Opinion Number. 1095



Key Legislation


The Chairman, Repatriation Commission

The Chairman of the Repatriation Commission has forwarded for opinion the following memorandum:

In section 22 of the Act the definition of the word 'Dependant' means-(inter alia) (c) any ex-nuptial children of that person born before the occurrence of the event resulting in his death or incapacity as aforesaid or within nine months after that event.

This precludes the ex-nuptial child born to an incapacitated soldier after nine months of his incapacity from receiving a pension.

The definition of 'child' in the same section includes an 'adopted child of a member of the Forces' without any limitation in regard to the date of the adoption of the child by the member, either before or after his discharge.

The Act allows a pension to be paid in respect of a child born at any time after the date of discharge of the member.

The Commission recently issued the following ruling regarding the recognition of children adopted before or after discharge and whether or not under a legal agreement: An adopted child does not come under the definition of 'dependants' under the Repatriation Act, but under the definition of 'child'. It appears to the Commission that there is not justification for the view that only children adopted during the

war service of the soldier should be considered for pensions. As, however, looseness may creep into the administration if it is decided to classify all adoptions, including those after the soldier's discharge, as coming under the definition of 'child' (section 22), the Commission rules as follows:

Where a claim is made on behalf of an adopted child, care must be taken to see that the adoption is a genuine one, that is, that the soldier either before or after discharge, formally accepted the child under a legal agreement for adoption for the life of the child, or at least the period of its minority. Cases where no legal agreement exists, but there is a valid adoption, are to be submitted to the Commission with full particulars. The question on which an opinion is now desired is: 'Can a soldier adopt his own illegitimate child?'

If the answer is in the affirmative it would appear that the limitation imposed on ex-nuptial children (viz. must be born within nine months after the soldier's death or incapacity to be eligible) is overcome.

It will be noted that a child illegitimate or otherwise of any person adopted by an incapacitated soldier after his discharge might be considered eligible as a 'child' whereas the illegitimate child of an incapacitated soldier born after his discharge is not eligible either as a 'child' or as a 'dependant'.

In Halsbury's Laws of England, Vol. 2, p. 441, it is stated that:

The father of an illegitimate child is not recognised by the law of England for civil purposes. Therefore he is under no obligation to provide for the child, in the absence of any affiliation order, unless he has adopted it.

At page 111 of Vol. 17, Halsbury says:

Adoption, in the sense of the transfer of parental rights and duties in respect of a child to another person and their assumption by him, is not recognised by the law of England. But a relative or a stranger may put himself in loco parentis towards a child, and certain legal consequences as between the parties result from that position.

In a footnote to that paragraph Halsbury says: 'A father does not stand in loco parentis towards an illegitimate child, unless he voluntarily puts himself in that position by his acts and conduct'.

The law as regards adoption in the various States of the Commonwealth appears to be the same as that in England.

There appears, therefore, to be no doubt that a soldier can place himself in loco parentis towards his own illegitimate child. In such a case the child would, in my opinion, be an adopted child within the meaning of section 22 of the Act. The fact that prior to adoption it was the ex-nuptial child of the soldier does not, I think, prevent it becoming the adopted child of the soldier.

In my opinion, therefore, a soldier can adopt his own illegitimate child and that child thereupon becomes a child as defined in section 22 of the Act.

[Vol. 17, p. 407]