T, Petitioner
| Jurisdiction | Scotland |
| Judgment Date | 26 July 1996 |
| Date | 26 July 1996 |
| Court | Court of Session (Inner House - First Division) |
Inner House of the Court of Session
Before the Lord President (Lord Hope), Lord Wylie and Lord Weir
Scots law - adoption - application by homosexual - no objection in principle
There was no fundamental objection in principle to an application for the adoption of a young, disabled boy by a homosexual man who proposed to bring him up jointly with his male partner. Such an application fell to be determined having regard to all the circumstances of the particular case, treating the prospective adopter as an individual rather than as a member of a class, with at the same time first consideration being given to the need to safeguard and promote the welfare of the child.
In determining such an application, a judge should not permit his personal views or private beliefs to affect his judgment but should apply public policy.
In determining whether such an application was within the intendment of the Adoption (Scotland) Act 1978, Scots law should treat the European Convention on Human Rights (1953, Cmd 8969) as an aid to construction in the manner in which it was used by the English courts, contrary to what had been held in Kaur v Lord Advocate (1981 SLT 322).
The First Division of the Inner House of the Court of Session, so held in a petition by AMT for authority to adopt SR, allowing a reclaiming motion, recalling the interlocutor of the Lord Ordinary, Lord Gill, finding that the natural mother of SR was withholding her agreement unreasonably in terms of section 16(2)(b) of the Adoption (Scotland) Act 1978 and making an adoption order in favour of the petitioner.
Mr Peter Gillam for the petitioner; Mrs Janys Scott for the curator ad litem and the reporting officer; Mr Robert MoCreadie as amicus curiae.
THE LORD PRESIDENT said that the Lord Ordinary had refused the petition for two reasons. The first was that he was not persuaded that the mother was withholding her agreement unreasonably. The second was that in his view the application raised a fundamental question of principle that could not adequately be resolved on the basis of the information that had been before him.
Factual background
The child had a syndrome that occurred in the children of mothers, such as his own, who had taken certain medicaments as a treatment for their epilepsy. He had abnormal forearms, a cleft palate, an abnormal left iris, and was profoundly deaf, unable to speak, and unable to walk unaided.
He had been in foster care in England until the age of four. Then, following a favourable report by a guardian ad litem, the English High Court had authorised his removal to Scotland, where be had been placed with the petitioner as his prospective adoptive parent. The petitioner had for many years worked as a nurse.
It could he said that all those involved in the placement, including the petitioner and his companion, deserved the support of the court in meeting the challenges of this highly unusual and very difficult case.
The immediate result of a refusal to make an adoption order would be to remove the child from the security of a settled life in a home where he had been for more than 18 months and was happy and well cared for. The steps
which were being taken so...
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