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 NOTES
HAGUE DRAFT CONVENTIONS ON THE LEGALISATION OF FOREIGN
DOCUMENTS and THE FORM OF WILLS

THE Permanent Bureau of the Hague Conference of Private Inter-

national Law has sent to the Quarterly the texts of draft Conven-
tions on the Suppression of the Obligation of Legalisation of Official
Foreign Documents, and on the Law Applicable to the Form of
Testamentary Dispositions. These preliminary drafts have been
produced by two Special Commissions of the Hague Conference
which met last May, and they will again be discussed by the
Plenary Session of the Conference in October 1960. They are
published at the request of the Hague Conference, together with
explanatory notes provided by the Permanent Bureau of the Con-
ference in order to provide readers of the Quarterly with an oppor-
tunity for commenting in advance on the proposals embodied in
the drafts. Readers will be aware of the interesting comparisons
which may be found between the draft Convention on the Form of
Testamentary Dispositions and the Fourth Report of the Private
International Law Committee (1958, Cmnd. 491). The following is
the text of the documents forwarded from the Permanent Bureau:

Two Special Commissions of the Hague Conference on Private

International Law met successively at the Permanent Bureau of
the Conference between April 27 and May 15, 1959. The first of
these Commissions prepared a draft convention on the legalisation
of official foreign documents,' while the second concerned itself
with the question of the law to be applied to the form of wills. 2
1 President of the Commission was Mr. Panchaud, Judge of the Swiss Federal
Court, whilst the following persons were Members: Mr. A. Billow, Honorar-
professor at the University of Bonn, Director at the Ministry of Justice of the
Federal Republic of Germany; Mr. H. Egawa, Professor at the University of
Tokio; Mr. R. Glugac, First Secretary at the Ministry of Foreign Affairs of
the Federal People's Republic of Yugoslavia; Mr. A. Herment, Inspector-
General at the Ministry of Foreign Affairs of Belgium; Mr. I. Kisch, Professor
at the Municipal University of Amsterdam; Mr. Y. Loussouarn, Dean of the
Law Faculty of Rennes, appointed rapporteur; Mr. R. Maul, Justice of the
Supreme Court of Luxemburg; Mr. R. Miller, Secretary at the Legal Section
of the Council of Europe (Observer of the Council of Europe); Mr. M. Sirman,
First Secretary at the Turkish Embassy in The Hague; Mr. G. Sperduti,
Professor at the University of Pisa; Mr. M. De Villegas Y De Urzdiz, Second
Secretary at the Spanish Embassy in The Hague; Mr. A. J. Vranken,
Assistant-counsellor at the Ministry of Foreign Affairs of Belgium.
2 It was presided over by Mr. Nypels, former Vice-President of the Netherlands
Supreme Court. Members were: Mr. C. J. Arnholm, Professor at the Univer-
sity of Oslo; Mr. H. Batiffol, Professor at the Law Faculty of Paris, appointed
559
560 International and Comparative Law Quarterly [VOL. 8

The drafts, accompanied by reports from Mr. Loussouarn and

Mr. Batiffol,' will be submitted to the Governments with a request
for comments and observations. The Ninth Session of the Con-
ference, which will meet in October 1960, will then re-examine
the subjects so that, if possible, definite draft conventions may be
drawn up.

I. Draft convention on the suppression of the obligation of legalisa-

tion of official foreign documents
Legalisation of official foreign documents is a formality which,
although not always compulsory, is frequently to be found in inter-
national legal relations. It generally consists in an attestation
issued by the diplomatic or consular agent of the country where
the document has to be used, who is established in the country
where the document was drawn up. Generally, however, these
agents do not directly legalise the signature of the person who
drew up the act, as they do not know it, and so starts a chain of
internal authentications in the State of origin of the document,
before the consular agent apposes his authentication. In a great
number of countries the signature of the Consul has to be legalised
by the Ministry of Foreign Affairs to which he belongs. It is
easily understood that this procedure, slow and expensive for the
parties concerned, may considerably impede international legal
relations. The decision to study this question was taken at the
Seventh Session of the Conference in 1951, on the request of the
Council of Europe. For lack of sufficient documentation on the
subject the Eighth Session of 1956 could come to no result, and
therefore instructed the Permanent Bureau to collect the necessary
material for the preparation of a convention (Actes de la Huiti~me
Session, 1956, pp. 285-251). The Permanent Bureau collected data
on national regulations in the matter and drew up a report which
served as basis for the work of the Special Commission. (Document
pr~liminaire No 1, March 1959.)

