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THE
ADOPTION OF CHILDREN ACTS, 1935 to 1952
Adoption of Children Act of 1935, 26 Geo. 5 No. 7
Amended by
Adoption of Children Act Amendment Act of 1941, 5 Geo. 6 No.7
State Children Acts and Another Act Amendment Act of 1952, 1 Eliz. 2
No.3, Part III
An Act to Make Provision for the Adoption of Infants, and for
purposes incidental thereto or consequent thereon
[Assented to 17 October 1935]
1. Short Title. This Act may be cited as "The Adoption of Children Act
of 1935."
The collective title is the Adoption of Children Acts, 1935 to 1952; Act of
1952, 1 Eliz.2 No.3, s. 17.
Director may, subject to the provisions of this Act, make an order (in this
Act referred to as "an adoption order") authorising the applicant to adopt
that infant.
(2) A person so authorised to adopt the infant, and an infant auth-
orised to be adopted are in this Act referred to as "an adopter" and "an
adopted child," respectively, and "infant" means a person under the age
of twenty-one years.
(3) Where an application is made for an adoption order by two
spouses jointly the Director may make the order authorising the two
spouses jointly to adopt an infant, but, save as aforesaid, in no case shall
he make an adoption order authorising more than one person to adopt
an infant:
Provided that such application may be made by two spouses jointly
notwithstanding that one of such spouses is the natural or adopted parent
of the infant concerned.
Compare the Adoption of Children Act, 1926, s. I (Imperial), 12 Halsbury's
Statutes of England, 2nd ed., p. 962.
Applications, see also s. 18.
Powers of the Director, see also s. 13.
An application may be postponed and an interim order made under s. II.
See further with respect to orders of adoption, s. 18.
Provision for cancellation of adoption orders is made by s. 16.
A child already adopted may be further adopted under s. 12.
8. (1) Effect of adoption. Upon an adoption order being made the child
shall, unless the adopting order otherwise provides, assume the surname
of the adopting parent or parents, and all rights, duties, obligations, and
liabilities of the parent or parents, guardian or guardians of the adopted
child in relation to the future custody, maintenance, and education of the
adopted child, including all rights to appoint a guardian or to consent to
or give notice of dissent to marriage shall be extinguished, and all such
rights, duties, obligations, and liabilities shall vest in and be exercisable
by and enforceable against the adopter or adopters as though the adopted
child was a child born to the adopter or adopters in lawful wedlock; and
in respect of the same matters and in respect of the liability of a child to
ADOPTION ETC. ACTS, 1935 TO 1952 ss.6-8 63
maintain its parents the adopted child shall stand to the adopter or
adopters exclusively in the position of a child born to the adopter or
adopters in lawful wedlock:
Provided that in any case where two spouses are the adopters such
spouses shall in respect of the matters aforesaid and for the purposes of
the jurisdiction of any court to make orders as to the custody and main-
tenance of and right of access to children stand to each other and to the
adopted child in the same relation as they would have stood if they had
been the lawful father and mother of the said adopted child; and the
adopted child shall stand to them respectively in the same relation as a
child would have stood to a lawful father and mother respectively.
(2) As to succession to real and personal property. Except as herein-
after provided, on, from and after the making of the adoption order the
adopted child-
(a) Shall be entitled to succeed (whether under any intestacy or
disposition) to the real and personal property of the adopter
or adopters to the same extent as would have been the case if
the child had in fact been a child born to the adopter or
adopters in lawful wedlock:
Provided that an adopted child shall not have-
(i) Any right of succession to the real or personal property
of a relative of the adopter or adopters who dies intestate,
or
(ii) Any right to any real or personal property under any dis-
position made by a person or persons other than the
adopter or adopters in favour of the issue child or children
of the adopter or adopters unless it appears that it was
the intention of the person or persons making the dis-
position to include adopted children as objects of such
disposition;
(b) Shall not have any right of succession to any real or personal
property of its natural parent or parents which, if the adoption
had not been made, might have been claimed (whether under
any intestacy or disposition) by such child as a child born to
its natural parent or parents in lawful wedlock, unless in the
case of a disposition such child is expressly named therein:
Provided that the making of the adoption shall not deprive
the adopted child of-
(i) Any right of succession to the real or personal property
of a relative of its natural parent or parents who dies
intestate, or
(ii) Any right to any real or personal property under any dis-
position made by a person or persons other than its natural
parent or parents in favour of the issue child or children
of its natural parent or parents unless it appears that it
was the intention of the person or persons making the
disposition to exclude as objects of such disposition such
of the children of the natural parent or parents as have
been adopted by another person or other persons.
