Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 94

PD2396/15

OPINION OF JUDGE J GORDON REID, QC

In the cause

AMANDA FOREMAN and OTHERS

Pursuer;

against

THE ADVOCATE GENERAL FOR SCOTLAND

Defender:

Pursuer:  Pilkington;  DAC Beachcroft Scotland LLP

Defender:  Tait;  Morton Fraser LLP

5 July 2016

Introduction

[1]        This is an action of damages for inter alia loss of society and guidance under section 4(3) of the Damages (Scotland) Act 2011 arising out of the death of the late John Foreman (the late Mr Foreman) in 2012.  The question which arises is whether the sixth (Samuel C) and seventh pursuers (Michael C) have title to sue.  That question arises because the late Mr Foreman was validly adopted in England by the second and third pursuers (Robert F and Lynne F) in 1987, when he was seven years old.  The sixth pursuer (Samuel C) is the biological half-brother of the late Mr Foreman, born long after the adoption.  The seventh pursuer (Michael C) is the late Mr Foreman’s biological father.  He sued as an individual (but that aspect of his claim has been abandoned) and now sues as guardian on behalf of Marie C who is the biological half-sister of the late Mr Foreman, also born long after the adoption.  The seventh pursuer (Michael C) is the biological father of both the sixth pursuer (Samuel C) and Marie C.

[2]        The answer to this question requires consideration of the effect of adoption law on section 4(3)(b) and 14(1)(c) of the Damages (Scotland) Act 2011 which entitles a relative who is a member of the deceased’s immediate family to sue for such damages, and expressly includes a brother or sister of the deceased whether of the whole blood or the half blood.[1]

General background

[3]        The late Mr Foreman was born in 1979.  He was married in 2004.  There were two children of the marriage born in 2006 and 2007.  The late Mr Foreman was a Lance Corporal in the Armed Forces.  In circumstances which need not be specified here, he is said to have exhibited suicidal tendencies and died in 2012 through breach of duty owed by the Ministry of Defence.  Liability and quantum are both in issue.

[4]        The first pursuer (Amanda F) is the late Mr Foreman’s widow.  She sues as an individual and as guardian of the children.  The second pursuer (Robert F) and the third pursuer (Lynne F) sue as the late Mr Foreman’s adoptive parents.

[5]        The fourth pursuer (Michael Foreman or Culp) is the deceased’s biological brother of the full blood.  He was adopted by the second (Robert F) and third pursuers (Lynne F).  The fourth pursuer’s title to sue is not challenged.  The fifth pursuer (Katrina S) is the late Mr Foreman’s adoptive sister.  The fifth pursuer’s title to sue is not challenged.

[6]        As already noted, the seventh pursuer (Michael C) is the biological father of the sixth pursuer (Samuel C) and of Marie C.  The sixth pursuer (Samuel C) is the late Mr Foreman’s half-brother.  They shared one parent, namely Michael C (the seventh pursuer).

[7]        Marie C is the late Mr Foreman’s half-sister.  They also shared one parent, namely Michael C (the seventh pursuer).

Submissions

[8]        Counsel, on behalf of the defender, in support of her concise note of argument and complimentary oral submission, argues that the late Mr Foreman’s legal status changed in about 1987 when he became a child of the second (Robert F) and third pursuer’s (Lynne F) family by virtue of his adoption.  There was a legal transplant from one family to another.  Thus, when the sixth pursuer (Samuel C) and the seventh pursuer ([Michael C on behalf of] Marie C) were born, the seventh pursuer (Michael C) was not, as a matter of law, the parent of the late Mr Foreman.  Accordingly, as a matter of law, the sixth pursuer (Samuel C) and Marie were not a brother or sister of the late Mr Foreman.  The genetic connection was irrelevant.  In the eyes of the law, there is no sibling relationship with the late Mr Foreman.  Neither section 14(1)(c) nor section 14(2) of the 2011 Act applies and these two pursuers (sixth and seventh) therefore have no title to sue.

[9]        In the course of her submissions, Miss Tait referred me to In Re G (adoption:  Unmarried Couple[2], Adoption Act 1976 ss38-40, Adoption (Scotland) Act 1978,  Adoption and Children (Scotland) Act 2007, Succession (Scotland) Act 1964, Damages (Scotland) Act 1976, schedule 1, (definition of “relative” in force from December 2005 to May 2006), Family Law (Scotland) Act 2006, Damages (Scotland) Act 1976, schedule 1 (definition of “relative” from May 2006 to July 2011), Damages (Scotland) Act 2011, The Law Relating to Parent and Child in Scotland by Kenneth McK. Norrie, 3^rd ed., Report on Title to Sue for Non-Patrimonial Loss (Scot Law Com, No 187), and Report on Damages for Wrongful Death (Scott Law Com No 213).

[10]      Miss Tait further submitted that the law of adoption is Convention compliant.  There has been no interference with any right to respect for family life, far less any violation.  Even if there has been any interference, then it is in accordance with the law.  No further reading down is required because the adoption legislation is already Convention compliant.

[11]      Counsel for the pursuer submits that the sixth pursuer (Samuel C) and the seventh pursuer (Michael C, [qua guardian of Marie C]) qualify as a member of the deceased’s immediate family because they are his half siblings and fall within section 14 of the 2011 Act.  The same argument applies to both pursuers.  The 2011 Act, he submits, does not distinguish between the biological and the non‑biological.

