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McGill & Co is a Scottish immigration law firm specialising in UK immigration, nationality and refugee law.

The argument for adult adoption

26 September 2018 Grace McGill Personal Immigration

The adoption process in the UK is subject to intense scrutiny and legislation to prevent child trafficking and exploitation and is designed for minors under the age of 18 and not adults.

The purpose and paramount consideration of the legislation is to ensure that there is a need to safeguard and promote the welfare of the chid in question throughout the child’s life.

A child is considered to have reached adulthood when they attain the age of 18 years of age. 

But a petition is presented to the Scottish Parliament ( Public Petition PE10701 ) by  Nathan Sparling, calling for a change in the law to allow adoption for individuals over the age of 18 years replying on the right to respect for family and private life as enshrined within the Human Rights Act 1998.

He argues that “the sense of belonging and the importance of family life brings great benefits to people and that this should be reflected in the law”.

The most obvious questions is what legal status the adoption would create and what rights and responsibilities would result if the ‘adult’

Is able to look after their own welfare. On the basis of present legislation the adopter would be awarded parental rights and responsibilities which would be in most part otiose .

But Mr Sparlings argument has merit so far as the Human Rights Act is concerned and the right to respect for private and family life as secured . Article 8 of the European Convention on Human Rights provides:

  1. Everyone has the right to respect for his private and family life …
  2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society … for the protection of health or morals, or for the protection of the rights and freedoms of others with Article 6 providing enshrines the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal.

Such arguments have a general form of judicial analysis :

Is there interference with the applicant’s right to respect for family life? The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and measures that hinder such enjoyment amount to an interference with the right protected by article 8. Interference is not however the sole determining factor.

There are three further matters to consider :

Was the interference in accordance with the law? Mr Sparling will argue that the present legislation is arbitrary and prejudicial and as such cannot be in accordance with the law.

Does the interference pursue a legitimate aim? In today’s changing and challenging world, this will be difficult to maintain a legitimate aim argument.

Were the measures taken necessary in a democratic society? This will turn on whether the reasons for refusing legislative amendments are relevant and sufficient.

Mr Sparling also highlights that adult adoption is legal in certain jurisdictions such as USA, Canada, Japan, Germany & Spain in varying circumstances.

Mr Sparling will give oral evidence to the Petitions Committee on Thursday 27th September.

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