rapporteur; Mr. 0. A. Borum, Professor at the University of Copenhagen;

Mr. H. Egawa, Professor at the University of Tokio; Mr. G. Flore, Judge of
the High Court of Italy; Mr. C. N. Fragistas, Professor at the University of
Salonika; Mr. M. Jezdi6, Professor at the University of Belgrade; Mr. W.
von Schack, Oberregierungsrat at the Ministry of Justice of the Federal
Republic of Germany; Mr. F. Schwind, Professor at the University of Vienna;
Mr. M. Sirman, First Secretary at the Turkish Embassy in The Hague; Mr.
V. Taborda Ferreira, Barrister-at-law in Lisbon; Dr. B. A. Wortley, Professor
at the University of Manchester.
3 The Permanent Bureau of the Conference, Zeestraat 66a, The Hague, can put
at the disposal of all interested persons a copy of these reports and of the
preliminary documents upon which the Commissions based their work.
JULY 1959] Notes

A. Scope of the draft convention

Legalisation-the draft abolishes compulsory legalisation-is the
diplomatic or consular formality the object of which is to certify
the veracity of the signature and of the capacity in which the
signatory of the official document acted (article 1, paragraph 2).
By opposing itself to the diplomatic or consular intervention, on
which hinges the whole system of classical legalisation, the conven-
tion aimed at doing away with the (for international relations) most
burdensome element. The draft does not concern itself with the
wider aspects which legalisation assumes in certain legislations
where this formality sometimes serves to certify the competence of
the author of the official document.
The convention applies to all official documents drawn up in
one of the Contracting States and presented in another Contracting
State. However, certain documents are excluded from the field of
application of the convention because of their special character
and because they are often the object of bilateral treaties (article 8).
Moreover, the convention does not as a rule apply to those cases
where the question of legalisation of a document has been provided
for by special clauses of a treaty (article 9). The draft does, e.g.,
not interfere with the suppression of legalisation provided for in
the multilateral Convention of September 27, 1956, relative to the
delivery of certain extracts of certificates of births, marriages and
deaths to be presented abroad.

B. Solutions of the draft convention

The convention abolishes the obligation of legalisation. For a
certain number of acts the abolition is categorical and absolute,
for certain others the suppression is subject to certain conditions.
The Special Commission was of the opinion that for all acts
emanating from an administrative jurisdiction an absolute and
categorical abolition of legalisation could be envisaged. In order
to avoid all difficulties of qualification these acts are enumerated in
the convention (article 2). When these acts are drawn up in one
Contracting State they will be received in another Contracting
State without any formality. The only condition is that they bear
the signature and the official seal or stamp, which means in practice
that it will be sufficient that they have the form which is required
if they were to be used in the country where they have been drawn
up.
The Commission did not consider it possible unconditionally to
abolish the legalisation of notarial acts and administrative docu-
ments. As a matter of fact there is such a variety of these acts
562 International and Comparative Law Quarterly [VOL. 8

that there might be some opposition on the part of the authorities,

in foreign countries, to be called upon to recognise these acts as
authentic, for no other reason than that the form in which they
are drawn up is valid in the country of origin. For these groups
diplomatic or consular legalisation is also suppressed. However,
in order to be received in a foreign country the act must bear an
attestation issued by an authority of the State from where the
document originates (article 8). The originality and the strength of
the solution given lies in the fact that the convention prescribes
that these attestations shall be delivered in the same form in all
countries (article 4). The convention gives a form of wording for
such an apostil bearing uniform and numbered references and which
all Member States will have to use (see Annex to the convention).
Provided they bear this apostil all acts drawn up in one Member
State will have to be received in the other without any further
formality. Each Contracting State shall, in accordance with its
administrative or judicial organisation, appoint the authorities
entitled to issue such apostils on its territory (article 5). In order
to avoid forgeries which might affect the confidence to be put in
the uniform apostil, the draft convention provides for a form of
control: it obliges the authorities who deliver the apostil to keep
a register in which they enter all certificates issued with indication
of the references of the apostil. Each apostil bears a serial number
which is also recorded. At the request of any interested person who
submits to him the references of an apostil, the certifying authority
shall verify whether they correspond with those of the register
(article 6).

