Roche v Douglas - [2000] WASC 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ROCHE -v- DOUGLAS as Administrator of the Estate of EDWARD JOHN HAMILTON ROWAN (DEC) [2000] WASC 146

CORAM: MASTER SANDERSON

HEARD: 4 APRIL 2000

DELIVERED : 7 JUNE 2000

FILE NO/S: CIV 2115 of 1999

MATTER :Inheritance (Family and Dependants Provision) Act 1972

BETWEEN: SUSAN FLORENCE ROCHE
Plaintiff
AND
RONALD FRED DOUGLAS as Administrator of the Estate of EDWARD JOHN HAMILTON ROWAN (DEC)
Defendant

Catchwords:

Practice and procedure - DNA testing - Tissue specimens held by laboratory - Whether property - Whether testing to ascertain parent can be ordered - Summary judgment - Application by person adopted in relation to estate of natural parent

Legislation:

Adoption Act (1994), s 75, s 77

Inheritance (Family and Dependants Provision) Act 1972

Result:

DNA testing ordered
Summary judgment refused

Representation:

Counsel:

Plaintiff: Mr J B Hedges
Defendant: Mr K G Robson

Solicitors:

Plaintiff: Mayberry Hammond & Co
Defendant: Robertson Hayles

Case(s) referred to in judgment(s):

Calma v Sesar (1992) 106 FLR 446
Dehnert v The Perpetual Executors and Trustees Association of Australia (1954) 91 CLR 177
Doodeward v Spence (1907) 7 SR (NSW) 727
Doodeward v Spence (1908) 6 CLR 406
Haynes Case (1614) 12 CoRep 113
Marshman v Cottone, unreported; SCt of WA; Library No 970038; 31 January 1997
R v Fox [1841] 2 QB 246
R v Scott [1842] 2 QB 248
Roche v Douglas [2000] WASC 22
Williams v Williams [1882] 20 Ch D 659

Case(s) also cited:

Ex parte Callan (1968) 87 WN (NSW) 595
Re Newell (Dec) (1932) 49 WN (NSW) 181
Re Pope (Dec); Pope v Public Trustee (1975) 11 SASR 571
W v W (No 4) [1963] 2 All ER 841
Will of W F Lanfear (Dec) (1940) 57 WN (NSW) 181
Yanner v Eaton (1973) ALJR 1518

