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822 SINGAPORE LAW REPORTS (REISSUE) [1994] 2 SLR(R)

Attorney-General
v
Chia Soo Choo

[1994] SGHC 170

High Court — District Court Appeal No 77 of 1993

T S Sinnathuray J
24 June 1994

Family Law — Adoption — Illegitimate child — Consent of certain persons had to be

obtained before adoption order could be made — Whether consent of putative father
required — Whether court had absolute discretion to dispense with his consent —
Factors to be considered in exercise of discretion — Sections 2 and 4(4) Adoption of
Children Act (Cap 4, 1985 Rev Ed)

Words and Phrases — “Parent” — “Liable to contribute to the support of the infant”
— Section 4(4) Adoption of Children Act (Cap 4, 1985 Rev Ed)

Facts
This was an appeal against the decision of the trial judge in the District Court
that the consent of the natural father of an illegitimate child (“the putative
father”) was not required before an adoption order could be made under the
Adoption of Children Act (Cap 4, 1985 Rev Ed) (“the Act”). The trial judge
observed that pursuant to s 4(4) of the Act, there were four categories of persons
from whom consent had to be obtained before an adoption order could be made:
(a) a “parent”; (b) a “guardian” of the infant to be adopted; (c) a person who has
“actual custody” of the infant; and (d) a person who was “liable to contribute to
the support of the infant”. The trial judge held, of the first category, that the
definition of “parent” in s 2 of the Act expressly excluded the putative father.
The trial judge then focussed on the fourth category and held that the putative
father only came within it where he had been adjudged by a court to be liable to
pay maintenance. The Attorney-General appealed.

Held, allowing the appeal:

(1) By the first category of persons in s 4(4) of the Adoption of Children Act,
s 2 of the Act (the interpretation provision) expressly excluded the putative
father from the term “parent”: at [4] and [5].
(2) By the second and third categories of persons, the consent of a putative
father to an adoption order would be required only if he was the guardian of the
infant or had actual custody of the infant: [19].
(3) By the fourth category of persons, the consent of the putative father was
required where he was liable to contribute to the support of the infant. As the
putative father was liable to contribute to the support of the infant by s 61(2) of
the Women’s Charter (Cap 353, 1985 Rev Ed), his consent would be required by
s 4(4) of the Adoption of Children Act: at [18] and [19].
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[1994] 2 SLR(R) AG v Chia Soo Choo 823

(4) Consideration of the position in England before 1950 and s 4(4) of the
Adoption of Children Act read together with s 61(2) of the Women’s Charter
(Cap 353, 1985 Rev Ed) suggested that the words “liable to contribute to the
support of the infant” in s 4(4) should not be taken only to refer to the situation
where the obligation of the putative father has been effected in a court order: at
[15] to [19].
(5) Whilst a putative father had a right to object to the adoption of his child,
the court had an absolute discretion to dispense with the requirement of his
consent: at [20].

Case(s) referred to
M, In re; An Infant [1955] 2 QB 479 (refd)
Roberts v Roberts [1962] P 212; [1962] 2 All ER 967 (refd)
SS, Re [1974–1976] SLR(R) 230; [1972–1974] SLR 631 (refd)

Legislation referred to
Adoption of Children Act (Cap 4, 1985 Rev Ed) ss 2, 4(4) (consd)
Women’s Charter (Cap 353, 1985 Rev Ed) s 61(2)
Adoption Act 1926 (c 29) (UK) s 2(3)
Adoption Act 1950 (c 26) (UK) ss 2(4), 3
Adoption Rules 1984 (SI 1984 No 265) (UK)
Children Act 1989 (c 41) (UK) s 3(1)
Guardianship of Minors Act 1971 (c 3) (UK)
Legitimacy Act 1959 (c 73) (UK)
Matrimonial Proceedings (Magistrates’ Courts) Act 1960 (c 48) (UK) s 2(5)
National Assistance Act 1948 (c 29) (UK) ss 42(1)(a), 42(2)

Soh Tze Bian (Attorney-General’s Chambers) for the appellant;

C J Patel (Dave Shaun Patel & Jim) for the respondent.

