298 SUPREME COURT REPORTS ANNOTATED

Duncan vs. CFI of Rizal (Branch X)

*
No. L-30576. February 10, 1976.

ROBIN FRANCIS RADLEY DUNCAN and MARIA LUCY-

CHRISTENSEN, petitioners, vs. COURT OF FIRST
INSTANCE OF RIZAL (Branch X) PRESIDED OVER BY
HON. JUDGE HERMINIO C. MARIANO, respondent.

Adoption; Guardianship, One to whom a 3-day old child was

given by its mother who does not wish to be identified may be
considered as the guardian exercising patria potestas over such
abandoned child and competent to give consent to the adoption of
the latter.—It seems to Us that when the 3-day old baby was left
to and placed in the hands of Atty. Corazon de Leon Velasquez,
the helpless infant was in dire need of someone who could give it
protection and sustain its delicate and fragile life. Atty. Velasquez
was under no legal compulsion to accept the child and to extend to
it the protection and care it badly needed. Since there had been no
showing that the identity of the natural mother was made known
to the trial court or to the herein petitioners,

______________

* FIRST DIVISION.

299

VOL. 69, FEBRUARY 10, 1976 299

Duncan vs. CFI of Rizal (Branch X)

nor had said mother seen fit to present herself before the court
despite the public notice given to the proceedings as required by
law, there clearly appears only one person who could be
considered as the guardian exercising patria potestas over such
abandoned child. Since there was no guardian ad litem appointed
by the court and the child not being in the custody of an orphan
asylum, children’s home or any benevolent society, there could not
have been anyone other than Atty. Corazon de Leon Velasquez
who could, with reason, be called the guardian of said infant. It
was she who had actual physical custody of the infant and who,
out of compassion and motherly instinct, extended the mantle of
protection over the hapless and helpless infant which otherwise
could have suffered a tragic fate, like being thrown into some
garbage heap as had often happened to some unwanted
illegitimate babies. The least this Court could do to recognize and
acknowledge her good Samaritan deed is to extend, as it hereby
extends, to her the recognition that she was a de facto guardian
exercising patria potestas over the abandoned child.
 Same; Same; One who gives her 3-day old child to another
and has since not heard of is deemed to have abandoned the child.
—We are convinced that in fact said mother had completely and
absolutely abandoned her child. This Court has previously
declared that abandonment imports any conduct on the part of
the parent which evinces a settled purpose to forego all parental
claims to the child. Applying this legal yardstick, the unidentified
mother of the child in this case can be declared, as she is hereby
declared, as having abandoned her child with all legal
consequences attached thereto.
Same; Same; The rule of “Dura lex sed lex” should not be
applied to acts designed to provide homes, love and care to
unfortunate abandoned children; the widest latitude of sympathy
and assistance should be extended by courts to such acts.—The
trial court in its decision had sought refuge in the ancient Roman
legal maxim “Dura lex sed lex” to cleanse its hands of the hard
and harsh decision it rendered. While this old adage generally
finds apt application in many other legal cases, in adoption of
children, however, this should be softened so as to apply the law
with less severity and with compassion and humane
understanding, for adoption is more for the benefit of unfortunate
children, particularly those born out of wedlock, than for those
born with a silver spoon in their mouths. All efforts or acts
designed to provide homes, love, care and education for
unfortunate children, who otherwise may grown from cynical
street urchins to hardened criminal offenders and become serious
social problems, should be given the widest latitude of sympathy,
encouragement and assistance. The law is not, and should not be
made, an instrument to impede the achievement of a salutary
humane policy.

300

300 SUPREME COURT REPORTS ANNOTATED

Duncan vs. CFI of Rizal (Branch X)

PETITION for review on certiorari of the decision of the

Court of First Instance of Rizal (Branch X).

The facts are stated in the opinion of the Court.

     Susano A. Velasquez for petitioners.
       Solicitor General Felix Q. Antonio, Acting Assistant
Solicitor General Hector C. Fule and Trial Attorney
Herminio Z. Florendo for respondent.