DRAFT CONVENTION ON THE SUPPRESSION

OF THE OBLIGATION OF LEGALISATION
OF OFFICIAL FOREIGN DOCUMENTS
settled the 5th May 1959 by the Special Commission

(Unofficial translation)

Article 1.
Each Contracting State exempts from all legalisation, on the
conditions laid down in the present Convention, all official docu-
ments, drawn up in another Contracting State, which are to be
presented in its territory.
By the term legalisation is understood, for the purposes of the
present Convention, the diplomatic or consular formality the object
of which is to certify the veracity of the signature, the capacity in
JULY 1959] Notes

which the signatory of the official document acted and, on occasion,

the identity of the seal or stamp apposed on the document.

Article 2.
There are exempted from legalisation all documents emanating
from:
a. an authority belonging to the judicial organisation,
b. an administrative jurisdiction,
c. the public prosecutor,
d. a clerk of the court or a process-server,
provided these documents bear the signature and official seal or
stamp.

Article S.
There are also exempt from legalisation:
a. notarial acts,
b. administrative documents,
provided they bear an attestation issued, in the form laid down in
article 4, by the competent authority of the State where the
document comes from.
However, exemption or simplification of the formality, men-
tioned in the preceding paragraph, may result either from an under-
standing between two Contracting States or from the laws or usages
of the State where the act is presented.

Article 4.
The attestation mentioned in article 8, paragraph 1, is executed
by adding, to the official document, an apostil, corresponding to
the model annexed to the present Convention.
This apostil is added at the request of the signatory or any
bearer of the official document.
Duly signed, numbered and dated the apostil certifies the
veracity of the signature, the capacity in which the signatory of
the official document acted and, on occasion, the identity of the
seal or stamp apposed on the document.

Article 5.
Each Contracting State, at the moment of depositing its instru-
ment of ratification or of adhesion, shall communicate, by indicating
564 International and Comparative Law Quarterly [VOL. 8

their official capacity, the authorities upon which it confers com-

petence to issue an attestation as laid down in article 3, paragraph 1.
It shall also communicate any modification in the designation of
these authorities.

Article 6.
Each certifying authority, designated in pursuance of article 5,
shall keep a register in which it shall note all attestations issued,
mentioning therein
a. its name and capacity,
b. the serial number and date of the apostil,
c. the name of the signatory of the certified document and the
capacity in which he acted.
At the request of all interested parties the said authority shall
verify whether the references on the apostil correspond with those
of the register.

Article 7.
For the purposes of the present Convention any official attesta-
tion apposed on instruments under private signature is assimilated
to an official document.

Article 8.
The present Convention shall not apply to documents drawn up
by Consular Officers, to customs documents or to administrative
documents relating to commercial transactions.

Article 9.
The present Convention shall not affect the dispositions of any
other treaty, convention or agreement governing the question of
legalisation in a specific field.
However, it shall apply to the cases of legalisation provided for
in the Hague Convention of March 1st, 1954 [and of the Conven-
tion of July 17th, 1905] relating to civil procedure.

ANNEX TO THE CONVENTION

Form of wording for an apostil

JULY 19591 Notes

APOSTIL
(The Hague Convention of ................. 1960)

1) COU NTRY : ....................................

The present official document
2) w as signed by .........................................................................
3) acting in the capacity of .........................................................
4) the seal or stamp apposed thereon
is that of ...............................................................................

Done
(place) (date)
5) at .................................... 6) the .....................................
7) b y ..........................................................................................
(certifying authority)

8) under Nr .............................. of the register.

9) Seal/stamp 10) Signature:

II. Draft convention on the law applicable to the form of testa-

mentary dispositions.
The decision to study this subject had been taken in 1956, at
the Eighth Session of the Conference at the initiative of the British
delegation (Actes de la Huiti~me Session, 1956, pp. 269, 276, 292,
328, 857).
The Netherlands Standing Committee on private international
law and the Permanent Bureau then undertook preparatory studies
which resulted in the drawing up of a draft convention accompanied
by an explanatory note and a report (Documents pr6liminaires
No I et NO 2, June 1958). These documents and the observations
presented by the various Governments (Document pr6liminaire
No 3, March 1959) served as basis for the work of the Special
Commission.
When studying the draft one will immediately notice that the
first article, which is the principal disposition of the draft, contains
a wide choice of various competent laws. The guiding principle
was that any law with which the testator had a reasonable connec-
tion should suffice to validate the testament. This liberal solution
is even extended by the fact that article 3 maintains the dispositions
of private international law of each State which might render com-
petent other laws than those referred to in article 1. In practice
 566 International and Comparative Law Quarterly [VOL. 8