(3) Estate, right, or interest in certain property not affected. The
making of an adoption order shall not affect any estate, right, or interest
64 CHILDREN VoL 4
in any real or personal property to which any person has become entitled
either mediately or immediately in possession, expectancy, or contingency
by virtue of any disposition made before the making of the adoption order,
or by virtue of any devolution by law on the death of any person dying
before the making of the adoption order.
(4) Prohibition of marriage. It shall not be lawful for an adopter or
either of two joint adopters to marry his or her adopted child, and any
marriage between such persons shall be void.
(5) Where-
(a) An adopted child or the spouse or issue of an adopted child
takes any interest in real or personal property under a dis-
position by or the intestacy of the adopter; or
(b) An adopter takes any interest in real or personal property under
a disposition by or the intestacy of an adopted child or the
spouse or issue of an adopted child,
any duty under "The Succession and Probate Duties Acts, 1892 to 1932,"
or other duty which becomes leviable in respect thereof shall be payable
at the same rate as if the adopted child had been a child born to the
adopter in lawful wedlock.
(6) For the purposes of this section "disposition" means an assurance
of any interest in property by any instrument whether inter vivos or by
will, including codicil.
Act referred to:
Succession and Probate Duties Acts. 1892 to 1963, see title SUCCESSION
AND PROBATE DUTIES.
With subsections (1), (5) and (6)' cf. the Adoption of Children Act, 1926, s. 5
(Imperial), 12 Halsbury's Statutes of England, 2nd cd., p. 962.
With regard to succession to property of deceased persons, see the Acts printed
under the title SUCCESSION.
The follo\Ving cases deal with the effect of adoptions under statutes which in
some respects differed from this Act: Re Goldsmid, [1916] N Z.L.R. 1124 (rights
of parents by adoption and those claiming through them in property of adopted
child held to prevail over rights of natural parents); Re Carter (1905), 25 N.Z.L.R.
278 (the same); R. v. Stanley, [1903] N.Z.L.R. 378 (husband of adopter held to be
father for purposes of incest).
On the construction of this section see Re Pearson. Equity Trustees Executors
and Agency Co. Ltd. v. Michaelson-Yeates, [1946] V.L.R. 356 (domicil of adopted
child; will prior to adoption order). See also S. (falsely called R.) v. R., [1947]
Q.W.N.42.
An adoption order duly made and not set aside cannot be treated as a nullity
where one of the "spouses" who have been jointly authorised thereunder to adopt
a child is subsequently convicted of bigamy and application is made to a court of
summary jurisdiction on behalf of the child for a maintenance order (Re Skinner:
Skinner v. Carter, [1948] 1 Ch. 387; [1948] 1 All E.R. 42).
On the effect of the adoption of a child by spouses in relation to a suit of
nullity; see W. v. W., [1952] I All E.R. 858.
On the English practice where a person desires to adopt a child in respect of
whose custody the Court has made an order, see Crossley v. Crossley, [1953] P. 97;
[1953] I All E.R. 891.