ESGUERRA, J.:

Petition for review on certiorari of the decision of

respondent court, dated June 27, 1968, dismissing
petitioners’ petition to adopt the minor, Colin Berry
Christensen Duncan. It seeks to have the findings and
conclusions of law contained in the decision annulled and
revoked and to declare the petition for adoption meritorious
and the child sought to be adopted, the minor Colin Berry
Christensen Duncan, declared the child by adoption and
heir of herein petitioners-appellants, 1Robin Francis Radley
Duncan and Maria Lucy Christensen.
Petitioners Robin Francis Radley Duncan and Maria
Lucy Christensen are husband and wife, the former a
British national residing in the Philippines for the last 17
years and the latter an American citizen born in and a
resident of the Philippines, Having no children of their own
but having previously adopted another child, said spouses
filed a petition with respondent court (Sp. Proc. No. 5457)
for the adoption of a child previously baptized and named
by them as Colin Berry Christensen Duncan. The petition
is filed and denominated as Sp. Proc. No. 5457.
In the decision rendered by respondent Court dated 2
June 27, 1968, the petition for adoption was dismissed.
The principal reason given for the dismissal of the
petition was that “. . . the consent given in this petition
Exhibit “J” is improper 3
and falls short of the express
requirement of the law.”
Rationalizing its action respondent Judge said:

“Art. 340 (of the Civil Code) provides that the written consent of
the following to the adoption shall be necessary:

________________

1 Brief for Petitioners, p. 23; Rollo, p. 66.

2 Decision, Annex “A”, Petition for Certiorari; Rollo, p. 24.
3 Ibid, p. 8; Rollo, p. 31.

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VOL. 69, FEBRUARY 10, 1976 301

Duncan vs. CFI of Rizal (Branch X)

2. The parents, guardian or person in charge of the person to be

adopted.

“Under the law aforementioned, it will be noted that the

law is couched in mandatory terms by the word SHALL be
necessary, and it enumerates the persons who will give the
consent to the adoption in the order as follows: parents,
guardian, or the person in charge of the person to be
adopted.
“It is admitted by witness Velasquez that she knew the
identity of the mother who gave her the child. This being
the case, the proper person who is supposed to give the
parental consent to the adoption should first be, in 4
the
order of preference, the parent or the mother herself.”
On the allegation of petitioners that their principal
witness, Atty. Corazon de Leon Velasquez, under whose
care the newly-born child was entrusted by the unwedded
mother, could not reveal the identity of the mother because
it would violate the privileged communications between the
attorney and client, respondent Judge explained: “The
contention that for her (Atty. Corazon de Leon Velasquez,
the witness for the petitioners who gave the written
consent to the adoption of the child in her capacity as loco
parentis to said child) to reveal the identity of the mother
would be violative of the client-attorney relationship
existing between her and the mother cannot hold water,
because in the first place, there was no such relationship
existing between them in so far as this case is concerned
and secondly, it is not only a question of revealing the
identity of the mother but rather, of giving
5
consent to the
adoption by that alleged unwed mother.”
Taking exception to respondent Judge’s decision and the
ratio decidendi thereof, appellants-petitioners 6alleged the
following as errors committed by the trial court:
 1) The inviolability of privileged communication
between attorney and client is only binding upon
the attorney in the same case where such
relationship of attorney and client arose when the
client imparted the privileged communication and
that elsewhere or in another case the attorney is
not bound to the secrecy;
2) The infant that was given away by the natural
mother, even without the latter providing for the
child’s maintenance and support, could not be
considered as abandoned;

_______________

4 Ibid, pp. 6-7.

5 Ibid, p. 7.
6 Brief for Petitioners, Rollo, p. 66.

302

302 SUPREME COURT REPORTS ANNOTATED

Duncan vs. CFI of Rizal (Branch X)

3) The stranger who received the baby or child, in this

case, Atty. Corazon de Leon Velasquez, could not be
considered as the guardian de facto and in loco
parentis of the child, and therefore, is not
empowered by law to give written consent to the
adoption;
4) That whenever and as long as the natural mother is
known to anybody, only said natural mother can
give the written consent to the adoption;
5) That the term “person in charge of the person to be
adopted”, one of those who can give consent to the
adoption under Article 340 of the Civil Code, means
or refers to institutions or orphanages established
for the purpose of rearing orphans, foundlings and
destitute children.