[12]      While section 39 of the 1978 Act extinguishes the claims of biological parents, it does not affect biological siblings.  If the defender is correct, the result would be absurd, offend against common sense, would be devoid of any rationality and would give rise to injustice.  Section 39 of the 1978 Act should be construed purposively so as to avoid such injustice, absurdity, anomaly and contradiction which could not have been attended by Parliament.  Mr Pilkington referred to R (Edison First Power Ltd) v CVO,[3] Barratt Scotland Ltd v Keith.[4] Attorney General’s Reference (No 5 of 2002),[5] and R (app of Quintaville) v Secretary of State for Health.[6]

[13]      Mr Pilkington also submitted that article 8 ECHR (right to respect for family life) was in play.  To deny the sixth pursuer (Samuel C) and/or the seventh pursuer (Marie C) title to sue for the death of their brother but to allow non-biological siblings the right to do so would be discriminatory and incompatible with Article 14 of ECHR when read with Article 8.  Such rights to sue are an important aspect of family life.[7]  Section 3 of the Human Rights Act 1998 requires the court to read down and give effect to the legislation in a way which is compatible with Convention Rights.

Discussion

Issue

[14]      The question is whether the sixth and seventh pursuers fall within section 14 of the 2011 Act.

The effect of adoption

[15]      By virtue of sections 39 of the 1976 and 1978 Adoption Acts, a child who is the subject of an adoption order is to be treated in law, where the parents, as here, are a married couple, as if he had been born as a child of the marriage, and as if he were not the child of a person other than the parties to the marriage.  These provisions applied to the late Mr Foreman when he was adopted by the first and second pursuers (Robert F and Lynne F) in 1987.  It seems to be common ground and that the purpose and effect of these adoption provisions is the same in England and Scotland.  The Scottish statutory provisions are essentially repeated in sections 39 and 40 of the Adoption and Children (Scotland) Act 2007.  In similar vein, for all or at least most purposes relating to succession to the deceased person, an adopted person is to be treated as a child of the adopter and not as a child of any other person.

[16]      Norrie notes[8] that the adoption legislation creates a new relationship of parent and child which, for practically all legal purposes, replaces the previous relationship.  An adoption order severs irrevocably and for all time the legal relationship between a child and her family of birth.[9]

Evolution of entitlement of family members to sue

[17]      Brothers and sisters of a deceased became entitled to sue by virtue of paragraph (1)(e) of Schedule 1 to the Damages (Scotland) Act 1976.  Further amendments were inserted by section 35 of the Family Law (Scotland) Act 2006.

[18]      For present purposes, the applicable provisions are in section 14(1)(c) of the Damages (Scotland) Act 2011; relative means inter alia a brother or sister of the deceased.  Further, in deducing such a relationship for the purposes of the definition of relative, any relationship by affinity is to be treated as a relationship by consanguinity, and any relationship of the half blood is to be treated as a relationship of the whole blood; that simply reflected pre‑existing legislation.[10]

Relationship between Adoption Legislation and the Damages (Scotland) Act 2011

[19]      In 2001, the Scottish Ministers requested the Scottish Law Commission to make recommendations as to possible changes in the provisions of the Damages (Scotland) Act 1976 in relation to inter alia non-patrimonial loss.  The Commission, in its Report on Title to Sue for Non-Patrimonial Loss,[11] recommended that the right to seek non-patrimonial damages for the death of relative should be restricted to those who had an extremely close relationship with the deceased.  The Commission’s overall policy was to retain the concept of the deceased’s immediate family.  The Commission considered whether the biological parents, the biological brothers, sisters and biological grandparents of an adopted child should become entitled to sue for non‑patrimonial loss.  After obtaining the views of consultees and reflecting on the matter, the Commission declined to make any such recommendation.  This was largely on the basis that this would constitute a significant departure from the existing principle that adoption terminates the legal relationship between child and biological parent.  It also raised the question of where the line should be drawn.  The Commission expressly declined to recommend that the biological family members of a deceased, who was an adopted child, should become entitled to sue for non‑patrimonial loss.  No express mention was made in the 2006 or 2011 legislation of the biological family members of such deceased.

[20]      In a further report, following the issue of a discussion paper and consultation, the Scottish Law Commission canvassed a wide range of options for the reform of the law dealing respect of damages for wrongful death.[12]  The Commission again considered the relatives’ right to damages for non‑patrimonial loss.  It recommended that the right to sue for non‑patrimonial loss should be restricted to those relatives of the deceased who then currently constituted the deceased’s immediate family.  The 2011 Act reflects that recommendation which did not change the pre‑existing law on this point.

[21]      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.

[22]      I do not dispute the principles of statutory interpretation advanced by Mr Pilkington.  His difficulty is the all-embracing effect of the adoption legislation, of which the Scottish Parliament was clearly aware when passing the 2011 Act.  The law of adoption is Convention compliant as can be seen from Lester, Pannick & Herberg:  Human Rights Law and Practice.[13]

[23]      Even without the benefit of the Scottish Law Commission Reports, the 2006 and 2011 Acts simply acknowledge the breadth of the adoption legislation and its effect by choosing not to interfere with it.  It might have interfered with it expressly, so as to give the sixth and seventh pursuers (Samuel C and Maria C) a title to sue but it did not do so.  The notion that the Human Rights Act 1998 must somehow be in play is unsound whether one examines article 8 and/or 14 by reference to proportionality or discrimination, or by reference to whether the Scottish legislation in question is devoid of any reasonable foundation.  Neither aspect was developed in argument beyond the discussion in the Scottish Law Commission Reports.  Accepting Mr Pilkington's submissions would not involve reading down.  Rather, it would involve amending and going against the grain of the legislation.

Result

[24]      The action insofar as relating to the sixth defender (Samuel C) and the seventh defender (qua guardian for Marie C) is dismissed.  The action at the instance of the seventh defender (Michael C) has already been abandoned or dismissed.  All questions of expenses are meantime reserved.