ADOPTION is the act of a person taking upon himself the position of parent to another who is not in fact or is not treated by law as his child, and the person so acting is recognized by the law as having the rights and duties of a parent by nature. The practice prevailed in most civilized or semi-civilized nations from the earliest times. In India it is general, based on customs or religious and social ideas which vary in different parts of the country and among different classes. "The probability is that any Hindu who has no son will contemplate adoption," and the effect that every adoption must have on the devolution of prop erty causes endless disputes, so that the courts, including the Privy Council on appeals from Indian tribunals, are constantly occupied with the litigation of this subject. An elaborate state ment with regard to the Indian laws affecting adoption will be found in Mayne's Commentaries.
Adoption was also common among the Greeks and Romans. The Roman law was well defined and clearly stated by the jurists and, in this as well as in other subjects, had an important influence on the law of most modern European countries except England. Important changes were made from time to time, but it is to be noticed that from the earliest to the latest times some intervention on the part of the State and official sanction was required to give legal effect to adoptions. This principle has been generally accepted in the legislation and practice of modern States and is also the basis of the recent change in English law.
By the French code conditions are laid down under which adop tion may take place. To give legal effect to it, inquiry must be made by the court (I) whether the conditions have been fulfilled, (2) whether the adopter is of good repute. The act of adoption must be published and registered. The adopted person preserves his rights in his natural family of origin and gains no rights of inheritance as regards the property of the relatives of the adopter, but in the property of the adopter himself has the same rights as a legitimate child. According to the French code, the adoptive parent must be 5o years of age, and on the other hand it is pro vided that l'adoption ne pourra en aucun cas avoir lieu avant la majorite de l'adopte. A subsequent part of the code deals with the appointment of tuteurs officieux for protection of the inter ests of persons who require such oversight or assistance.
In Germany adoption is recognized and plays a most im portant part in the social life and conditions of the German people. It is regulated by a number of elaborate and carefully drawn provisions which are contained in the civil code. A com prehensive statement of these provisions will be found in an article by Mr. Henry Happold, of Berlin, which appeared in the Law Magazine and Review for Aug. 1914. It shows how com plicated the question is and how many points have to be provided for. As in the French code, confirmation by a competent tribunal is necessary to give legal validity to an adoption. It is also to be noted that though the adopted child acquires the legal position of a legitimate child of the adopter, the adopter acquires no right of inheritance, and the person adopted acquires no rights as regards the relatives of the adopter.
Adoption is also provided for in the legislation of the British dominions. In West Australia, for example, a male may be adopted by a man 18 years his senior, or by a woman 3o years his senior, or a female by a woman 18 years her senior or a man 3o years her senior. An act on the subject has also been passed in South Africa.
In view of this widespread recognition of adoption by law both in ancient and modern States all over the world it seems strange that until 1926 "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 was not recognized by the law of England (see Halsbury's Commentaries). But a relative or a stranger might put himself in loco parentis to a child and certain legal consequences between the parties might result from that position. Where a parent has neglected a child or it would be injurious to the child to remain in his custody he could be deprived of it or of the direction of the child's education or of the right to decide in what religion it shall be brought up (re Newton, 1896, 1 ch. 748). Under the Children's Act 1908 and other statutes the guardianship of children may be taken from parents who have ill-treated and neglected them and entrusted to some other person or institution, but this is not properly a case of adoption.
By the British Adoption of Children Act 1926 for the first time a definite system of legal adoption is introduced. Under that Act on application made by a person desirous of being author ized to adopt an infant the court may make an order authorizing the applicant to adopt that infant. In this procedure English law follows the precedent of Roman law and of most other countries, including the dominions, in requiring the sanction of a judicial or public authority for adoption of children. The welfare of the child is to be the paramount consideration. No payment or re ward is to be received by the adoptive parent unless sanctioned by the court for some special reason. The adopted child does not lose rights of succession to the property of the natural parent or gain rights of succession to the adopter, but all rights and duties' of parents or guardians as to future custody, main tenance and education are to vest in and be exercisable by and enforceable against the adopter as though the adopted child was born to the adopter in lawful wedlock. The applicant must not be under 25 years of age, must as a rule be 21 years older than the person adopted, and the court must see that the consent of the proper parties has been obtained. Either the high court, the county courts, or courts of summary jurisdiction may deal with applications for adoption, and the effect of the order is registered.
Already the Act has been used in a very large number of cases and it is constantly found that between the adoptive parents and the children adopted ties of affection grow up very similar to those which exist between parents and their own children.
In the United States, Louisiana and Texas follow the civil law in relation to adoption, but the other states, where their juris prudence is based on the common law, have had to enact statutes concerning the same. In many states it is required that adoptions be made only by married couples, but in a few states a single person may do so. Suitable age, financial solvency and substantial compliance with the requirements of the statutes are essential to make adoptions legal. Some states permit adoptions only of minors, and others forbid adoptions of relatives. An adopted child stands in the position of a child by blood in the matter of inher itances if the adoptive parent dies intestate.
See W. Clarke Hall, Law of Adoption and Guardianship of Infants