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X v Y and Dispensing with Parental Consent to Adoption

Chloe Shields explores the longstanding controversy surrounding the issue of dispensing with parental consent to adoption, and also provides an analysis into the recent case of X v Y. 

The issue of dispensing with parental consent to adoption has long been controversial and is as such a very difficult issue for a court to decide. The court must weigh up the interests of the parties as well as what is in the best interests for the child’s future. State intervention into family life will always be provocative and it is important that any such intervention be in line with the European Convention of Human Rights Article 8 right to private and family life.

This case involved a couple, now divorced, and the care of their son. The petitioner in the case is the father’s wife who wished to adopt the child but the respondent, the child’s birth mother, did not consent to this. In order for the court to decide for the petitioner, there were two main conditions to be fulfilled. The first was the consent of both parents or, failing that, a court order to dispense with one or both of their consent if the parent was unable to exercise their parental rights and responsibilities[1] or was deemed to be necessary for the child’s welfare[2]. The court had to be satisfied that the parents understand what they are doing in consenting to adoption[3]. The second condition was that the adoption order be for a child under twelve or an older child who consents to the adoption order, in this case the latter[4].

The Facts

When considering the parental involvement in the child’s life, it was seen that when the defender and the child’s father separated, a residence order was granted to the child’s father with extensive contact for the respondent. This initially went smoothly but a difference of parenting styles led to tension between the child’s father and mother as the father felt she was undermining his discipline in a matter concerning an incident at school.

To begin with the child wanted to have a relationship with his mother but gradually this became less important to him. Following difficulties in the contact a year later, the visits were at first supervised and then the contact order was revoked all together after the child was initially indifferent towards contact and eventually no longer wished a relationship with the respondent. After direct contact was stopped in 2011, the only form of indirect contact made was one letter sent to the child. There was no suggestion of there being any adverse treatment of the child to prompt this response

The court took the child’s views on the possibility of adoption into account as he was of sufficient age[5], as he was now 14, and all the reports stated he was intelligent and articulate in his views. He had been asking for adoption for some time as he wanted the security of knowing he could stay with the petitioner, should something happen to his father. He also did not want contact with his mother as he said she made him feel bad about himself.

The reports by the social worker and curator both recommended that the court allow the adoption order to go ahead. The curator said that it was better that it go ahead than not. However, the court felt they had to give these reports less weight in their consideration as both failed to provide or discuss alternative options to adoption. The curator went so far as to ignore the respondent’s position, something that the court cannot do.

Inability Test

In seeking an adoption order[6], the petitioner argued on two separate grounds that the court should dispense with the respondent’s consent[7]. The first test was whether the respondent was able to satisfactorily discharge her parental rights and responsibilities and whether any inability to do so was likely to continue[8], given the situation at the time. The respondent was seen to be exercising her responsibilities to safeguard and promote the health, development and welfare of her child[9], to provide direction and guidance[10] and to act as the child’s legal representative[11]. The respondent was not exercising her right to contact with the child[12]but was still seen to be able to satisfactorily carry out her other responsibilities. The petitioner argued that it was impossible for the respondent to carry out these duties as she had had no contact with the child so could not provide evidence of her providing him with any kind of guidance since the termination of contact. It was also argued, bearing in mind the nature of the relationship between the child and his mother, that he would be unlikely to trust his mother with his legal affairs.

The respondent argued that it was not inability on her part to carry out her responsibilities but that she was not allowed to exercise her rights. No material was presented to support that the respondent was unable to exercise her rights and it was seen that it was due to the child’s preference and the lack of ordered contact. The petitioner later conceded that the respondent could still carry out her duties in future. Therefore, since the respondent could carry out her responsibilities and exercise her rights, her consent could not be dispensed with on this ground.

Welfare Test

The second test was that the welfare of the child required[13] that the respondent’s consent be dispensed with. This ground is only relevant if it has been seen by the court that first ground discussed in this case does not apply[14]. This raised the test set out in S v L[15] where it was seen that consent of a parent to adoption can only be dispensed with if the child’s welfare requires it. It was said that it must be more than desirable or reasonable[16]. This is because dispensing with a parent’s consent is a significant intervention in the family relationship, therefore interfering with Article 8 of the European Convention of Human Rights. This means that it must be seen to be necessary to breach this right. It must be a proportionate action, where nothing less than adoption would suffice for the child’s welfare[17]. If this purpose could be served just as well by some other method then consent cannot be dispensed with.