MASTER SANDERSON: This is the return of two interlocutory applications. One raises unique and difficult issues that are not easily resolved. Both involve important points of principle. To understand the nature of the applications it is necessary to say something of the facts of the case. This is the second time the matter has been before the court (see Roche v Douglas [2000] WASC 22). In the earlier decision I summarised the facts in the following way:
"The plaintiff in this matter issued an originating summons on 11 October 1999. The action was brought under the provisions of the Inheritance (Family and Dependants Provision) Act ('the Act') and related to the will of Edward John Hamilton Rowan (deceased).
... The plaintiff was born on 11 June 1936. Her original birth certificates shows her parents as Gwendoline Rose Tetlow and Harold Gordon Gibson. The plaintiff claims that her natural father was the deceased. On 29 February 1952 an order was made in this Court whereby the plaintiff was adopted to Florence Catherine Rowan. Florence Catherine Rowan was the mother of the deceased. At the date the adoption was approved she was 77 years of age. The plaintiff was 15 years of age. The plaintiff says that throughout her life the deceased stood in the position of her father. The deceased died on 29 July 1999. The plaintiff has brought her application under s 6(1) of the Act claiming that she is a child of the deceased and therefore entitled to make a claim under the provisions of s 7(1)(c) of the Act.
Against the plaintiff's claim, the defendant, as executor of the will of the deceased, says three things. First, the plaintiff's birth certificate shows her mother's name as Florence Catherine Rowan. Florence Catherine Rowan is the mother of the deceased, meaning the plaintiff and the deceased are brother and sister. That being the case the plaintiff has no right to proceed under the Act. She is not among those class of persons included in s 7(1) of the Act. Secondly, the defendant says that, even if the plaintiff is the natural daughter of the deceased she was legally adopted by the deceased's mother. The effect of that in law is to render the deceased and the plaintiff brother and sister. Finally, it is said that when Florence Catherine Rowan died the plaintiff benefited from her estate equally with her other children, one of whom was the deceased. The defendant says it is now inconsistent with that benefit for the plaintiff to claim against the deceased's estate."
As will be seen from this summary, there is an issue between the plaintiff and the defendant as to whether or not the plaintiff is the daughter of the deceased. If she is, then she falls within that class of persons who can claim pursuant to s 7(1) of the Act. If she is not the daughter of the deceased, then she has no right to claim under the Act. It is for the plaintiff to prove her case and it is for her to establish that she is the daughter of the deceased and the court therefore has jurisdiction to make an order.
In 1998 the deceased underwent surgery in the Mount Hospital, Perth. During the course of that surgery certain body specimens were taken from the deceased. These body samples were preserved in paraffin wax and are now held by Western Diagnostic Pathology at their metropolitan laboratory in Myaree.
By chamber summons the plaintiff seeks the following order:
"The Plaintiff be permitted to have such tests performed as are required to establish whether or not she is the daughter of the late Edward John Hamilton Rowan on the samples of tissue or DNA of the late Edward John Hamilton Rowan presently held by Jennifer Johns of Western Diagnostic Pathology Pty Ltd."
The order is sought on two alternate grounds. First, it is said that the court can make such an order pursuant to the provisions under the provisions of O 52 r 3(1), which is in the following terms:
"The Court may for the purpose of enabling the proper determination of any cause or matter or any question arising therein, make orders on terms for -
(a)the taking of samples of any property;
(b)the making of any observation of any property;
(c)the trying of any experiment on or with any property; or
(d)the observation of any process."
As an alternative, the plaintiff says that the court is empowered to order the defendant, as executor of the estate of the deceased, to arrange for DNA testing of the tissue samples. It is the plaintiff's position that DNA testing of the tissue samples will establish, with a high degree of certainty, whether or not the plaintiff is the natural daughter of the deceased. It is submitted that an order can be made against the executors because such an order is necessary for the estate to be properly administered. The plaintiff relies upon the decision of Scott J in Marshman v Cottone, unreported; SCt of WA; Library No 970038; 31 January 1997.
