A PECULIAR CASE.

Star (Christchurch), Issue 11506, 30 September 1915, Page 6

A PECULIAR CASE.

ADOPTING ILLEGITIMATE CHILDREN. IS PUTATIVE FATHER LIABLE ? I.KCAI. A HUU.M IiNT IN COURT. An iniorosfci jii* legal point cropper up in a cuse heard at the Magistrate':Court this morning, before Mr If. W. Bishop, and argument took place as t( whether the putative father v/as st.il liable to make payments under ai affiliation older, after the child hat be.en loyally adopted. The positioi: arose out of a civil claim. by llenriett; - Margaret Nelson against Jmucs M'Nair. of J/ooston, and .John M'Nair, formerly of Christcluiroh and now of Nelson for arrears under an affiliation order Mr L. Dougali appeared for the plaini ill' and Air A. T. .Donnelly for the defendants. In the statement of claim the plain tiff set out that by an order made ir the Magistrate's Court at Christehurcl ou April 2, 1915, in case of Nelson v M'Nair, John M'Nair was adjudget tho putative father of the child, ant was ordered to pay the sum of 7s 6c per week to the plaintiff in respect oi tho maintenance of tho child, and thai the defendants entered into a bone to the Public Trustee in the sum oi I£oo that tho order would bo complice with. The order had not been complied with, and the arrears amounteo to £lB ss, which sum the plaintifi claimed from James M'Nair, the bondsman. Mr Dougali said that John M'Naii was the father of the child, arid James M' Nair was the father of John M'Nair. and had entered into a. bond that son would comply with the order. They had been unable to find John M'Nair. to serve him with a summons, so in default of him he was proceedling against James M'Nair ifor the amount of the arrears. Mr Donnelly admitted the arrears and tho foimalities, and said that the was one of considerable novelty and importance. Oh May 24, 1915, six weeks after the affiliation order was made, a legal order of adoption was made at Waimate. Since the date of that order maintenance had heeil mainly collected from the bondsman, and he (Mr Donnelly) understood it went to the adopting parents. When the order was put through in May, notice of the application of the order was given to the putative father of the child, but not to tho bondsman, who did not know of the existence of the order until last week. Mr Donnelly believed that the money claimed, if obtained from the bondsman, would go to tho adopting parents, and he also understood tint the position had been fully explained to the Magistrate who made the order. The question was whetjher tho bondsman was legally liable to pay to the adopting parents this money, which really resolved itself into a bonus or premium. He ouoted Section 21 of the Infants Act and then Section 12 of the Destitute Persons Act, and submitted that the latter could not have the effect of repealing Section 21, the operation of that section (21) only being applicable if the child became absohitely destitute, in which case the father would become liable again. If Section 12 was not read alongside Section 21, it followed that the position indicated must arise. Since prima facie the child was being adopted, he submitted that no maintenance was due to the mother. A ser><v rated woman, he said, who returned to Tier husband snd lived with him again, could not sue for arrears of maintenance. and the present case was on a parallel with that position. It should also be remembered that no one would pnv a premium for the adoption of a child, if that person could also be sued for maintenance. Mr Bishop said that he was inclined to_ concur with Mr Donnelly's view, and said that adoption might resolve itself into a business if the adopting parents knew that they were taking over sixteen years' contributions from the putative father in addition to the premium. It was a curious thing that the provisions of the Act gave the child a new status, yet the old status was kept alive. Mr Donnelly submitted that such a position only existed in the ca.se of the child becoming destitute. Mr Bishop said he thought Mr Donnelly was right in that contention. Mr Donnelly repeated that the alteration of tho position had been made without the knowledge of tho bondsman, who had therefore been entered into a contract which he never made. Mr Dougali said that he relied on section 12 of the Destitute P/ersons Act and simply sued in a civil way for the recovery of the arrears from the bondsman in the absence of the putative'father. If Mr Donnelly's argument held good it seemed that the putative

father's liability was released altogether. _ Air Bishop: Certainly, unless the child becomes destitute. It looks as if the adopting parents had agreed to receive the putative father's contributions by way of premium. In that case, if sll tho facts were before me, I know I'd never make an order. Air Donnelly .said that, he understood all tho facts were before the Magistrate who made the order when it was made. Air Bishop: If that's so, Magistrates - will want to be guarded against enabling adopting parents to get outside the provision of the Act by accepting a running premium. The whole ease however, is very novel, and personally I do not think section 12 sufficiently covers tho ground. I will give Mr

! Dougall the rijjht of appeal. ■ Air Dougall said lie was acting for j tlie solicitors who had the case at ' Waiiiiate, and ho would place the position before them. I Air Bishop said that the question j might, arise in his own cases, and in the futtiro such a complication would have to be guarded against. He thought section 12 was only intended to guard against the child's destitution, giving it a, sort of double right. It raised an important question as to how far .Magistrate's could carry the protection of adoption orders, and whether as a matter of policy it should be made a condition that the affiliation order was cancelled when the adoption order was made. He would suspend judgment while Mr Dougall got the papers from Waimate, and he would then see whe- j ther tho contributions had been fixed by way of a premium. Personally he was concerned about the possibility in future of secret premiums, unless Magistrates made it a condition that the affiliation order should bo cancelled when tiie adoption was made. __ In any caso, he would defer further discussion until the papers were received from Waimatc.