this disposition will above all bring about the competence of the
lex rei sitae.
Following up this line of reasoning paragraph 2 of article 2
provides yet another possibility in regard to revocation: the use of
the law which has validated the testament one wishes to revoke.
The other dispositions aim in the first place at an exact delimita-
tion of the scope of the draft. The draft avoids qualifying some
questions as belonging or not to the form. It makes use of a
practical proc 6d according to which the convention is declared
applicable to certain borderline cases without adopting a definite
position regarding their characterisation.
Article 4 extends the convention to the form of testaments made
by two persons by one disposition, without therefore affecting the
prohibitions existing in some legislations with respect to such
wills.
Pursuant to the first sentence of article 5 the law applicable to
the form of wills shall govern the restrictions as to the choice of
certain forms by certain groups of testators. The most important
of the cases referred to here is that of the famous article 992 of the
Netherlands Civil Code which obliges Dutchmen abroad to make
use of the authentic form. Such prescriptions will never be recog-
nised outside the States where they are in force; these States may
apply them in a restricted manner to wills made abroad by making
the reservation provided for in article 8.
Pursuant to the second sentence of article 5 the qualifications
that must be possessed by witnesses are governed by the law
applicable to the form; the law governing the personal capacity of
these persons is of no importance in this respect. It will for instance
suffice that a witness has the age required by the law governing the
form, whilst it is immaterial whether or not he is of full age
according to his personal law.
Article 6 delimits the field of application as to time, whereas
article 7 provides that the rules of the convention shall apply to
all testamentary dispositions invoked in the territory of a Contract-
ing State, without any distinction whether either the testator or
one of the heirs belongs to one of these States.
Articles 9 and 10 finally provide for some reservations the
practical importance of which will not be very considerable.
JULY 1959] Notes

DRAFT CONVENTION ON THE LAW APPLICABLE TO THE

FORM OF TESTAMENTARY DISPOSITIONS
settled the 15th May 1959 by the Special Commission

(Unofficial translation)

Article 1
A testamentary disposition shall be valid as regards form if it
complies with the internal law:
a. of the place where the testator made it,
b. of any nationality possessed by the testator, either at the
time when he made the disposition, or at his death, or
c. of the place in which the testator had his domicile at the time
he made the disposition, or at the time of his death, the
determination of whether or not the testator had his domicile
in a particular place being governed by the law of that place,
or
d. of the place in which the testator had his habitual residence
either at the time of the disposition, or of his death.

Article 2
The expression testamentary disposition shall also include the
revocation of an earlier testamentary disposition.
Nevertheless a revocation shall also be valid as regards form if
it follows any one of the laws by which according to article 1 the
testamentary disposition that has been revoked was valid.

Article 8
The present Convention shall not affect any existing or future
legal rules of contracting States that recognise testamentary dis-
positions made in a legal form not included in article 1.

Article 4
The present Convention shall apply to testamentary dispositions
made by two persons by one disposition.

Article 5
For the purposes of the present Convention any provisions of
law limiting the forms of permitted testamentary dispositions and
relating to the age, nationality or other personal qualifications of
the testator, shall be considered to relate to matters of form. The
same rule shall apply with regard to the qualifications that must be
568 International and Comparative Law Quarterly [VOL. 8

possessed by witnesses necessary for the validity of a testamentary

disposition.
Article 6
The present Convention shall apply to all cases where the
testator dies after its entry into force.

Article 7
The present Convention shall apply to testamentary dispositions
invoked in a contracting State, even if the nationality of the
interested parties is not, or if the law to be applied by virtue of
the foregoing articles is not, that of a contracting State.

Article 8
Each State when signing or ratifying the present Convention, or
when adhering thereto, may reserve the right not to recognise by
virtue of provisions of its own law relating thereto, forms of testa-
mentary dispositions made abroad when the following conditions
are fulfilled:
a. the testamentary disposition is only valid as to form by
reason of some law competent solely because of the place
where the testator has made his disposition,
b. the testator had no other nationality than that of the State
making the reservation,
c. the testator was domiciled in such State or had his habitual
residence there, and
d. the testator died in some State other than that in which he
has made his disposition.
This reservation shall only affect property situated in the State
making the reservation.
Article 9
Each State, when signing or ratifying the present Convention,
or when adhering thereto, may reserve the right not to recognise
testamentary dispositions made orally by one of its subjects
possessing no other nationality.