The defendant opposes the application. The primary submission put by the defendant is that the body tissue in question is not "property" and therefore no order can be made under O 52 r 3. Secondly, it is submitted that the court does not have the power to make orders against the executor as sought by the plaintiff. Further to that submission and in the alternative, it is submitted that as the tissue specimens are not property, the defendant is not in a position to deal with them by way of authorising testing on the tissue or otherwise. It is submitted that the only right the executor might have with respect to the body tissue is to arrange for its disposal in the same way as the executor disposes of a body after death.
The issue squarely raised by the application is whether or not the body tissue held by Western Diagnostic Laboratories is "property". There is no decided case in Western Australia or in Australia, or, indeed, in the United Kingdom directly on the point. Furthermore, there is no legislation which in any way bears upon the question. There is no way around the difficulty created by this application. The outcome of the application is determined by whether or not as a matter of law the body tissue of the deceased is property. If it is, then I can make an order under O 52. If it is not, then no order can be made.
The common law has long held that there is no property in a corpse. This was first decided in Haynes Case (1614) 12 CoRep 113. This case was decided in 1614 and is cited with approval both by Cooke (3 Co Inst 110) and Blackstone (4 Bl Comm 235). The case most often cited in support of the proposition is the decision of Kay J in Williams v Williams [1882] 20 Ch D 659. His Honour said (at 665):
"It follows that a man cannot by will dispose of his dead body. If there be no property in a dead body it is impossible that by will or any other instrument the body can be disposed of. I asked for any authority in conflict with these cases, but none was produced. I have referred to the books of the greatest authority on the question, and I believe that there is no authority in the least degree in conflict with these cases."
It is the case that the executors are entitled to the possession and are responsible for the burial of a dead body: see R v Fox [1841] 2 QB 246 and R v Scott [1842] 2 QB 248. Referring to the latter of these two cases, Kay J said in Williams v Williams, above, (at 665):
"That case shews not merely that a goaler may not detain the dead body, but that although there is no property in a dead body the executors have such a right of possession that they may obtain a peremtory mandamus against the goaler who was lawfully in possession of the body of the man while alive to have the dead body delivered up to them. Accordingly the law in this country is clear, that after the death of a man, his executors have a right to the custody and possession of his body (although they have no property in it) until it is properly buried."
In Doodeward v Spence (1908) 6 CLR 406 the High Court determined that this principle applied in Australia. The facts of the case, as taken from the judgment of Griffith CJ, were as follows (at 410 ‑ 411):
"This [was] an appeal from a decision of the Supreme Court [of New South Wales] dismissing an appeal from a judgment of non‑suit in a District Court in an action for detinue brought by the appellant. The subject matter of the action was the preserved body of what has been spoken of in the case as 'a two‑headed baby'. It appears from the evidence that the mother of the baby gave birth to it in New Zealand forty years ago, that it was stillborn (by which I understand that it never had an independent existence), that the mother's medical attendant, a Dr Donahoe, who arrived after the birth, took the body away with him, preserved it with spirits in a bottle, and kept it in his surgery as a curiosity, that at his death in 1870 it was sold by auction with his other personal effects and realised between £30 and £40, and that it afterwards came into the possession of the appellant. It must be assumed that Dr Donahoe's possession of the body was lawful, so far as the possession of such an object can lawful.
The Supreme Court were of the opinion that there can be no right of property in the dead body of a human being, and consequently that such a body cannot be the subject of an action for detinue or trover."
The High Court upheld the appeal from the Supreme Court of New South Wales and by a majority (Griffith CJ and Barton J) held that there was property in the body and that an action for detinue or trover could be maintained. Griffith CJ said (at 411):