Welfare is considered in the terms of section 14 of the 2007 Act[18] which places it as the “paramount consideration” in the process of adoption. The court must consider the value of a stable family unit in the child’s development[19], the child’s views[20], the child’s religion, race and cultural background[21]and the likely effect on the child’s life of making the adoption order[22].

When considering the first criterion, it was seen that the child was in a loving and stable family unit with the petitioner and the child’s father. While the child was happy and developing well, he felt something was missing and because of this wanted to be adopted. In many cases, adoption paves the way for a stable family unit but in this case the child already had that. The petitioner argued that it was necessary to secure this situation for the child in case something should happen to his father. This was something that both the petitioner and the child were very concerned about. An adoption order would not only affect the child’s relationship with his father and the petitioner but also his sibling as they would officially be half-siblings. The petitioner saw a residence order as insufficient for this purpose. It was also submitted that few courts would allow parental rights and responsibilities or a residence order if this was only to last for 18 months until the child was 16.

When considering the child’s views, they were given considerable weight because he was 14 and able to express himself clearly. The child preferred one regime to another but this was not seen to be a reason enough to sever the child’s relationship with his mother, even though it supported adoption. So while the child’s views were highly persuasive, his fears could be addressed with less final measures. There were not seen to be relevant religious or cultural issues in this case.

When the court considered the effect an adoption order would have on the child’s life, it heard from the respondent that there were no problems with the child’s welfare and that adoption would change nothing for the child. It would also constitute an unwarranted interference to the respondent’s right to privacy and family life[23] as these measures were not shown to be necessary. There was nothing to prevent the petitioner from applying for parental rights and responsibilities which could resolve the issue of security for both the petitioner and the child.


The court found that the respondent was able to satisfactorily discharge her parental rights and responsibilities and that the welfare of the child did not require for consent to adoption to be dispensed with. Therefore, the court refused to grant an adoption order but the court conferred orders for parental rights and responsibilities and residence on the petitioner instead as this was considered the more appropriate course for the court to take[24]. These orders were to run alongside the father’s residence order.


Step-parent adoption is relatively common and this case reinforces that in a situation where the petitioner already enjoys much of the role of a parent, there still has to be a clear advantage to formalising this through an adoption order. The requirement that it be better for the child that an order be made than not[25] is still in place and this requires it to make a significant difference to the child. In this case, no such advantage was identified and the alternatives to adoption were considered more appropriate for this particular situation. The case supports the rights of non-resident parents, even in a situation such as the present one where the parent has little to no contact with the child, protecting the possibility of a different relationship in future. It also emphasises the serious nature of permanently severing the parent-child relationship as there must be a significant reason to do so.

Another of the issues raised in this case was that the reports did not consider the alternatives to adoption. This emphasises the importance, for professionals providing such reports, of considering all of the options for a family considering adoption. This will help to avoid leaping to the conclusion of adoption and leaving it as a last resort for the courts.

There is a lot of controversy over the provisions in the 2007 Act relating to dispensing with parental consent to adoption as they can be seen to constitute a breach of the Article 8 right to private and family life. However, this depends on how they are interpreted. The word “requires” in section 31(3)(d) was seen by the Supreme Court to import the necessity test and that the discretion this allows for Sheriffs is required to the reflect the nature of the subject matter[26]. S v L saw the word “requires”[27] to mean that it was necessary for the child’s welfare and more than just desirable or reasonable to dispense with parental consent. This stricter test allows for the Act to be used by the courts without it being a violation of Article 8 rights. X v Y followed the precedent laid out in S v L, thereby establishing it as authoritative in this area.

Kenneth Norrie is particularly concerned about these provisions and their being interpreted in line with the European Convention of Human Rights[28]. While he was more content with the stricter interpretation by Lord Reed in S v L, than with the provisions alone, he was not entirely satisfied as he feels it leaves room for doubt. Norrie sees the welfare test as being dangerous even if it is applied as it was in S v L and, as a result, in this case too. He thinks that it could result in dispensing of the consent of a capable and reasonable parent who could have prevented adoption before this legislation was enacted. He argues that if a parent cannot be shown to be incapable of exercising their rights and responsibilities then there must be a strong justification to dispense with consent if this is to be in line with Article 8.

