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Is there a case to be made for adult adoption in Scotland?



The spotlight has been on step-parent adoptions in recent weeks, with Nathan Sparling, aged 27, launching a campaign to have the law in Scotland changed to allow adults to be adopted. The current age limit for someone to be adopted in Scotland is 18.

The background – why is adult adoption an issue?

Like many people who we take adoption enquiries from, Mr Sparling only became aware of the upper age limit when he was already over 18, and therefore it was too late for his step-father, who had raised him since he was 13, to apply to the Courts for an adoption Order. An Order from the Court is the only way to create a legal parent-child relationship.

Mr Sparling had said that his main motivation for wanting to be adopted is for a legal recognition of his relationship with the man he considers to be his dad. It is easy to understand a desire to be seen in the eyes of the law as parent and child in that situation. An extension, or abolition, of the upper age limit would also, argued Mr Sparling, avoid the need for children and their step-parents to make a life-changing decision against an arbitrary time limit. He also put forth arguments in relation to inheritance planning as further reasons why adult adoptions should be permitted.

But is that enough to merit an overhaul of the current legislation and a shift in the principles which govern current adoption law? The Scottish Government answered that question in response to Mr Sparling’s campaign; it has confirmed that there are no plans to extend the upper age limit beyond eighteen.

What is the law on adoption in Scotland?

Mr Sparling’s campaign has to be viewed within the context of existing adoption laws and the principles behind those laws. The paramount consideration for the Court when asked to consider an adoption application is the need to ‘safeguard and promote the welfare of the child throughout the child’s life’.

Adoption, therefore, currently exists to provide a child with a secure, stable family life in situations where their biological parent or parents have been unable or unwilling to provide that. Whilst the Order requires someone to look after the child’s welfare throughout their life, and not just throughout their childhood, arguably once an individual reaches adulthood their need for someone to promote their welfare diminishes.

Linked to this is the fact that, currently, adoption orders automatically confer on the adopter parental rights and responsibilities (PRRs) in respect of the child.  PRRs are necessary for a parent to be able to look after a child’s welfare, which is the impetus behind the granting of an adoption Order, and include such things as having the right to determine where the child lives, to act as the child’s legal representative, and to provide the child with direction and guidance.

For every parent throughout Scotland, all PRRs have expired in relation to their child by the time the child reaches 18. It therefore would create an inconsistency in family law to have a situation whereby an Order for adoption which brings with it PRRs, is granted in relation to adults whilst in all other families this is not the case (nor indeed possible). It has been suggested that a different type of adoption Order could be created for adult adoptions which would not confer PRRs on the adopter. However, there would require to be a discussion about what such an Order would achieve and what legal principles would apply to it.

Adoption and inheritance

It is also arguable whether an adoption Order is the most appropriate way to secure inheritance rights in step-families. Whilst the Order would confer automatic rights in succession on the child, and in some ‘blended’ families put the child on an equal footing with step-siblings, for instance, there are other, less interventionist, ways for (step-)parents to provide for their children upon death, the most obvious being the making of a Will.

The use of adoption only as a means to secure inheritance rights could be a step too far in the extension of adoption laws, and away from the underlying principles of adoption. Safeguards would require to be put in place to prevent this process from being used as a vehicle for estate planning.

What happens next?

Adult adoption is already legal in other jurisdictions, however, such as the US, Canada and Japan, and perhaps much could be learned by an analysis of the regulations in place there.

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