"The authorities referred to in support of the decision of the Supreme Court, with one exception, relate (as was pointed out by Cohen J) to human bodies awaiting burial, and they appear to assert a general rule that when a human being dies property in his body does not vest in anyone, although certain persons have duties, and perhaps rights, with respect to it. ... But it cannot at that moment, while awaiting burial, be the subject of larceny, since the ownership could not be laid in any one. The circumstance, however, that a thing was not the subject of larceny at common law did not determine the question of an action of detinue could be brought in respect of it. For instance, deeds relating to land were not at common law the subject of larceny, but detinue would lie in respect of them. An unburied corpse awaiting burial is nullius in rebus. All that is said by the authorities to which we were referred ... appears to have been said from this point of view. ... But it does not follow from the fact that an object is at one time nullius in rebus that it is incapable of becoming the subject of ownership. For instance, the dead body of an animal ferae naturae is not at death the property of any one, but may be appropriated by the finder. So, it does not follow from the mere fact that a human body at death is not the subject of ownership that it is for ever incapable of having an owner. If that is the law, it must have some other foundation. After burial a corpse forms part of the land in which it is buried, and the right of possession goes with the land. Even, however, if the asserted rule was intended to be of general application - which I doubt - it does not follow that there can be no exception to it. Many doctrines have been asserted on the supposed authority of learned persons, who, addressing themselves to one aspect of a question, have used language which has been generalised in a manner at which no one would have been more surprised than the supposed authors of the doctrines. I do not, myself, accept the dogma of verbal inerrancy of ancient text writers. Indeed, equally respectable authority, and of equal antiquity, may be cited for establishing as a matter of law the reality of witchcraft. But in my opinion none of the authorities cited afford any assistance in the present case. We are, therefore, free to regard it as a case of first instance arising in the 20th century, and decided it in accordance with general principles of law, which are usually in accord with reason and common sense."
His Honour went on to hold that as a result of some work and skill being bestowed upon the corpse it had acquired an actual pecuniary value. His Honour therefore held that it was properly regarded as property. Barton J agreed with the reasons of the Chief Justice and did not think it necessary to say anything further. Higgins J, who dissented, dealt at length with the ancient authorities and, interestingly enough, with a number of American authorities: see 420 ‑ 422. His Honour concluded that there was no property in the corpse and that no right of action could be maintained. During the course of his judgment his Honour did mention body tissue removed during the course of a surgical procedure but did not indicate one way or another whether he would apply to this tissue the same rule as he would apply to a corpse: see 423.
Although Doodeward v Spence (supra) is of interest, it is not directly relevant to the matters at issue in this application. Furthermore, it was decided in 1908 some 50 years before Watson and Crick described the DNA double helix. Perhaps, if anything is to be drawn from the case it should be to adopt the sentiments of Griffith CJ and regard this present case as the first case arising in the 21st Century on the status of body tissue and to decide the case in accordance with general principles of law which are, hopefully, in accord with reason and common sense.
Before leaving Doodeward v Spence, it is appropriate to note that in the Supreme Court (Doodeward v Spence (1907) 7 SR (NSW) 727) Pring J expressed the view that there could be no right of property in a portion of a human body which has been severed from it. His Honour's judgment is short and he cites no authority in support of the proposition.
The only other Australian case of any significance is Calma v Sesar (1992) 106 FLR 446. The facts were that the plaintiff and the first defendant were the mother and father respectively of the deceased. All were of Aboriginal descent. The deceased had died suddenly in Darwin and a dispute arose over whether his remains were to be flown to the deceased's birthplace and cultural homeland in Port Hedland as the father wished, or were to be buried in Darwin as the mother wished. There was no will. The mother had applied for letters of administration in respect of the deceased's estate, but this was frustrated by a caveat filed by the father. The court acknowledged that both parties had equal rights to possession of the body for burial. Martin J said (at 450):