Article 10
Each State, when signing or ratifying the present Convention, or
when adhering thereto, may reserve the right to limit the applica-
tion thereof to testamentary dispositions which, according to its
law, relate to succession.
JULY 1959] Notes

ADOPTION ACT, 1958: SoME CONFLICT IMPLICATIONS

THmRE have been few cases on the Private International Law

relating to adoption, and Parliament has done next to nothing to
solve the conflict problems which have been posed in an accumulat-
ing body of learned writing.' "Next to nothing" rather than
" nothing " because the Adoption Act, 1958, to this extent replacing
provisions in the Children Act, 1958,2 contains a few provisions of
minor significance for the conflict of laws. It is proposed to examine
the relevant provisions more or less briefly, and to do so partly in
the light of the pre-existing law and of the Report of the Depart-
mental Committee on the Adoption of Children under the chairman-
ship of His Honour Sir Gerald Hurst. 3
The Adoption Act, 1958, consolidates, with corrections and
minor improvements, enactments relating to adoption, and in
particular the Adoption Act, 1950, and Part II of the Children Act,
1958. The old and new Adoption Acts may conveniently be referred
to as " the 1950 Act " and " the 1958 Act " respectively.

Jurisdiction of courts
Under the 1950 Act the High Court, a county court or a magis-
trates' court had jurisdiction to make an order authorising an
applicant to adopt an infant if the applicant was domiciled in Eng-
land or Scotland, but only if the applicant and the infant resided
in England.' In Re Adoption Application No. 52 of 1951, 5 Harman
J. held that the wife of a person whose duties required him to live in
Nigeria and who periodically spent three months' leave in England
did not " reside in England " for the purposes of the Act if she was
here merely for the period of her husband's leave and intended to
return to Nigeria after the hearing of her application for an adoption
order; and that this was so even though the couple had bought a
house in England in which they intended to reside permanently after
about seven years.' Persons domiciled in England or Scotland but
(e.g.) working and temporarily resident abroad could therefore not
adopt a child in England; although, under section 40 of the 1950
Act, they could, if British subjects, obtain a licence " authorising
I For references, see Dicey, Conflict of Laws, 7th ed., 457, note 86.
2 The provisions in question were in Part II of the Children Act. The Act came
into force on April 1, 1959, but by this time Part II had been repealed by the
Adoption Act, 1958, which came into force on the same day.
3 Cmd. 9248 (1954).
4 Adoption Act, 1950, ss. 1 (1) and 2 (5).
5 [1952] Ch. 16.
6 ]Residence," a word varying in meaning with its statutory context, is a
question of fact " subject to the limitation that it " denotes some degree of
permanence. It does not necessarily mean the applicant has a home of his
own, but that he has a settled headquarters in this country " (ibid., 25).
x.C.LQ.--8 86
570 International and Comparative Law Quarterly [VOL. 8

the care and possession of an infant for whose adoption arrange-

ments [had] been made to be transferred" to them. In that
section, " adoption " seems to have meant legal or de facto
adoption.
Of the requirement of residence in England as a condition of the
making of an adoption order, the Hurst Committee observed that:
" now that in all cases a child has to spend a probationary
period in the adopters' care under the supervision of a local
authority it appears to be redundant." 7
The Committee recommended that the requirement of residence be
repealed, and that there be enacted "a provision deeming that a
person resident in another country is for the purposes of the applica-
tion residing in the place where he declares his intention to live from
the time he gives the local authority notice of his intention to apply
for an adoption order until the order." " The effect of these recom-
mendations would be that a child formerly, under section 40, trans-
ferred to the care and possession of licensees with whom he had not
necessarily lived at all, with whom he might not get on, and by
whom he might not be legally adopted, would under the new system
have the advantages of an adoption order subject to all the safe-
guards that apply in the normal case of parties resident in England.
No doubt this result is brought about by the 1958 Act, but the
provisions are curious. Section 1 retains (by subs. (1)) the require-
ment of the applicant's domicile in England or Scotland and (by
subs. (5)) that of the residence of both parties in England,' but
" subject, however, to section 12 of this Act." By section 3 (2),
except in certain cases,' " an adoption order shall not be made...
unless the applicant has, at least three months before the date of
the order, given notice in writing to the local authority within whose
area he was then resident of his intention to apply for an adoption
order in respect of the infant." Section 9 (1) provides that " An
application for an adoption order may be made . . . to the High
Court or . . . to any county court or magistrates' court within the
jurisdiction of which the applicant or the infant resides at the date
of the application."
Section 12 (1) is in these terms:
" (1) An adoption order may, notwithstanding anything in
this Act, be made on the application of a person who is not
I Cmd. 9248, para. 166.
8 The relevant provisions are of the same pattern for Scottish courts as they are
for English.
9 Except, that is, where the applicant or one of the applicants is a parent of the
infant; or where the infant is above the upper limit of the compulsory school
age.
JULY 1959] Notes

