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Failure of Damages Claim by Biological Siblings of Adopted Person

1st September 2016

The Court of Session in the case of Foreman and Others v Advocate General for Scotland (5th July 2016) considered a claim under Section 4 (3) of Damages (Scotland) Act 2001 which arose out of the death of John Foreman.

Mr Foreman had been adopted in 1987. The court had the decision whether Mr Foreman’s biological siblings had legal entitlement to make a claim for damages for their “loss of society” as a result of his death. The Judge noted that a child be subject to an adoption order was treated in law as if he had been born as a child of the adopting couple. The Judge said “in my opinion, it is not absurd or unjust that the (law) does not leave any entitlement to sue to biological members of the family of the deceased who has been adopted. All this is entirely consistent with the underlying policy of the adoption legislation”. Accordingly the claim by these biological siblings was dismissed by the court.

In essence the decision flowed from the fact the adoption legislation, as noted by the Judge, creates a new relationship of parent and child which, for practically all legal purposes, replaces the previous relationship. The adoption order breaks the legal relationship between a child and his or her family of birth.

If you wish to know more, please contact David Forrester.

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