" ... there is no property in a human corpse held for the purposes of burial. What the law recognises as incident to the duty to dispose of the body is the right [of the executor] to the possession of the body until it is disposed of. There is the power and duty of a rightful executor or administrator to bury the deceased in a manner suitable to the estate which is left behind. ... The authorities establish that a person entitled to possession of a dead body may enforce that right through the courts."
There is one English authority which is of interest. It is Dobson v North Tyneside Health Authority [1997] 1 WLR 596. The plaintiffs were the adminstratrix of the estate of the deceased and the deceased's infant son who was suing through his grandmother, the adminstratrix. The deceased had collapsed at work and had been admitted to the North Tyneside General Hospital (operated by the first defendant, a regional health authority) in early October 1991. The deceased was discharged a few days later. In mid 1991 she again became very ill and was admitted to the Royal Victoria Infirmary in Newcastle (operated by the second defendant, Newcastle Regional Health Authority). A CT scan showed two brain tumours, and the deceased died three days later. After the death, at the Coroner's request, a consultant neuropathologist employed by the Newcastle General Hospital (also operated by the second defendant) was asked to perform an autopsy on the deceased. During the course of the autopsy the deceased's brain was removed and preserved in paraffin. The autopsy confirmed haemorrhage, associated with tumours, as the cause of death. No histological examination of the tumours was requested, nor performed. The brain was stored, although apparently only for 12 months, by the Newcastle General Hospital. By September 1993, therefore, when the plaintiff's solicitors requested the histology relating to the tumours, the brain had been destroyed, without any histological examination having been carried out. The histology was crucial to the plaintiff's case. The plaintiff's claim against the first defendant was in negligence, for failing to detect the tumours with a CT scan at the time of the deceased's October 1991 hospital visit. The basis of the claim was that if the tumours had been discovered at this time and if they were benign, the deceased would have survived, whereas if they were malignant, then she would probably have died, although the pain suffered by the deceased during the subsequent months until her death could have been ameliorated with radio therapy. The basis for the claim against the second defendants was that they were gratuitous bailees and not entitled to destroy, lose, convert or otherwise wrongfully interfere with the brain of the deceased pending further histological investigation of the tumorous tissue.
The Court of Appeal accepted that the proposition that there was no property in a corpse required some qualification. They referred, in particular, to the right of the executors, administrators and others charged by law with the duty of burying a body to the right to custody and possession of the body until it was properly buried (see 600). The court also accepted that a legal right to possession of the corpse for burial could only arise in those who owed a duty to bury the corpse and this did not extend to the next of kin generally. The court held that the possessory right of the executors was limited to the burial or disposition of the body. All of these conclusions appear consistent with the long established principles and were enough to decide the case. Lord Justice Peter Gibson did deal, somewhat obliquely, with the question of whether or not the brain could be regarded as property. His Lordship said (at 601):
"Does this mean that it is arguable that when Dr Perry fixed the brain in paraffin, he thereby transformed it into an item the right to possession of which or the property in which belonged to the plaintiffs? For my part, I do not think so. The removal of the brain was lawfully performed in the course of the post mortem which at the coroner's request Dr Perry had undertaken to determine the cause of the deceased's death. ... There is nothing in the pleading or evidence before us to suggest that the actual preservation of the brain after the post mortem was on a par with stuffing or embalming a corpse or preserving an anatomical or pathological specimen for a scientific collection or with preserving a human freak such as a double‑headed foetus that had some value for exhibition purposes. There was no practical possibility of, nor any sensible purpose in, the brain being reunited with the body for burial purposes. ... I do not see how the fact that the brain was so fixed (in paraffin) rendered it an item to possession of which the plaintiffs ever became entitled for the purpose of interment or any other purpose, still less that the plaintiffs ever acquired the property in it."