However, the strict test applied in X and Y protected the non-resident parent, despite having very little relationship with the child in question. The first test the court applied in X v Y, to see whether the parent was able to discharge their parental responsibilities and exercise their parental rights, seems adequate to assuage Norrie’s concerns as a capable and reasonable parent would pass this test. The pairing of these two tests together, as the court did in this case, is the key to applying these provisions without jeopardising the rights of parents unduly.

Norrie was also concerned with Lord Reed’s interpretation that adoption should only be granted when nothing less than adoption will suffice[29]. Norrie was concerned that this could result in a second best situation for a child. While this is an understandable concern, it seems necessary to interpret the statute in this way if there is to be a balance of the child’s and the parents’ rights. While the child’s welfare is the paramount consideration, adoption must be seen to be strictly necessary or it will constitute a breach of Article 8. The court must consider each case on its individual facts and if alternatives are considered to be the most appropriate course of action then they should also be the best situation for the child.

Norrie suggests an amendment to the 2007 Act to include conditions for the court to check are fulfilled before allowing an adoption order, similar to those contained within the Act for permanence orders. Michelle Donnelly agreed with this suggestion in her article. She felt these provisions require further clarification through threshold conditions which would emphasise that “the justification for intervention is derived from risk to the child’s welfare, rather than the idea that the child would be “better off” being adopted”[30]. The tests applied in X v Y should be enough to address these issues and can be used alongside the provisions to prevent unnecessary adoptions in similar situations. 

While this area is understandably controversial because it can involve a significant intervention into private and family life, X v Y shows that the tests it follows are a high bar to satisfy. This is appropriate for the subject matter but also allows the courts discretion, necessary in family law as every situation is different and this requires sensitive treatment. Therefore, they are sufficient to protect both children and their parent’s rights as well as allowing for intervention when it is strictly necessary.




[1] Adoption and Children (Scotland) Act 2007, s31(4)

[2] Adoption and Children (Scotland) Act 2007, s31(3)(d)

[3] Adoption and Children (Scotland) Act 2007, s31(2)(a)

[4] Adoption and Children (Scotland) Act 2007, s32(1)

[5] Once a child is over the age of 12 they must consent to adoption for the court to grant an adoption order under the Adoption and Children (Scotland) Act 2007, s32

[6] Adoption and Children (Scotland) Act 2007, s28

[7] This is consistent with Lord Glennie’s sequential test of the inability test then the welfare test in M v R 2012 CSOH 186, para 62

[8] Adoption and Children (Scotland) 2007, s31(4)

[9] Children (Scotland) Act 1995, s1(1)(a) and s2(b)

[10] Children (Scotland) Act 1995, s1(1)(b)

[11] Children (Scotland) Act 1995, s1(1)(d) and s2(d)

[12] Children (Scotland) Act 1995, s1(1)(c)

[13] Adoption and Children (Scotland) Act 2007, s31(3)(d)

[14] M v R 2012 CSOH 186, para 62

[15] S v L 2012 SLT 961

[16] S v L 2012 SLT 961, para 32

[17] S v L 2012 SLT 961, para 34

[18] Adoption and Children (Scotland) 2007 Act, s14(3)

[19] Adoption and Children (Scotland) 2007 Act, s14(4)(a)

[20] Adoption and Children (Scotland) 2007 Act, s14(4)(b)

[21] Adoption and Children (Scotland) 2007 Act, s14(4)(c)

[22] Adoption and Children (Scotland) 2007 Act, s14(4)(d)

[23] European Convention of Human Rights, Article 8

[24] The court can grant such orders without application according to Children (Scotland) Act 1995, s11(3)(b)

[25] Adoption and Children (Scotland) Act 2007, s28(2)

[26] ANS & DCS v ML 2012 UKSC 30

[27] Adoption and Children (Scotland) Act 2007, s31(3)(d)

[28] K Norrie, “The welfare ground for dispensing with consent to adoption: the Supreme Court decides” 2013 SLT 117

[29] S v L, para 34

[30] M Donnelly, Adopting the children of irreproachable parents? The Convention compatibility of the welfare ground for dispensing with parental consent to adoption, Section 7- The use of precedent and crossing the threshold

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