Loss of Society and Adoption

In Amanda Foreman & Ors v The Advocate General for Scotland [2016] CSOH 94 an interesting question arose as to whether the biological half siblings of a deceased person have title to sue for loss of society and guidance in a situation where the deceased had been validly adopted.

An action for damages which included a loss of society and guidance claim under section 4(3) of the Damages (Scotland) Act 2011 was raised by the late Mr Foreman’s family. This included his adoptive parents amongst other family members. The late Mr Foreman was validly adopted in England in 1987.

The sixth Pursuer was the late Mr Foreman’s biological half-brother and the seventh Pursuer was the late Mr Foreman’s biological father suing as guardian for the late Mr Foreman’s biological half-sister. A claim made on behalf of the biological father as an individual was abandoned. Both half-siblings were born well after the late Mr Foreman had been adopted.

Section 14 of the Damages (Scotland) Act 2011 defines which category of relatives are entitled to sue under the Act. Express provision is made for brothers or sisters of the deceased irrespective of whether they are of the whole or half-blood.

Counsel representing the Advocate General for Scotland (the Defender) challenged the late Mr Foreman’s half siblings’ entitlement to sue under the Damages (Scotland) Act 2011. It was argued that as a matter of law, by virtue of adoption, there was no sibling relationship between the late Mr Foreman and his half-siblings. The genetic connection was irrelevant as far as the 2011 Act was concerned when viewed in light of adoption law. Accordingly it was submitted both half siblings did not have title to sue and their claims ought to be dismissed.

Against this, it was argued by Counsel for the Pursuer that adoption law should be construed in a purposive manner to avoid giving rise to an injustice. It was acknowledged that Section 39 of the Adoption Act 1978 extinguished claims made by biological parents when a valid adoption had taken place, but it was argued that this did not affect biological siblings.

It was also submitted that Article 8 of the European Convention of Human Rights (the right to respect for family life) was ‘in play’ and to deny the claims of the two half siblings would be discriminatory and incompatible with Article 14 of the ECHR when read in conjunction with Article 8. On that basis it was suggested the Court ought to read down the legislation in a way to ensure it was Convention compliant under Section 3 of the Human Rights Act 1998.

In reaching a decision the Court dismissed both the sixth and seventh Pursuer’s claims.

The Court considered the relationship between the Adoption legislation and the 2011 Act and found that it was not absurd or unjust to exclude biological family members of the deceased from an entitlement to sue when the deceased had been adopted. It was a matter for legal and/or social policy and the legislature must be given a “wide margin of appreciation”.

The Court rejected the Convention rights argument put forward by Counsel for the Pursuer. Accepting such an argument would not have involved the Court reading down the legislation, but rather what was being proposed was for the Court to amend the legislation and this would go against the grain of the legislation.

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