There are two other sources to which I have referred and of which I should make mention. The first is the chapter "Proprietary Rights in Human Tissue" in Interests in Goods, edited by Palmer and McKendrick (1998) at 25. This article provides a full and complete overview of the present law and I have found it of great assistance. The authors point out that the legal conclusion that tissue samples are not property creates difficulties (at 44):
"Proprietary actions such as theft and conversion are clearly appropriate to ensure that the terms of a tissue bailment are respected. In the Australian context, the terms of bailment would limit the purposes to which donated tissue could be put to the purposes specified in human tissue legislation. Similar terms, it is submitted, would also be implied at common law, where tissue is donated for transplantation or scientific research. In both Australia and the UK, proprietary remedies are necessary since no specific legislative offences exist for the maltreatment or destruction of validly donated tissue. To apply the 'no property' rule here would be to open up a cavernous regulatory vacuum which will rapidly widen as umbilical cords, frozen blood vessels, bones, joints and freeze‑dried nerves (to name just a few) join blood and blood products as items of storage in tissue banks. The technology for the longer‑term storage of body parts such as scalps, noses, ears, fingers and human eggs is improving steadily. Torts against the person provide no protection for the maltreatment of removed tissue, or for the use of tissue for unauthorised purposes. The tort of battery, for example, is inappropriate, since nothing which is done to removed tissue can constitute interference with the 'person' of the donor. Finally, although economic loss will often be negligible, this will not usually be motivation for persons wishing to vindicate their rights."
The learned authors also touch upon the status of tissue removed during surgical procedure. They conclude that tissue removed during a medical procedure should best be regarded as gifted to the relevant hospital in the absence of specific agreement. Of course, such a conclusion is only possible once it has been determined that the tissue removed has the status of property.
I have also referred to the Australian Law Reform Commission, Human Tissue Transplants Report No 7 (1977). The exhaustive research which supported this report makes it clear that, at least as at 1977, there was no binding authority as to whether body tissue removed during the course of surgery was property. The Commission had this to say (at 7):
"What is the legal status of human tissue removed during surgery, or otherwise in the possession of a doctor or hospital? Such tissue, for example amputated limbs, placenti etc may be waste to be destroyed, or may be susceptible of use for medical education, research or therapy. There is no reason to endow such tissue with the attributes of property. At present, the Commission takes the view that such tissue has no status in law. The law is silent concerning severed or removed body parts except to the extent that it deals with the subject as a matter of public health or the like. It is possible to envisage the creation of legal rights treating such tissue as personal property. Allowing it to be owned, sold, bequeathed or alienated in some other fashion. It is also possible to envisage the application to such tissue of 'sale of goods' type warranties and conditions. There have been persistent attempts in the United States to assimilate transferring blood goods for legal purposes, treating it as an article of commerce. There is no need at present to create statutory rules for such tissue. The creation of procedures for the lawful giving for transplant and other therapeutic use, of tissue taken from living and dead persons, should be sufficient in the Australian community today. The identification of that tissue and its investment with legal attributes of the kind mentioned above, appear to be unnecessary. This view rests upon the conclusion that, in the context of medical therapy, the Australian sees his body and its tissues not as an object of commerce but as something to be the subject of voluntary gift. We have received no information of activities which cause us to believe that legal regulation is required. Like questions of legal status will apply to the lawfully aborted foetus, at least when aborted at a stage of development when it could not be regarded in law as a dead human being."
This report was completed 23 years ago. It makes no mention of DNA at all, let alone DNA testing. The world has moved on. This may be the first time that an application has been made allowing for testing of tissue held by a laboratory, but it is unlikely to be the last.
Having given careful consideration to all of the cases I have mentioned and to the many learned articles on the subject, I am satisfied that it is proper to hold that the human tissue is property. In reaching that conclusion I am mindful of what was said by Griffiths CJ about the need to apply the principles of law in line with reason and good sense. In this case it might well be possible by the use of DNA testing to establish definitively whether the deceased is the father of the plaintiff. If that is possible it will obviate the need for extensive evidence, much of that evidence anecdotal, to prove the plaintiff's claim. There will be a considerable saving in time and cost, so on the particular facts of this case there is a compelling reason for holding the tissue samples to be property.
In the wider sense, it defies reason to not regard tissue samples as property. Such samples have a real physical presence. They exist and will continue to exist until some step is taken to effect destruction. There is no purpose to be served in ignoring physical reality. To deny that the tissue samples are property, in contrast to the paraffin in which the samples are kept or the jar in which both the paraffin and the samples are stored, would be in my view to create a legal fiction. There is no rational or logical justification for such a result.
On the basis that the tissue samples are property, I am prepared to make the orders sought by the plaintiff. For the purposes of making the order it is not necessary for me to determine who holds the proprietary interest in the tissue. It may be the defendant, it may the Mount Hospital or it may be Western Diagnostic Laboratories. To make an order under O 52 r 3 I need not determine who has ownership of the property. Section 167(oa) of the Supreme Court Act allows an order to be made in relation to property whether or not that property belongs to a party to the proceedings or a third party. As the property is held by Western Diagnostic Laboratories it is against them that I will make the order.
