The role of a family lawyer is one which often involves dealing with families that are splitting up. Adoptions are one exception. Whilst children are often adopted by third parties following a period of time spent living in the applicant's household, step -parent adoptions are also common.

A step-parent adoption is a case where a person who is married to or in a civil partnership with the biological parent of a child seeks to adopt the child. The granting of an adoption has two implications. Firstly, it removes the parental rights and responsibilities previously held by the other biological parent (the one who is not married to the applicant). Secondly, it bestows those rights and responsibilities on the step-parent and puts them in the position as if they were the child's biological parent. This means that the adoptive parent has full rights and responsibilities in respect of the child. These rights and responsibilities can be found at Section 11 of the Children (Scotland) Act 1995. The rights exist to permit the parent to discharge their responsibilities towards the child. They include, for example, the right to determine where the child ought to live, the ability to consent to medical treatment on behalf of the child and the right to make decisions regarding the child's education. Upon death, the child has same entitlement to make a claim against the applicant's estate as his or her biological children. It is worth mentioning that if the adoptive parent was then to separate from the child's biological parent, these rights do not disappear. Both the biological parent and the adoptive parent would be entitled to seek residence of the child or contact with him/her.

Adopting a child is clearly a big step. It is a court-based process. Notification that the application has been made must be provided to both biological parents. The court must be satisfied that this has been done. If either biological parent does not accept that the child ought to be adopted by the step-parent, the court must take account of their objections when deciding whether or not to grant the application. The Sheriff must base his or her decision on whether it is in the child's best interests for the application to be granted.

A child can be adopted until the age of 18. After that, the court cannot competently consider an application. One of the most memorable cases I acted in involved a child of 15 who we will call James. James had been raised since the age of three by his mother and her husband. His biological father had not had a relationship with him for years, save for the odd text message. His mother had gone on to have a second child with her husband, the applicant. Both children were viewed by the applicant as being "his". He did not differentiate between them. By the same token, he was respectful of the child's views and did not want to force James into a legal relationship which made him uncomfortable. The family told me that James himself had come to the applicant to ask if he would consider adopting him. Through tears, the applicant told me that it was one of the happiest moments of his life. Papers were served on James' biological father (once we had tracked him down). They were ignored. James himself sent a text to his biological father to ask him to confirm that he was not going to oppose the application and he received a response telling him to "please himself". I was astonished at James's response to that. To him, that message simply reinforced what he already knew - that he had a loving Dad and that it was not the man who had provided half his DNA. It was the man who had turned up at parents' nights, reassured him when he was scared and put his needs before his own. The Sheriff agreed with James and granted the adoption petition. It was rewarding for me to be part of a case where I knew without any doubt, that I had changed a child's life for the better.

Adoption can be an option for many families where a parent who is raising the child has no blood relationship with him/her. Clearly, it is not a decision which ought to be taken lightly, but in the right circumstances, it can enhance a child's life greatly. If you would like more information regarding adoption please contact a member of the family team.


Donna McKay

Legal Director