24 June 1994 Judgment reserved.

T S Sinnathuray J:
1 This appeal from the District Court raises a question of law of public
interest relating to adoption of children. The question is whether the
consent of the natural father of an illegitimate child (“the putative father”)
is required before an adoption order is made under the Adoption of
Children Act (Cap 4) (“the Act”). The learned district judge, after hearing
arguments from both sides, held that the consent of the putative father was
not required and accordingly there was no need to serve the adoption
petition on him. As a result, there are now two conflicting decisions in the
Subordinate Courts on this matter and this appeal has been brought to
resolve that conflict.
2 The relevant provision is s 4(4) of the Act which provides:
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824 SINGAPORE LAW REPORTS (REISSUE) [1994] 2 SLR(R)

An adoption order shall not be made except with the consent of every
person or body who is a parent or guardian of the infant in respect of
whom the application is made or who has the actual custody or who is
liable to contribute to the support of the infant.

3 The judge observed that the consent of one of the four persons has to
be obtained before an adoption order can be made. They are:
(a) a parent;
(b) a guardian of the infant to be adopted;
(c) a person who has actual custody of the infant;
(d) a person who is liable to contribute to the support of the infant.
4 In the interpretation section, s 2 of the Act, “parent” in relation to an
illegitimate child, expressly excludes the natural father. In his judgment, the
judge observed at 2:
When s 4(4) of the Act is read together with definition of parent it is
clear the consent of the natural father of a legitimate infant (as opposed
to the natural father of an illegitimate infant) cannot be dispensed with.
It is clear that he, ipso facto, has a say in proceedings for the adoption
of the infant. However, subject to certain specific provisions in s 4(4),
the very fact a person is the father of an illegitimate infant deprives that
person of the right to either give or refuse his consent to the adoption
of the infant.
[emphasis added]

5 He then referred to the position of a putative father at common law

which was considered by Denning LJ (as he then was) in In re M, An infant
[1955] 2 QB 479. In his judgment Denning LJ gave as his reason that the
word “parent” was not defined in the English Adoption Act 1950 because
(at 489):
… the law of England from time immemorial looked upon a bastard as
the child of nobody, that is to say the child of no known body except
his mother. The father is too uncertain a figure for the law to take any
recognizance of him except that it will make pay the child’s
maintenance if it can find out who he is. The law recognizes no rights
in him in regard to the child: whereas the mother has several rights …
the only father it recognizes as having any rights is the father of a
legitimate child born in wedlock.

6 The learned district judge then turned to the other categories whose
consent was required and in particular a person “who is liable to contribute
to the support of the infant”. In this context, he referred to s 61(2) of the
Woman’s Charter (Cap 353) which reads:
If any person neglects or refuses to maintain his legitimate or
illegitimate child who is unable to maintain himself, a District Court or
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[1994] 2 SLR(R) AG v Chia Soo Choo 825

Magistrate’s Court on due proof thereof may order that person to pay a
monthly allowance or a lump sum for the maintenance of that child.

7 On this section, he noted that before a putative father could be made

liable for maintenance, it must be proved firstly, that the illegitimate child
was unable to maintain itself; and secondly, that the putative father had
neglected or refused to maintain the child. This led him to conclude that the
liability expressed in s 61(2) was a contingent and not a present liability and
“cannot realistically be considered to be the liability contemplated by s 4(4)
of the Adoption of Children Act”. Thus he states his position at 4–5:
I am of the view [sic] only a person who has actually been ordered by
the court to maintain the illegitimate child under s 61(2) of the
Women’s Charter can qualify to be considered as being a person liable
to contribute to the support of the infant for the purposes of s 4(4) of
the Adoption of Children Act.

