Human Rights Win for Adopted Children

Parliament alone can enact statutes – but judges have the power to interpret them in a manner that achieves conformity with the UK’s human rights obligations. Exactly that happened in one ground-breaking probate case, in which the High Court swept away one of the last vestiges of historic prejudice against adopted children.

By his will, a man who died in 1947 left the residue of his estate to his two sons and daughter in equal shares for life. What remained of the estate on their deaths was to pass in turn, again in equal shares, to any of their children who attained the age of 21. One of the sons did not have natural children but had adopted two before his death in 2008. An issue thus arose as to whether the adopted children counted as ‘children’ for the purposes of the will.

It was agreed that, if the case were to be decided purely on the basis of domestic law, the adopted children’s claim would inevitably fail. Although the Adoption Act 1976 (the Act) provided that an adopted child should be treated in law as the child of the adopter, it did not have retrospective effect and did not apply to the will.

In coming to the adopted children’s aid, however, the Court found that the existing legislation had a discriminatory effect on the adopted children and infringed their right to respect for their family lives. Their father had died after the Human Rights Act 1998 came into force and the European Court of Human Rights had consistently ruled against laws that confer more limited inheritance rights on adopted, rather than natural, children.

The Court found that it was possible to read down the relevant parts of the Act so that they conformed with the adopted children’s human rights and enabled them to inherit under the will. Such a reading did not go against the grain of the Act and would not have practical repercussions with which judges would be unable to deal in the future.