ordinarily resident in Great Britain; and in relation to such an

application-
(a) subsection (5) of section one of this Act does not apply;
and
(b) subsection (2) of section three of this Act applies with
the substitution of the word 'living' for the word
' resident.' "
An application under section 12 may be made " to the High Court
or the county court " 10 (subs. (2)). Subsection (3) contains other
minor consequential amendments.
Despite the odd and unwarranted use of the special term
ordinarily resident " in section 12," it seems that so long as an
application is not made to a magistrates' court, neither the residence
of the applicant nor that of the infant is any longer necessary. To
put it in terms of jurisdiction, the English court's jurisdiction to
make an adoption order is now based exclusively on the domicile
of the adopter. The fact that the parties must, by implication from
section 3 (2) and other provisions, be " living " in England for at
least three months immediately preceding the date of the adoption
order (see section 3 (1)) may be regarded as part of the general
scheme of safeguards provided by the Act for the purpose of ensuring
sound adoptions rather than as part of the basis of jurisdiction.
The change in the jurisdictional requirements for adoption in
English law may have some relevance to the problem of what
foreign adoptions are to be recognised in this country. The rule
speculatively stated by Dr. Morris in the latest edition of Dicey for
the recognition of an adoption made in a foreign country and valid
by its law is that such an adoption:
" will (semble) be recognised in England if at the time of the
adoption-
10 What county court? S. 9 (1) provides for application to a county court where
the applicant or the infant resides. By s. 12 (2), s. 9 (1) does not apply to an
application by a person not ordinarily resident in Great Britain.
11 Space does not permit, and the importance of the subject-matter does not justify,
a prolonged excursus on this oddity. Briefly, it may be asked what special
meaning " ordinarily resident " carries here. As a result of ss. 12 (1) (a) and
(b) and 12 (2), none of the provisions relating to residence apply when applica-
tion is by a person not ordinarily resident in Great Britain. So " resident "
would have done. If (horrible to contemplate) " ordinarily resident " means
something different from " resident," a casus omissus is possibly present: a
person who is neither " resident in England " nor " ordinarily resident in
Great Britain " may apply under section 12; but one who is " ordinarily resi-
dent . . ." but not "resident . . ." may not apply at all. Moreover,
" ordinarily resident " is more apt to describe a state of affairs considered over
a period (cf. Matrimonial Causes Act, 1950, s. 18 (1) (b)) than to describe the
nature of a person's presence at a particular date (cf. R.S.C., Ord. 11, r. 1 (e) ).
Nor does the Act give any meaning to " living " (cf. Harman J.'s "I should
say they were for the time being staying here " in Re Adoption Application ...
[1952] Ch. 16, at 23: above, notes 5 and 6).
572 International and Comparative Law Quarterly [VOL. 8

(1) the adopter was domiciled in such foreign country; and

(2) the adopter and the adopted person resided there." 12
This suggestion is " based upon the proposition stated in Travers v.
Holley " that 'our courts should recognise a jurisdiction which they
themselves claim.' " 14 In particular, the rule allows recognition of
the adoption of an infant not domiciled in the country in which the
adoption is made. If the " reciprocity " approach is the right one,
the sole requirement, so far as anything in the nature of jurisdiction
is concerned,' 5 must now be that the adopter be domiciled in the
country in which the foreign adoption is made. Dr. Morris's rule
no longer needs its second limb.
Such a simplification of the suggested rule would not indeed
mean that in considering the validity or effect of a foreign adoption
an English court would limit itself to ascertaining the domicile of the
adopter. For, in order to feel satisfied that the foreign adoption is
worthy of recognition here or that it should be given effect for any
particular purpose, the court will no doubt require to know (inter
alia) to what general ends adoption under the foreign law is directed
and what safeguards exist under that law to ensure the welfare of
the infant and the consent of its natural parents. If there exist
grounds upon which a foreign adoption may be refused recognition
or effect because in moral or sociological terms it fails to measure
up to some minimum standard (a question which awaits decision),
the fact that the parties were not resident (did not "live "?) within
the foreign jurisdiction will be a matter to be taken into account by
the English court. It will be relevant, for instance, to the control
which the foreign administrative authorities will have been able to
exercise and to the existence of any probationary period under the
foreign law.

