Natural siblings of adopted person denied damages claim

Biological siblings of a person who has been adopted into a different family have no entitlement to claim damages following the wrongful death of that person, a judge has ruled.

Judge Gordon Reid QC in the Court of Session dismissed claims under s 4(3) of the Damages (Scotland) Act 2011 by the biological half brother and half sister of John Foreman, arising out of his death in 2012. Mr Foreman was adopted into the Foreman family in 1987, when he was aged seven. His adoptive parents also sued. The two half siblings, who were both born long after the adoption, had the same father as the deceased. The father also sued but abandoned his claim as an individual.

For the siblings it was argued that they came within s 14 of the 2011 Act, which did not distinguish between biological and non-biological siblings. Section 39 of the Adoption (Scotland) Act 1978 extinguished the claims of biological parents but did not affect siblings. In terms of the European Convention on Human Rights the legislation should be read so that there was no discrimination between biological and non-biological siblings in relation to this aspect of family life.

Judge Reid said that under the Adoption Act, a child made the subject of an adoption order was to be treated as a child born to the adopting couple and not as the child of any other person. The 2011 Act followed a report of the Scottish Law Commission, which declined to recommend that biological family members of a deceased adopted person should be entitled to sue for non-patrimonial loss in respect of the death, and a further report that recommended that such a right to sue should be restricted to relatives who then currently constituted the deceased’s immediate family. The 2011 Act reflected that recommendation, which did not change the pre-existing law on this point.

He continued: “In my opinion, it is not absurd or unjust that the 2011 Act does not give any entitlement to sue to biological members of the family of a deceased who has been adopted. All this is entirely consistent with the underlying philosophy of adoption legislation. Ultimately, it is a matter for legal and/or social policy. The legislature must have a wide margin of appreciation or discretion in this area. It cannot be said, having regard to the Commissions’ recommendations, that the matter was not considered or that the legislative result is devoid of all reasonable foundation. A line has to be drawn somewhere. Of its nature, the numbers falling within the class will be limited. Some will be included and others excluded, but that does not mean that Convention rights have been violated.”

The action was dismissed so far as brought by the half siblings.

Click here to view the judgment.