Background to the petition
In Scotland, in keeping with the rest of the UK, only a person under the age of 18 may be adopted.
Nathan is arguing many young people do not realise this is the case before it is too late.
Nathan would like to be adopted by his step-dad, Brian, who came into his life at the age of 12 and who married his mum when Nathan was 16. Their full story can be found in various media articles, including this one by the BBC from March of this year.
So-called ‘blended families’ are becoming more and more common in Scotland (and elsewhere) and are raising new challenges for policymakers.
In general terms, governments want to offer support for step-parents who are making a positive contribution to the lives of children and young people. However, law-makers also want to ensure protection for the rights of all concerned, including any biological parent outside the new ‘blended’ family unit.
The legal options available to step-parents
In Scots law, a step-parent does not acquire legal rights and responsibilities over a step-child by marrying or living in with a child’s parent.
Instead there are two main legal options available while the child is under 18.
One option is applying to the court, under the Children (Scotland) Act 1995, for parental responsibilities and rights (known as ‘PRRs’). The other is adoption of the child under the Adoption and Children (Scotland) Act 2007, using a simplified procedure available to step-parents. Around 60% of adoptions (of under 18s) in Scotland are now by step-parents.
A key difference between the two procedures is that, applying for PRRs, does not, of itself, remove the PRRs of the biological parent living separately from the child. The child’s statutory right to inherit from that parent is also unaffected.
On the other hand, adoption completely severs the child’s legal ties with the biological parent. It removes that parent’s PRRs and ends the child’s statutory right to inherit from that parent.
The significance of these differences can vary depending on the individual circumstances of the family concerned.
And what of step-families where the people involved want to formalise their relationship when the child in question is now a young adult?
By this point legal options are much more limited. It is possible for the young person to change his or her surname to reflect that of their step-parent. It is also possible for a step-parent to make a will benefiting his or her step-child.
After that options are largely symbolic – gestures between those concerned showing they regard themselves in a parent-child relationship. Financial support, such as a deposit to buy a first home, would be one such practical gesture.
However, for some step-families these legal and practical steps aren’t enough – they want their emotional bonds to be fully recognised in law. So, should the age limit for adoption be changed?
To change the law or not?
SPICe prepares background briefings to support the Public Petitions Committee in its work. Its briefing on this petition covers various topics.
The briefing notes that adoption of over 18s is prohibited in some countries in the world (e.g. New Zealand; South Africa and the rest of the UK). However, other countries permit it (e.g. Japan, as well as most parts of USA, Canada and Australia).
In some countries the circumstances in which adoption of an adult can occur are quite wide ranging, allowing bonds formed in adulthood to be recognised in law. Examples include the relationship which exists in some long-term friendships or between an adult and their carer.
Other countries allow the adoption of an adult only where a parent/child-type relationship existed when the adult was under 18. Some legal systems also limit the window of opportunity for an adult adoption to take place. In Colorado for example, the petitioner would already be past the relevant age-related cut-off of 21.
What academics and practitioners say
Some academic lawyers who have studied adult adoption in other countries suggest benefits.
They argue that an adoption in adulthood can increase the adopted person’s sense of identity and sense of security associated with belonging to a family unit. Furthermore, participants welcome adult adoption as giving appropriate legal recognition to the practical and emotional situation which has already existed for many years.
On the other hand, other articles by legal practitioners and academics identify challenges associated with changing the law.
One key issue is how to fit adult adoptions into a legal framework in Scotland which assumes that PRRs come to an end at 16 (or, at the latest, 18). A new type of court order might be possible but this would require further discussion and policy development.
An objection to adult adoption in principle is that the ethos of the current adoption system is focused on safeguarding the welfare of a child. Accordingly, an argument against adult adoption is that there is a dwindling welfare need once the young person reaches adulthood.
Other policy issues associated with adult adoption are equivalent to issues arising in step-parent adoptions of under 18s. For example, the permanence of adoption makes it a very significant legal step.
Arguably, adoption also sends a message to the biological parent being legally replaced that he or she should sever any emotional ties with his or her biological child. Adoption is unlikely to encourage this biological parent to improve the relationship in the future. The significance of these considerations may vary according to individual family circumstances.
Nathan Sparling is due to give oral evidence to the Petitions Committee on 27 September.
Sarah Harvie-Clark, Senior Researcher, SPICe