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Step-parent adoption; what if the other parent withholds their consent?

Step-parent adoption; what if the other parent withholds their consent?

The recent judgement by Sheriff Kelly in the case of X v Y is a reminder of how seriously the Scottish courts treat adoption.

Adoption breaks the legal link between parent and child and as the case of X v Y demonstrates, this link should not be broken lightly.

The facts

The child in the case (“A”) was 14 years old. After his parents’ separation he eventually ended up living with his father.

He had contact with his mother, but that ceased in 2011 when he expressed the view that contact with his mother was making him feel bad about himself.

A’s parents divorced and in 2010 A’s father remarried.

The home that A lived in with his father and step-mother was a comfortable and caring one and he enjoyed an excellent relationship with both his father and his step-mother.

A’s step-mother applied to adopt him.

She considered the adoption was necessary for A’s security, should anything happen to his father.

A consented to the adoption, as did his father.

However, his mother indicated that whilst she did not seek to disrupt the current care arrangements, she did not consent to her son’s adoption. She opposed it.

As part of the normal adoption process, reports on the proposed adoption were prepared by both a social worker and a solicitor.

Both of them recommended that the adoption application be granted.

Plain-sailing from hereon in?

Sadly (for some of the individuals involved anyway) not…

Two conditions required to be fulfilled before adoption could be granted in this case:

  1. The consent of the child to that adoption. A did consent.
  2. The consent to adoption by both parents, failing which for their consent to be dispensed with.

As the mother did not consent to adoption the Sheriff had to consider whether her consent could be dispensed with.

The Adoption and Children (Scotland) Act 2007 provides that a parent’s consent to adoption can be dispensed with where the parent is, in the opinion of the court, unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so.

The court can also dispense with the mother’s consent on, what might be termed, the welfare ground.

Inability to discharge parental rights satisfactorily

The Sheriff accepted the mother’s argument that there was no inability on her part to discharge her parental rights and responsibilities.

She was keen to discharge her parental rights and responsibilities; but in the face of a child who had become disenchanted with contact, it was simply that she was not being allowed to do so.

Welfare ground

Whilst in many cases, the granting of the adoption order would pave the way for a child to reside in a stable family unit, A already lived in a stable family unit.

The granting of the adoption order would not in any way enhance the security or stability of that family unit.

The Sheriff also had to consider A’s views.

Whilst the views of a 14 year old carry considerable weight, the Sheriff held that a preference for one parental regime over the other was not a strong enough reason to divest A’s mother of her legal attachment to A.

The mother’s consent to adoption could not be dispensed with.

The outcome

The adoption petition was refused although the Sheriff made an order was made granting A’s step-mother full parental responsibilities and rights in respect of him.

The lesson

Whilst adoption can be seen as a way of removing a troublesome parent from a child’s life, the legal bond between parent and child is a very strong one, which can only be broken in exceptional circumstances.

All the alternatives to adoption should be explored before applying to the Court for a step-parent adoption.| Brodies family law blog.

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