | What must be shown |
|---|---|
| (a) Cannot be found or identified | Reasonable inquiry has been made and failed — not mere absence of contact |
| (b) Not capable of considering | A physical or mental condition preventing proper consideration of the question |
| (c) Abandonment, desertion, neglect or ill-treatment | Neglect and ill-treatment must be persistent; abandonment and desertion need not be |
| (d) Failure to discharge obligations | At least one year, and without reasonable cause |
| (e) Other special circumstances | Circumstances by reason of which the consent may properly be dispensed with |
Ground (d) requires “without reasonable cause”. A parent working far from home, in prison, or seriously ill may have failed to discharge parental obligations for over a year with perfectly reasonable cause. Poverty alone is not the kind of failure the paragraph is aimed at — and the Act elsewhere treats support to families as the preferred response: compare section 5(1)(f) of the Lukautim Pikinini Act 2015.
Ground (c) draws a distinction. Abandoned and deserted stand alone; neglected and ill-treated must be persistent. A single lapse is not enough for the latter two.
Whatever the ground, the discretion is exercised under section 5 — the welfare and interest of the child as the paramount consideration — and dispensing with a parent’s consent permanently ends their legal relationship with the child under section 28.
“Any other special circumstances by reason of which the consent may properly be dispensed with” is deliberately open, but the word “properly” confines it. It is not a general power to override an objecting parent because the adopters would do better.
Note also what section 21 does not reach: the child’s own consent. Subsection (1) applies to a person other than the child. A child of 12 or over is dealt with by section 22, which has its own test.
Section 21(2) — before any application is made
In order to facilitate the making of arrangements with a view to the adoption of a child, the Court may, on the application of the Director, make an order under this section before an application for an adoption order has been made — and any such order has effect for the purposes of any application for an adoption order that may subsequently be made.
Prospective adopters will not commit to a child whose status is uncertain. Section 21(2) allows the Director to clear the consent question first, so that arrangements can then be made on a settled footing.
It also triggers section 23: where every required consent has been given as a general consent, or has been dispensed with by an order under section 21, the Director becomes the guardian of the child to the exclusion of all other persons.
On the application of the Director, or of the person whose consent was dispensed with, an order made under subsection (2) may be revoked by the Court at any time before the making of an adoption order.
A parent who was absent when the advance order was made — and who could not be found under ground (a), or who was incapacitated under ground (b) — may reappear or recover.
Section 21(3) lets them apply to have the order revoked, restoring their right to be asked for consent. The window closes when the adoption order is made.
They are also protected procedurally: section 11(b) allows the Court to join a person as a party for the purpose of opposing an application to dispense with the consent of a person, and section 10(1)(a) requires at least 14 days’ notice to a person whose consent is required but not given.
Dispensation and the neighbouring provisions
Section 15(1)(b) — the Court is satisfied there is no appropriate person at all. No dispensation is needed; there is nobody to consent.
Section 21 — an appropriate person exists, but their consent may properly be dispensed with on one of the five grounds.
Section 20 — a consent was given but is defective, and the Court may refuse to rely on it.
Where consent is dispensed with and the adoption proceeds, the effect is the same as if it had been given. Where an order is later shown to have rested on improper means, the remedy is discharge under section 13 — available only to the Director or the Attorney-General, and never where discharge would be prejudicial to the child’s welfare and interests.
Sources
- Adoption of Children Act (Chapter 275) — ss 5, 10–13, 15, 20–23, 28
- Lukautim Pikinini Act 2015 — s 5
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.