Proposed adoption abroad

As has already been mentioned, British subjects resident abroad
could, under section 40 of the 1950 Act, subject to conditions, obtain
a licence for the transfer to them of the care and possession of an
infant for whose adoption arrangements had been made. The licen-
sing system had numerous disadvantages," of which the most
general was that it conferred no legal status upon the child. And,
apart from this system, there was no way in which a British child
12 Op. cit., 460 (Rule 73).
13 [1953] P. 246.
14 ])icey, Conflict of Laws, 7th ed., 462.
15 This phraseology, as the wording of Dicey's Rule 73 (" made in a foreign
country and valid by its law "; and see ibid., 462), reflects the fact that not
all adoptions involve judicial acts.
16 Cf. Hurst Committee, Cmd. 9248, paras. 163-164.
JULY 1959] Notes

could be transferred to anyone abroad, except a guardian or close

relative, for the purpose of adoption.17
The Hurst Committee recommended that:
" The licensing system should be maintained in order to
provide for the transfer of children to destinations outside ' the
British Islands ' or to persons here who are not domiciled in
England or Scotland. Licences should be issued only under
safeguards similar to those required before an adoption order
can be granted and should vest in the applicants rights equal to
those of a parent." '5

The 1958 Act, having by section 12 provided for adoptions in this

country by persons not (ordinarily) resident here, proceeds in
sections 52 and 53 to deal with situations where it is desired to have
an infant adopted abroad.
By section 52 (1):
" (1) Except under the authority of an order under section
fifty-three of this Act, it shall not be lawful for any person to
take or send an infant who is a British subject out of Great
Britain 15 to any place outside the British Islands 20 with a view
to the adoption of the infant (whether in law or in fact) by any
person not being a parent or guardian or relative 21 of the
infant; . . ."
The subsection goes on to make contravention of the prohibition a
summary offence.
Section 58 provides in effect that a person not domiciled in
England or Scotland who intends to adopt an infant under the law
or within the country in which he is domiciled may apply (to the
High Court or county court: subs. (2)) for an order (a "provisional
adoption order ") authorising him to remove the infant from Great
Britain for that purpose and giving him the custody of the infant
pending the adoption abroad. Apart from the domicile of the
applicant, a provisional adoption order may be made, and made
only, in any case where an adoption order could be made (subs.
(8)), except that the probationary period of care and possession
17 See 1950 Act, so. 39 and 40.
IsCmd. 9248, para. 285 (43); cf. paras. 169-172.
19 United Kingdom of England and Scotland (5 Anne, c. 8, art. 1).
20 United Kingdom, Channel Islands and Isle of Man (s. 52 (3)).
21 By a. 57 (1) " relative " means certain close kin and includes . . . where an
adoption order has been made in respect of the infant or any other person under
any enactment (including any enactment of the Parliament of Northern Ireland)
any person who would be a relative of the infant within the meaning of this
definition if the adopted person were the child of the adopter born in lawful
wedlock .... ." This looks like a new refusal on Parliament's part to accord
recognition, at least for a particular purpose, to foreign adoptions; cf. 1950
Act, s. 13 (4) (now 1958 Act, s. 16 (4)), and Re Wilby [1954] P. 174.
574 International and Comparative Law Quarterly [VOL. 8

and of supervision by the local authority is six months instead of

three (subs. (5)).
It is submitted that by this provision Parliament may be taken
to have accepted the principle that a foreign adoption under the law
of the adopter's domicile should be recognised in this country
(though under what safeguards or conditions that general principle
is to operate is, as has been remarked, a question for decision). For
to make a provisional adoption order having most of the effects of
an adoption order (see s. 53 (4)) for the purpose of facilitating an
adoption within the country of the applicant's domicile, and then
to refuse recognition to that adoption, would be a curious self-
stultifying procedure. Nor could the recognition of adoptions under
the law of the adopter's domicile be properly limited to cases where
orders under section 58 of the English Adoption Act had been
obtained.
The reference in section 53 (1) to the applicant's purpose of
adopting the infant "under the law of or within the country in
which he is domiciled " (compare " adoption . . . whether in law or
in fact " in section 52 (1)) seems to contemplate situations in which
adoption in the foreign country is de facto only. Such adoption
following upon a provisional adoption order would involve the status
of the parties being affected by the " provisional " order of the
English (non-domiciliary) court, but unaffected by the law of the
adopter's domicile. Save so far as custody is concerned (closing
words of section 58 (1)), the English order appears to be " provi-
sional " but not temporary: there is no provision to the effect that
a foreign adoption determines the efficacy of the English order-
though adoption de jure would doubtless have this effect under the
relevant foreign law.
It is also worthy of note that, by section 58 (4), all the provisions
of the Act apply in relation to a provisional adoption order as they
apply in relation to an adoption order (except sections 16 and 17,
affecting entitlement under English intestacies, wills and settlements,
and section 19, conferring citizenship of the United Kingdom and
Colonies upon a non-citizen infant adopted by a citizen). So there
may be cases in which a provisional adoption order will make a more
drastic change in the status relationships of the parties (adopter,
infant, natural parents) than the subsequent adoption under the
foreign law. It is conceivable therefore that the effect of a foreign
adoption might be to reimpose upon the natural parents and divest
from the adopter some of the rights and duties that moved between
them when the provisional adoption order was made-, and that the
infant may only temporarily " stand to the adopter exclusively in
JULY 1959] Notes

