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The difficulty arises in these circumstances. The girl is thirteen. She has signed, with a mark, the necessary form of consent, but appended to it is a certificate by a medical man that the child is mentally retarded and not able to understand the circumstances of adoption or sign a form of consent. The form of consent was submitted to her after she had attained the age of thirteen.
In these circumstances, although with reluctance, I see no alternative to affirming the conclusion to which the Sheriff-substitute, with equal reluctance, has come.
LORD GUTHRIE .—I share your Lordship's regret at the necessity for refusing this appeal, but I am of opinion that the Sheriff-substitute's decision is correct, and that the reasons which he gave for it are sound.
The answer to that question is "No," because the court is not given power to dispense with that consent under section 5 (1). The third question is: Has the girl given her consent to the adoption order ? The answer is "No," because she is incapable of giving her consent. The fourth question is:
Again the answer is "No," because we have a medical certificate stating that the child is incapable of understanding it. In these circumstances the court cannot be satisfied as required by section 7 (1) before making an adoption order, and therefore the order applied for cannot be made. For these reasons I would refuse the appeal.
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Common Room
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