The facts of this case are few and simple.

a) Sometime in May, 1967,

7
a child, less than a week
old (only 3 days old) was given to petitioners Robin
Francis Radley Duncan and his wife Maria Lucy
Christensen, for them to adopt, by Atty. Corazon de
Leon Velasquez. The child was later on baptized as
Colin Berry Christensen Duncan with the
aforementioned espouses appearing in the8 records
of said baptism as the parents of said child;
b) Atty. Corazon de Leon Velasquez on the other hand,
received the infant from the child’s unwed mother
who told the former never to reveal her (the
mother’s) identity because she wanted to get
married and did not want to destroy her future. The
mother instructed Atty. Corazon de Leon Velasquez
to look for a suitable couple who will adopt the
child. The mother did not provide 9
for the
maintenance and support of her child;
c) In the petition for adoption filed by petitioners in
September, 1967, Atty. Corazon de Leon Velasquez,
as the de facto guardian or loco parentis of the child
 subject of the adoption 10petition, gave the written
consent required by law;
d) Learning from the testimony of witness Atty.
Corazon de Leon Velasquez that the natural mother
of the child sought to be adopted was still alive, the
court then pressed upon the witness to reveal the
identity of said mother. The witness refused to
divulge the same on the ground that there existed
an attorney and client relationship between them.
She had been instructed by her client not to reveal
the latter’s identity. She 11
could not now violate such
privilege communication.

_______________

7 Petition for certiorari, p. 3; Rollo, p. 12.

8 Ibid, p. 6.
9 Ibid, p. 7.
10 Ibid, p. 7.
11 Ibid, p. 7; Petition for Certiorari, p. 3; Rollo, p. 12.

303

VOL. 69, FEBRUARY 10, 1976 303

Duncan vs. CFI of Rizal (Branch X)

After examining the facts and the arguments presented, it

appears to this Court that there is only one principal issue
involved, i.e., whether or not the person who gave the
consent for adoption, which in this case is Atty. Corazon de
Leon Velasquez, is the proper person required by law to
give such consent.
The law applicable is, Art. 340 of the Civil Code, which
provides:

Art. 340. The written consent of the following to adoption shall be

necessary:

(1) The person to be adopted, if fourteen years of age or over;

(2) The parents, guardian or person in charge of the person to
be adopted.

On the other hand, the Rules of Court (Rule 99) has this to
say on those who are required to give consent in adoption:

Sec. 3. Consent to adoption.—There shall be filed with the

petition a written consent to the adoption signed by the child, if
fourteen years of age or over and not incompetent, and by the
child’s spouse, if any, and by each of its known living parents who
is not an insane or hopelessly intemperate or has not abandoned
such child, or if there are no such parents by the general
guardian, or guardian ad litem of the child, or if the child is in the
custody of an orphan asylum, children’s home, or benevolent
society or person, by the proper officer or officers of such asylum,
home, or society, or by such person; but if the child is illegitimate
and has not been recognized, the consent of its father to the
adoption shall not be required.

Going by the set of facts in this case, only one of two

persons particularly described by law may be considered
here as legally capable of giving the required written
consent. They are:
 Under Art. 340 of the Civil Code, the “parent, guardian
or person in charge of the person to be adopted” while the
other one is that mentioned in Section 3, Rule 99 of the
Rules of Court, describing it as each of the known living
parents “who has not abandoned such child. The father’s
consent here is out of the question as the child is
illegitimate and unrecognized.
Since the person whose written consent to the adoption
(Atty. Corazon de Leon Velasquez) is assailed by the trial
court as being unauthorized and had consequently caused
the rejection of the petition, this Tribunal will now look
into her alleged authority or lack thereof to give the
controverted consent.
Sometime in May of 1967, the child subject of this
adoption petition, undisputedly declared as only three days
old then, was
304