The second application brought by the defendant is an application for summary judgment brought under O 16. The defendant says that as the plaintiff was adopted by Florence Katherine Rowan. The defendant says that the effect of s 75 of the Adoption Act is such as to preclude any possibility of the plaintiff making a claim against the deceased's estate as his daughter. It was submitted that, consequent upon the adoption order, the plaintiff is properly to be regarded as the deceased's sister.
This argument turns upon the meaning and effect of s 75 of the Adoption Act. That section is in the following terms:
"75. Effect of adoption orders
(1)Where an adoption order is made, for the purposes of the law of this State -
(a)the relationship between the adoptee and the adoptive parent is to be treated as being that of child and parent;
(b)the relationship between the adoptee and -
(i)the adoptee's birth parents; or
(ii)if the adoptee was previously adopted, the previous adoptive parent, is to be treated as not being that of child and parent;
(c)if the adoptee had been previously adopted, whether under the law of this State or otherwise, the previous adoption ceases to have effect; and
(d)the relationships of all persons to the adoptee, the adoptive parent and the birth parent or previous adoptive parent are to be determined in accordance with this section.
(2)Subsection (1)(b)(i) does not apply to the adoptee's birth parent who is married to the adoptive parent who adopts the adoptee in the capacity of step‑parent.
(3)Subsection (1)(b)(ii) and (c) do not apply to a previous adoptive parent who is married to the adoptive parent who adopts the adoptee in the capacity of step‑parent.
(4)If an adoption order is made in relation to an adoptee, an appointment, in a deed or will existing at the time the adoption order is made, of a person as the guardian of the adoptee, ceases to have effect.
(5)Despite subsections (1) to (4), for the purposes of the law of this State relating to sexual offences, being law for the purposes of which the relationship between persons is relevant, an adoption order, or the discharge of an adoption order, does not cause the cessation of any relationship that would have existed if the adoption order, or the discharging order (as the case may be) had not been made, and any such relationship is to be treated as existing in addition to any relationship that exists by virtue of the application of this section in relation to the adoption order or by virtue of the discharge of an adoption order.
[(6)repealed]
(7)In this section a reference to 'child' includes a reference to a person who is 18 or more years of age."
Prima facie, it would appear that s 75(1)(b) has the effect of putting the plaintiff outside the class of those people who can claim under s 7(1) of the Act. Such authority as there is on this question suggests this is the case: see Dehnert v The Perpetual Executors and Trustees Association of Australia (1954) 91 CLR 177.
If that were the end of the matter, I would be inclined to grant the summary judgment application and make the orders the defendant seeks. However, the plaintiff has foreshadowed that she may seek to discharge the adoption order under the provisions of s 77 of the Adoption Act. That sections reads as follows:
"77. Discharge of adoption order
(1)The Director‑General or the Attorney General may apply to the Court for an order to discharge an adoption order.
(2)On an application under subsection (1), the Court may make an order to discharge an adoption order if it is satisfied that -
(a)the adoption order was obtained by fraud, duress or other improper means;
(b)a consent relied on for the making of the adoption order was not an effective consent because it was obtained by fraud, duress or material inducement; or
(c)there is some exceptional reason why the order should be made.
(3)The Court is not to make an order under subsection (2) if to do so would not be for the welfare and in the best interest of the adoptee.
(4)Where an order is made under subsection (2) in relation to an adoption in which the adoptive parent was not specified in the forms of consent to the adoption, the consents to the adoption continue to have effect unless the Court orders otherwise.
(5)Where an order is made under subsection (2), the Court may make such consequential or ancillary orders as it thinks fit in the interests of justice or the welfare and best interests of the adoptee, including orders relating to -
(a)the name of the adoptee;
(b)the ownership or possession of property;
(c)the guardianship or custody of the adoptee; or
(d)the domicile of the adoptee.
(6)Where an order is made under subsection (2), the rights, duties, liabilities and relationships of persons under the law of the State are to be as if the adoption order had not been made.
(7)Subsection (6) -
(a)is subject to orders made under subsection (5) and to section 75(5); and
(b)does not otherwise affect -
(i)anything lawfully done;
(ii)the consequences of anything lawfully done; or
(iii)any proprietary right or interest that became vested in any person while the adoption order was in force.
(8)An adoption order cannot be appealed against, reviewed, called in question or affected by any court on any account, except -
(a)under this section; or
(b)under section 81(2a) of the Family Court Act 1975."
If, on an application under s 77, the adoption order was discharged there would appear to be no impediment to the plaintiff making a claim under the Act. Section 77(6) would preserve the rights of the plaintiff in relation to anything legally done while the adoption order was in place, but neither that sub‑section nor any other sub‑section would appear to preclude a claim being made on the natural parent's estate. As the evidence stands at present, it is far from clear that the plaintiff will be able to obtain a discharge of the adoption order. After all, application to the court can only be made by the Director General or the Attorney General. But there is at least a prospect that this might happen. That being the case, it seems to me that it would be inappropriate to make a summary judgment order, thus putting the plaintiff out of court. Put simply, there is at least a prospect that the plaintiff will be able to bring herself within the terms of s 7(1) of the Act by the time this application is heard. I would therefore refuse the application for summary judgment.
I will hear the parties as to the precise form of orders and as to costs.