An adoption order made under a foreign jurisdiction cannot be brought within
the provisions of this section. The question whether an adopted child can succeed
to property as the child of an adopter dying intestate is to be determined by the
law governing the succession, not by the law governing the adoption. Consequently,
where at the time of the making of an adoption order under a foreign jurisdiction
the intestate was not domiciled in Queensland, the adopted child will not acquire
the right to succeed to the estate which a child born in lawful wedlock would have.
Sec Re Wilson: Grace v. Lucas, [1954] 1 Ch. 733; [1954] 1 All E.R. 997. So too a
child adopted in England under the English Adoption of Children Act, 1926, 12
Halsbury's Statutes of England, 2nd ed., p. 962, is not entitled to a share of damages
obtained under ss. 12 and 13 of the Queensland Common Law Practice Acts, 1867
to 1940, see title PRACTICE, in respect of the death of its adopting father. So held
ADOPTION ETC. ACTS, 1935 TO 1952 ss.8·10 65
in Bairstow v. Queensland Industries Pty. Ltd. [1955] St. R. Qd. 335; 49 Q.J.P.R. 119.
See also, on succession to property of a person adopted while domiciled abroad and
dying intestate domiciled in England, Re Wilby, [1956] P. 174; [1956] 1 All E.R. 27;
where the adopting mother's application for a grant of letters of administration of
the deceased's estate was dismissed.
In R. v. A., Ex parte W., [1955] V.L.R. 241; [1955] A.L.R. 866, a German
court pronounced a decree purporting to make an illegitimate child the lawful son
of a married couple after the child, his natural mother and the adopters had acquired
a Victorian domicil. The decree had been properly made according to the law of
Germany, which regarded nationality as the foundation of status, the adopting
father being a German national. Held that as the Victorian court regarded status
as dependent on domicil they should not recognize the decree, which purported to
affect the status of persons domiciled in Victoria at the lime it was made.
Language to the same effect as that of subsection (2) of this section was
interpreted by the High Court, in Dehnert v. Perpetual Executors and Trustees
Association of Australia Ltd. (1954), 91 C.LR. 177; [1954] A.L.R. 837, which
decided that a similar section provided a general rule with respect to the position of
an adopted child taking property on the death of the adopter wide enough to include
a statutory power in the court to vary the testamentary dispositions made by the
adopter so as to make provision for the adopted child's maintenance. See the
Testator's Family Maintenance Acts, 1914 to 1952, s. 3, title SUCCESSION.
On the question of the power of the Court to make an order for the custody
of an adopted child cf. Fromhold v. Fromhold, [1956] V.LR. 93; [1956] A.L.R. 465,
where the court followed Martin v. Martin (1930),46 T.L.R. 257; [1930] All E.R.
Rep. 603.
Semble a child adopted under this legislation could not take under a bequest
in an English will to "children" of the adopter. See Re Marshall: Barelays Bank
Ltd. v. Marshall, [1957] Ch. 263; [1957] 3 All E.R. 172, where the Court of Appeal,
approving a dictum of Roxburgh, J., in Re Fletcher, [1949] Ch. 473; [1949] 1 All
E.R. 732. held that adopted children are prima facie excluded by the rule that when
an English testator refers to "the children" of a beneficiary he is prima facie taken
to be referring only to the beneficiary'S lawful children. In that case the testator
was domiciled in England and the adopted child and his adoptive parent were
domiciled in British Columbia, where similar legislation was in force.
9. Application of laws as to fatal accidents, etc. For the purposes of the
enactments relating to fatal accidents, to workers' compensation, to insur-
ance, and to friendly societies the adopting parent or parents shall be
deemed to be the parent or parents of the child; and where before the
deed of adoption was executed any insurance has been effected by the
natural parent of the child its rights under the policy shall, notwithstand-
ing the deed of adoption, remain as though no such deed had been
executed.
Compare the Adoption of Children Act, 1926, s. 5 (5) (Imperial), 12 Halsbury's
Statutes of England, 2nd ed., p. 962.