the position of a child born to the adopter in lawful wedlock"

(s. 13 (1)).

Foreign adoptions : date for testing right to take under English wills
A short point arises from a change in the law contained in section
17 (2) of the 1958 Act.
Section 16 (2) of the 1958 Act (replacing section 13 (2) of the
1950 Act) provides in effect that, for the purpose of dispositions of
property made by will or codicil after the date of an adoption order,
the adopted child is prima facie to be treated as the child of the
adopter born in lawful wedlock and not as the child of his natural
parents, and as correspondingly related or not related to other per-
sons in consequence.
In the absence of any statutory provision to the contrary, a dis-
position would, within the meaning of section 16 (2), be " made"
when the will or codicil was executed and not at the testator's death;
and for the subsection to apply the adoption would therefore have to
be made before the execution of the instrument. There was no provi-
sion to the contrary in the 1950 Act.2 2 But section 17 (2) of the
1958 Act provides 22 that for the purposes of section 16 (2) " a dis-
position made by will or codicil shall be treated as made on the date
of the death of the testator."
A question that has received some consideration is this: assum-
ing that a person adopted under a foreign law is not, by reason of
being an adopted and not a natural child of the adopter, precluded
from taking under an English will as the " child " or " issue " of
the adopter, what is the date by reference to which the status of the
adopted person should be tested? The question arose in Re
Marshall," because in that case at the date of the testator's death
the child did not, though by virtue of subsequent legislation he later
did, have succession rights under the law of his adoption (British
Columbian law) substantially similar to those conferred upon a
person adopted under English law since 1950; and was not at that
date a person who could have taken under the will had it been a
British Columbian will. It was held that, even if "issue " in an
English will may, as a general rule, 2 include foreign-adopted issue,
the testator cannot be regarded as having intended adopted persons
not " placed by adoption in a position . . . equivalent, or to all
22 See, indeed, s. 14 (2) of that Act.
23 Pursuant to a recommendation of the Hurst Committee: Cmd. 9248, para. 160.
24 [1957] Ch. 507, C.A., affirming Harman J. [1957] Ch. 263.
25 An adopted child may, in any case, on the proper construction of the will, be
intended to take the gift, as where the propositus is known by the testator
to be incapable of having children and the adopted child has always been
treated by the testator as the child of the propositus: Re Fletcher [1949] Ch.
473.
576 International and Comparative Law Quarterly [VoL. 8

events substantially equivalent, to that of the natural children of

the adopter . ,, 26 Further, the date for testing the position in
which the adopted person was placed by the adoption was the date
of the testator's death.
The learned general editor of Dicey finds this approach unexcep-
tionable on the facts of Re Marshall, where reference to the date of
the testator's death sufficed to defeat the adopted person's claim.
But he points out that reference should, in the light of the 1950 Act,
be to the date of the testator's will and not to that of his death, for
reference to the later date " would mean that foreign-adopted
children would have greater rights of succession under English wills
than children adopted in England." 27
Because of section 17 (2) of the 1958 Act, however, this is no
longer true in the case of a will or codicil executed or confirmed after
April 1, 1959.28 Assuming still that there is no general rule of
English law against a foreign-adopted child taking as "issue "
under an English will, the date of the testator's death may now be
regarded for all purposes as the correct date by reference to which
to determine the child's status under the foreign law.
EDWARD J. GRIEw.*

26 [1957] Ch. at 523.

27 Dicey, op. cit., 471.
28 1958 Act, Sched. V, para. 4 (3)
* M.A., LL.B., of Gray's Inn, Barrister-at Law.