304 SUPREME COURT REPORTS ANNOTATED

Duncan vs. CFI of Rizal (Branch X)

turned over by its mother to witness Atty. Corazon de Leon

Velasquez. The natural and unwedded mother, from that
date on to the time of the adoption proceedings in court
which started in mid-year of said 1967, and up to the
present, has not bothered to inquire into the condition of
the child, much less to contribute to the livelihood,
maintenance and care of the same. In short, this parent is
the antithesis of that described in the law as “known living
parent who is not insane or hopelessly intemperate or has
not abandoned such child” We are convinced that in fact
said mother had completely and absolutely abandoned her
child. This Court has previously declared that
abandonment imports any conduct on the part of the
parent which evinces a settled12
purpose to forego all
parental claims to the child. Applying this legal yardstick,
the unidentified mother of the child in this case can be
declared, as she is hereby declared, as having abandoned
her child with all legal consequences attached thereto.
Having declared that the child was an abandoned one by
an unknown parent, there appears to be no more legal need
to require the written consent of such parent of the child to
the adoption. As had been said by this Court in the
aforecited case of Santos vs. Aranzanso, the parental
consent required by the law in adoption proceedings13refers
to parents who have not abandoned their child. The
question now is whether or not Atty. Corazon de Leon
Velasquez, the undisputed custodian of the abandoned waif
may be considered as the guardian under Art. 340 or the
person standing in loco parentis of said infant
contemplated in Art. 349 of the Civil Code.
It seems to Us that when the 3-day old baby was left to
and placed in the hands of Atty. Corazon de Leon
Velasquez, the helpless infant was in dire need of someone
who could give it protection and sustain its delicate and
fragile life. Atty. Velasquez was under no legal compulsion
to accept the child and to extend to it the protection and
care it badly needed. Since there had been no showing that
the identity of the natural mother was made known to the
trial court or to the herein petitioners, nor had said mother
seen fit to present herself before the court despite the
public notice given to the proceedings as required by law,
there clearly appears only one person who could be
considered as the guardian exercising

________________

12 Santos vs. Aranzanso, L 23828, Feb. 28, 1966, 16 SCRA 344.

13 Ibid.

305

VOL. 69, FEBRUARY 10, 1976 305

Duncan vs. CFI of Rizal (Branch X)

patria potestas over such abandoned child. Since there was

no guardian ad litem appointed by the court and the child
not being in the custody of an orphan asylum, children’s
home or any benevolent society, there could not have been
anyone other than Atty. Corazon de Leon Velasquez who
could, with reason, be called the guardian of said infant. It
was she who had actual physical custody of the infant and
who, out of compassion and motherly instinct, extended the
mantle of protection over the hapless and helpless infant
which otherwise could have suffered a tragic fate, like
being thrown into some garbage heap as had often
happened to some unwanted illegitimate babies. The least
this Court could do to recognize and acknowledge her good
Samaritan deed is to extend, as it hereby extends, to her
the recognition that she was a de facto guardian exercising
patria potestas over the abandoned child.
The trial court in its decision had sought refuge in the
ancient Roman legal maxim “Dura lex sed lex to cleanse its
hands of the hard and harsh decision it rendered. While
this old adage generally finds apt application in many
other legal cases, in adoption of children, however, this
should be softened so as to apply the law with less severity
and with compassion and humane understanding, for
adoption is more for the benefit of unfortunate children,
particularly those born out of wedlock, than for those born
with a silver spoon in their mouths. All efforts or acts
designed to provide homes, love, care and education for
unfortunate children, who otherwise may grow from cynical
street urchins to hardened criminal offenders and become
serious social problems, should be given the widest
lattitude of sympathy, encouragement and assistance. The
law is not, and should not be made, an instrument to
impede the achievement of a salutary humane policy. As
often as is legally and lawfully possible, their texts and
intendments should be construed so as to give all the
chances for human life to exist—with a modicum promise
of a useful and constructive existence.
The herein petitioners, the spouses Robin Francis
Radley Duncan and Maria Lucy Christensen, appear to be
qualified to adopt the child. There is no showing that they
suffer from any of the disqualifications under the law.
Above all, they have the means to provide the child with
the proper support, care, education and love that a growing
child needs, even if they have previously adopted another
child as theirs. The fact that even before they have applied
for legal custody and adoption of the infant they have
already showered it with love and care and had