8 Mr Soh for the Attorney-General submitted that the learned district

judge had erred in holding that “liable” meant “adjudged liable” and that
“liable to contribute” meant a contingent liability. He drew attention to the
different wording in s 2(4) of the English Adoption Act 1950 which reads:
Subject to the provisions of s 3 of this Act, an adoption order shall not
be made —
(a) in any case, except with the consent of every person or
body who is a parent or guardian of the infant or who is liable by
virtue of any order or agreement to contribute to the
maintenance of the infant;

9 Mr Soh argued that the addition of the words “by virtue of any order
or agreement” in the English provision has narrowed the definition of
“liable” unlike our Act which do not have these qualifying words. As to the
meaning of “liable”, I was referred to the dicta of Sir Jocelyn Simon P in the
English case of Roberts v Roberts [1962] 2 All ER 967. There the court was
considering the meaning of “liability” under s 2(5) of the Matrimonial
Proceedings (Magistrates’ Courts) Act 1960 which reads:
In considering whether any, and if so what, provision should be
included in a matrimonial order, payments by one of the parties in
respect of a child who is not a child of that party, the court shall have
regard to the extent, if any, to which that party had, on or after the
acceptance of the child as one of the family, assumed responsibility for
the child’s maintenance; and to the liability of any person other than a
party to the marriage to maintain the child.

10 In considering the meaning of “liability”, Sir Jocelyn Simon P

observed at 970–971:
[I]t is in a primary sense that ‘liable’ is used as equivalent to
‘answerable for’ or legally amenable to’: see the Oxford English
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826 SINGAPORE LAW REPORTS (REISSUE) [1994] 2 SLR(R)

Dictionary, which cites as an example Blackstone Commentaries, Vol 1,

p 254:
It is reasonable that, wherever [ambassadors] transgress [this
natural and universal rule of justice] there they shall be liable to
make atonement.
We readily speak of a person’s liability in tort, irrespective of whether
judgment for damages has supervened. We say that a man is liable to
maintain his wife and children. None of these pre-supposes an
obligation arising only from judgment or contract or possibly statute,
to which counsel for the wife argues that the words ‘liability’ should be
limited.
11 Mr Patel for the respondent in support of the learned district judge’s
decision first argued that because the Act has expressly excluded the natural
father of an illegitimate child in the definition of “parent” in s 2, he would
also be excluded in s 4(4). However, in the course of the submission,
Mr Patel abandoned this argument, which, it should be mentioned, was the
basis on which the court below had made the decision.
12 Counsel then submitted that “liable to contribute to the support of the
infant” must mean a present or existing liability to contribute as opposed to
a contingent liability. Because s 61(2) of the Women’s Charter provides that
the court “may” order maintenance, therefore there is no existing or current
liability on a person to contribute; it only arises when the court makes an
order. For instance, he said, there could be circumstances where the court
will not make an order: for example, against a natural father who is a
bankrupt, or if he is imprisoned, or is impoverished, or is a minor with no
income of his own. Therefore, if no order is made against the natural father,
he is not “liable to contribute”.
13 As for the meaning of the word “liable” (or “liability”), both Mr Soh
and Mr Patel referred me to legal dictionaries, of cases cited in them, where
the word has been judicially considered. It is sufficient to say that whether
“liable” is to be interpreted broadly or narrowly would depend on the
particular legislation and the context in which it is used. Mr Patel went on
to submit that as “is liable” is different from “may be liable” or “shall be
liable”, in the present case, because of the wording in s 61(2) of the
Women’s Charter where no order has been made the liability has not
crystallised to fit into the context of “is liable to contribute” in s 4(4) of the
Act. In other words, unless s 61(2) is triggered off by a court order, no
obligation arises, and therefore no liability is created within the context of
s 4(4).
14 In considering these submissions, the first point I would make is that
the position of the putative father today in England has improved
considerably from its common law position as was considered by
Denning LJ in 1955. The Legitimacy Act 1959 allows him to apply for
custody or access to his child. The Guardianship of Minors Act 1971 allows
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[1994] 2 SLR(R) AG v Chia Soo Choo 827