Rights of action arising out of fatal accidents are conferred by the Common
Law Practice Acts, 1867 to 1940, ss. 12-15, title PRACTICE.
With respect to workers' compensation, see the Workers' Compensation Acts,
1916 to 1962, title LABOUR.
Fer the enactments relating to insurance, see title INSURANCE.
Friendly societies are regulated by the Friendly Societies Acts, 1913 to 1963,
title SOCIETIES.
10. Legitimation not to affect adoption. The adoption of an illegitimate
child shall not in any way be affected by the intermarriage of its parents:
Provided that nothing in this Act contained shall prejudice or affect
the right of any such child to be registered (and whether the parents of
such child intermarry before or after the making of the adoption order)
under "The Legitimation Act of 1899."
Act referred to:
Legitimation Acts, 1899 to 1938, see title MARRIAGE AND DIVORCE.
3
66 CHILDREN Vol. 4
11. Power to make interim adoption. (1) Upon any application for an
adoption order the Director may postpone the determination of the
application and may make an interim order (which shall not be an adop-
tion order for the purposes of this Act) giving the custody of the infant
to the applicant for a period of not exceeding six months by way of a
probationary period upon such terms as regards provision for the main-
tenance and education and supervision of the welfare of the infant and
otherwise as the Director may think fit.
(2) All such consents as are required to an adoption order shall be
necessary to an interim order but subject to a like power on the part of
the Director to dispense with any such consent.
Compare the Adoption of Children Act, 1926, s. 6 (Imperial), 12 Halsbury's
Statutes of England, 2nd ed., p. 962.
21. Evidence and search. The Adopted Children Register and any adop-
tion order duly registered therein shall be and be deemed to be respec·
tively a book and document of such a public nature as to be admissible
in evidence on its mere production from the proper custody, and the
Registrar·General shall be the person having the proper custody thereof.
Every person shall, subject as is hereinafter provided, be entitled to
have a search made in the index to the Adopted Children Register and
to have a copy of or extract from the schedule to the relative adoption
order signed and certified as a true copy or extract by the Registrar-
General:
Provided that the Registrar·General shall not unless upon the order
of a court of competent jurisdiction furnish any person with a copy of or
extract from any part of an adoption order other than the schedule
thereto:
Provided further, that the provisions of section twenty of "The Regis-
tration of Births Deaths and Marriages Act of 1855" relating to times of
search and the payment of search fees shall, mutatis mutandis, apply and
extend to every such search and / or copy and / or extract as aforesaid.
Act referred to:
See now Registration of Births. Deaths and Marriages Act of 1962, title
STATISTICS.
Any person offending against any provision of this Act shall where
no specific penalty is imposed be liable to a penalty of not more than
twenty pounds.
Act referred to:
Justices Acts. 1886 to 1964. see title JUSTICES.
23. Regulations. (1) The Governor in Council may from time to time
make regulations providing for all or any purposes, whether general or to
meet particular cases, that may be convenient for the administration of
this Act. or that may be necessary or expedient to carry out the objects
and purposes of such Act.
Without limiting the generality of the foregoing provisions regulations
may be made for all or any of the following purposes, that is to say:-
(i) All matters required or permitted by this Act to be prescribed.
(ii) The mode in which application for the making of an adoption
order under this Act shall be made and effected.
(iii) The form of adoption order.
(iv) The fee to be paid upon application for an adoption order,
provided that such fee shall not exceed one pound and one
shilling.
(v) Generally for giving effect to all incidental matters arising out
of the Act.
(vi) Generally to give effect to the objects and purposes of this Act.
(2) The regulations may fix a penalty, not exceeding in any case
twenty pounds, for any breach thereof.
(3) Any such regulations may be made on the passing of this Act.
Regulations. see Table of Contents to this title, p. 53, ante.
Validity of Regulations, see Preliminary Note to title ACTS OF PARLIAMENT.
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Address of Adopter or Adopters Registrar·
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