A recent Supreme Court decision in relation to English adoption laws reiterated the finality of the process of adoption in all but the most exceptional of cases. The ruling has been closely watched by family law practitioners on both sides of the border, as it speaks to one of the most fundamental principles of adoption law: that an adoption order, once granted, is intended to last a lifetime. For adoptive parents and adoptive families in Scotland, the judgment offers a timely reminder of just how settled, and how deliberately permanent, the legal effect of adoption is.
The background to X and Y
The facts in X and Y (Children: Adoption Order: Setting Aside) were unusual. Two sisters (X and Y) had been placed for adoption with their adoptive mother (AM) in 2012, after having spent time in foster care. X and Y spent considerable time with their birth mother (BM) throughout their foster placement and also after their placement with and adoption by AM. At one stage, BM had moved into AM’s home after fleeing an abusive relationship.
The application to revoke the adoption orders
The children then moved out of their home with AM in 2021, and moved back in with BM. Two years later, AM applied to the court to have her adoption orders revoked, although made clear that she was not rejecting the children (who were now adults aged 18 and 19) but was making the application because of the children’s own wishes. Both children supported her application. The decision for the court centred around whether welfare grounds could be used to set aside the adoptions following a breakdown in the adoptive placement.
The Court of Appeal and Supreme Court decisions
Whilst in the Court of Appeal, it was decided in this case that the orders could not be set aside, underlining that adoptions, once granted, are intended to be final. The appeal decision was clear that adoption orders “have a peculiar finality and are intended to be irreversible, lasting throughout life, as if the child had been born to the adopter. That high degree of permanence…is, at its core, what adoption is all about”. The Supreme Court upheld this decision,that adoptions should be “permanent and irrevocable” except in exceptional cases where an Order was wrongly granted in the first place. The court that adopted children are treated in law in the same way as biological children, and so in the same way as parentage cannot be reversed, neither can adoptions. Human rights arguments raised on behalf of the adopted children did not displace this irrevocable nature.
What this means for Scotland
The finality of Adoption Orders in Scotland
Adoption in Scotland is designed to provide stability, security, and lifelong belonging and identity within a new family unit. There has not been a reported case which has directly addressed the question of whether an adoption order can be cancelled or revoked in Scotland on welfare grounds, however the Scottish courts did allow the reduction (that is, the revocation) of an adoption in a 2005 case, Cameron v Gibson, where the Order itself had been wrongly granted in law due to the person adopted being over the legal upper age limit per the laws which existed at that time. That judgment did, however, comment that there are “strong policy reasons for treating adoption orders competently made as generally sacrosanct and not subject to revocation or reduction save in exceptional circumstances”.The position of adult adoptees
As well as the question of revocation, the age of the children and length of time between placement and the application for revocation of the adoption Order in X and Y and the facts of the case in Cameron v Gibson highlight that adoptions have effects on adoptees over a lifetime, stretching beyond childhood through the rest of their lives. Indeed, the case of Cameron was heard over 50 years after the adoption in question, and raised matters in relation to inheritance. But can an adult adoptee be the subject of a fresh adoption application in Scotland? It is a question our adoption lawyers are asked from time to time, and at the current time the answer is no. At the date the application to adopt is made to the court, the adoptee must be under the age of 18.Get in touch
As highlighted in X and Y, whilst adoption is an invaluable way to provide security, stability, identity, and belonging to children, and an alternative route for individuals to start or grow their family, it is a lifelong commitment and not one to be entered into without taking advice and considering all of implications.
If you are considering adoption, call us today on 0141 674 4357 to speak to our family law team.
Our expert adoption solicitors in Glasgow and Edinburgh are regularly instructed in adoption cases throughout Scotland, and will be able to discuss the process, legal implications and costs with you in detail.
About the author:
Lynsey Brown is a partner at Jones Whyte, accredited by the Law Society of Scotland as a specialist in both Family Law and Child Law. She advises clients on different Family Law matters including adoption, surrogacy, divorce and separation. Lynsey can be contacted via joneswhyte.co.uk.
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