him to apply to court to be the guardian of the child. In the Adoption Rules
1984, an adoption agency is required to deal with him as any other father as
is reasonably practicable and in the interests of the child. Most significantly,
the Children Act 1989 allows a putative father to acquire parental
responsibility (“parental responsibility” is defined in s 3(1) as “all the rights,
duties, powers, responsibilities and authority which by law a parent of a
child has in relation to the child and his property”) by a court order or
through a formal agreement with the mother of the child.
15 On the main argument, I accept that the spectrum of the meaning of
the word “liable” is broad, from answerable for to legally amenable to to
arising from a court order. In the present case, as to which meaning is the
appropriate one, guidance is to be had from s 2(3) of the English Adoption
Act 1926 (it has been amended and re-enacted by subsequent Acts) which is
in pari materia with our Act. That section states, inter alia, that the consent
of a person “liable to contribute to the support of the infant” is required
before the court can make an adoption order. The commentary on the
words “liable to contribute” in Halsbury’s Statutes of England vol 12
(2nd Ed) at p 964 reads:
As for a man’s liability to maintain his wife and children … see now the
National Assistance Act 1948 (c 29), s 42 …
16 Sections 42(1)(a) and 42(2) of the National Assistance Act 1948
accordingly reads:
(a) a man shall be liable to maintain his wife and his children,
(2) The reference in paragraph (a) of the last foregoing subsection to
a man’s children includes a reference to children of whom he has been
adjudged to be the putative father …
17 Under the English legislation on adoption then, a natural father was
liable to maintain not only his wife and children but also, if it was proved
that he was the natural father, his illegitimate children. As I understand the
position the words “liable to contribute to the support of the infant”
referred to an obligation to maintain an illegitimate child which arose not
from a court order to maintain but was a statutory liability imposed on a
putative father. However, later, the law in England was changed. The
Adoption Act 1950 provided in s 3 that the consent was required, inter alia,
of the person who is “liable by virtue of any order or agreement to
contribute to the maintenance of the infant”. The addition of these words
made clear that liability arises from an order of court or has to be by
agreement.
18 Turning now to our Adoption Act, it was first enacted in Singapore by
Ordinance 18 of 1939. This ordinance was no doubt modelled on the
English Adoption Act of 1926. After that no amendment was made to s 4(4)
of the Act as was made in England in 1950 to their s 3. Then came our
Women’s Charter which was enacted in 1961. As has been said, s 61(2) of
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828 SINGAPORE LAW REPORTS (REISSUE) [1994] 2 SLR(R)

this Act provides a legal obligation on putative fathers to maintain their

illegitimate children. Considering the two provisions together, s 4(4) of the
Act and s 61(2) of the Women’s Charter, which I consider to be analogous
to the position in England before 1950, I have no difficulty in holding that
the words “liable to contribute to the support of the infant” in s 4(4) of the
Act create a statutory liability to maintain and not an obligation which takes
effect from a court order.
19 This is another point I want to make. Notwithstanding the definition
of “parent” in s 2 of the Act, it is common ground between the parties that
under two of the categories in s 4(4), ie when a putative father is the
guardian of the infant or has actual custody of the infant, his consent is
required before an adoption order is made. In my view, it would follow on
the approach I have taken, that the consent of the putative father is also
required under the fourth category: a putative father is by statute liable to
contribute to the support of the infant provided that he does not dispute
that he is the father of the child.
20 Finally, whilst a putative father has a right to object to the adoption of
his child, the court has an absolute discretion in the matter, in particular
under the proviso to s 4(4), the court can dispense with the consent where,
inter alia, he cannot be traced, or has abandoned, neglected, or ill-treated
the child or having regard to the welfare of the child which is of primary
importance the consent ought to be dispensed with: see Re SS [1974–1976]
SLR(R) 230. On the other hand, where a putative father is discharging his
responsibilities as the natural father, I think it is only right that he should be
given the opportunity to be heard before deciding whether his consent
ought to be dispensed with.
21 Accordingly, for the reasons I have given, this appeal is allowed. There
will be no order as to costs and there will be the usual consequential orders.

Headnoted by Nathaniel Khng.