Biological siblings of adopted person fail in damages claim for ‘wrongful death’

A judge in the Court of Session ruled that the biological members of the family of a person who has been adopted have “no title to sue” following the wrongful death of that person.

Judge Gordon Reid QC heard that the deceased, John Foreman, was adopted into the Foreman family in 1987, when he was seven years old.

He was a lance corporal in the armed forces who was said to have exhibited suicidal tendencies and died in 2012 through breach of duty owed by the Ministry of Defence.

An action of damages for inter alia loss of society and guidance was raised by his widow Amanda Foreman under section 4(3) of the Damages (Scotland) Act 2011, following his death.

His adoptive parents also sued, but the question arose as to whether his half-brother Samuel Culp and half-sister Marie Culp, who had the same father, Michael Culp, as the deceased but were born long after the adoption, had title to sue - a question which required consideration of the effect of adoption law on section 4(3)(b) and section 14(1)(c) of the 2011 Act, 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.

Counsel for the pursuers argued that the siblings qualified as members of the deceased’s immediate family within the meaning of section 14 of the 2011 Act, which did not distinguish between biological and non-biological siblings.

While section 39 of the Adoption (Scotland) Act 1978 extinguished the claims of biological parents, it did not affect biological siblings.

It was argued that 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.

It was also submitted that the right to respect for family life in terms of article 8European Convention on Human Rights (ECHR) was “in play”.

To deny the half-siblings title to sue for the death of their half-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, it was claimed.

However, the judge observed that under section 39 of the Adoption Act, a child made the subject of an adoption order was to be treated in law as if he had been born as a child of the adopting married couple, and as if he were not the child of a person other than the parties to the marriage.

“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,” he added.

The judge also said that 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, 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.

It 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, but expressly declined to recommend that the biological family members of a deceased, who was an adopted child, should become entitled to sue.

The 2011 Act reflected that recommendation, which did not change the pre-existing law on this point.

In a written opinion, Judge Gordon Reid QC said: ” 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.”