A look at a recent decision of the Court of Session denying the biological siblings of an adopted person title to sue

Bloodwater

A Judge in the Outer House of the Court of Session has recently held that the biological siblings of an adopted person can have no title to sue, dismissing a claim for damages for ‘loss of society’ in an action raised by the natural siblings of a person adopted into another family when he was seven years old.

It was heard in court that the deceased, John Foreman, was in the armed forces and that he died in 2012 due to a breach of duty owed by the Ministry of Defence.

Actions for damages were raised by his widow, his adoptive parents, and his biological half-brother and half-sister, both of whom were born subsequent to the adoption. The defender (the MOD) challenged the claims of the siblings, arguing that any rights of biological family members were extinguished when the adoption took place.

The matter required consideration of the effect of adoption law on the definition of ‘relative’ as set out in sections 4 and 14 of the Damages (Scotland) Act 2011, which entitle a relative who is a member of the deceased’s immediate family to sue for damages, and specifically includes both whole and half-blood siblings of a deceased.

It was argued by Counsel for the pursuers that the half-siblings constituted members of the deceased’s immediate family within the meaning of the Act and that, while the Adoption (Scotland) Act 1978 may extinguish the rights of biological parents of adopted children, it did not have any impact on biological siblings.

Temporary Judge Gordon Reid QC felt that, under the 1978 Act, an adopted child was to be treated as if he had been born as a child of the adopting parents and as though he were not the child of anybody other than the adopting parents. He also made reference to the Scottish Law Commission’s ‘Report on Title to Sue for Non-Patrimonial Loss’, of August 2002, which made recommendations in relation to potential changes to the provisions of the Damages (Scotland) Act 1976. In the report, the Commission considered whether the biological parents of an adopted child should become entitled to sue for non-patrimonial loss, particularly where there was, perhaps, an open adoption, or where they had formed a close relationship later in life. The Commission specifically declined to recommend that biological parents ought to be entitled to sue in such a situation. One of the factors considered in coming to that view was that it was felt that a line must be drawn at the time of the adoption, and there was concern that, were biological parents entitled to sue for non-patrimonial loss in such a situation, the question may arise as to whether biological siblings and grandparents should also become so entitled. The Commission stated that their policy was to restrict title to sue for non-patrimonial loss to close members of the deceased’s immediate family.

Temporary Judge Reid QC held that the non-entitlement of biological family members to claim for loss of society of their adopted family member was ‘entirely consistent with the underlying philosophy of adoption legislation’. He went on to say that, ‘Ultimately, it is a matter for legal and/or social policy. The legislature must have a wide margin of appreciation or discretion in this area. It cannot be said, having regard to the Commission’s recommendations, that the matter was not considered or that the legislative result is devoid of all reasonable foundation.’

It could be argued that this is a harsh interpretation of the legislation, particularly in a situation where the biological siblings of an adopted person have formed a close relationship with them later in life (given that they, presumably, had no involvement or say in the adoption process itself). However, Temporary Judge Reid QC felt that a line must be drawn somewhere and pointed out that consideration had already been given to the matter and the 2011 Act duly reflected the policy decision taken.