306
306 SUPREME COURT REPORTS ANNOTATED
Duncan vs. CFI of Rizal (Branch X)

it baptized, with them appearing in the records of the

baptism as the parents of the child, speaks well of the
genuine desire of petitioners to have the child as their very
own. The child was born in May, 1967, and he will be at
this time, 1976, about 9 years of age. In all the years, from
the time he was turned over to the herein petitioners when
he was only about a week old, (there is no showing that the
said child was ever placed at any time in the care and
custody of some other persons) he had been cared for and
loved by the spouses Robin Francis Radley Duncan and
Maria Lucy Christensen. He must have known no other
parents than these persons. If we are now to sustain the
decision of the court below, this Tribunal will be doing a
graver injustice to all concerned particularly to said
spouses, and worse, it will be imposing a cruel sanction on
this innocent child and on all other children who might be
similarly situated. We consider it to be justifiable and more
humane to formalize a factual relation, that of parents and
son, existing between the herein petitioning spouses and
the minor child baptized by them as Colin Berry
Christensen Duncan, than to sustain the hard, harsh and
cruel interpretation of the law that was done by the
respondent court and Judge. It is Our view that it is in
consonance with the true spirit and purpose of the law, and
with the policy of the State, to uphold, encourage and give
life and meaning to the existence of family relations.
WHEREFORE, in the light of the foregoing, the decision
of the respondent Judge of the Court of First Instance of
Rizal, Branch X, in Sp. Proc. No. 5457, dated June 27,
1968, is hereby annulled, and We declare that the minor
Colin Berry Christensen Duncan is the adopted child and
the heir of petitioners Robin Francis Radley Duncan and
Maria Lucy Christensen.
No costs.
SO ORDERED.

          Teehankee (Chairman), Makasiar, Muñoz Palma

and Martin, JJ., concur.

Decision annulled.

Notes.—Aliens who are either non-residents or residents

but whose government the Republic of the Philippines has
broken diplomatic relations with are the only ones
disqualified to adopt under Article 335 of the Civil Code.
(Therkelsen vs. Republic, 12 SCRA 400; Cathey vs.
Republic, 18 SCRA 86).
307

VOL. 69, FEBRUARY 10, 1976 307

Duncan vs. CFI of Rizal (Branch X)

With respect to the objection that the adoption in this

particular case will result in a dual relationship between
the parties, that the adopted brother will also be the son of
the adopting elder sister, that fact alone should not prevent
the adoption. One is by nature; the other is by fiction of
 law. The relationship established by the adoption is limited
to the adopting parents and does not extend to their other
relatives, except as expressly provided by law. (Santos vs.
Republic,21 SCRA 383).
Adoption statutes, being humane and salutary, hold the
interest and welfare of the child to be of paramount
consideration and are designed to provide homes, parental
care and education for unfortunate, needy or orphaned
children and give them the protection of society and family
in the person of the adopter as well as to allow childless
couples or persons to experience the joys of parenthood and
give them legally a child in the person of the adopted for
the manifestation of their natural parental instincts.
(Malkinson vs. Agrava, 54 SCRA 66).
Where at the time of the filing of the adoption
proceedings, the plaintiff did not have the status of an
acknowledged natural child, he had no personality to
appear in said adoption proceedings; but such adoption did
not deprive him of his right to seek recognition as a natural
child. (Bongal vs. Vda. de Bongal, 20 SCRA 79).

——o0o——

308

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