In the Matter of X and Y
...if you ever doubted or wondered about the status of adopted people in society...
Two young adult women, their mother and their adopter tried to end an adoption order.
In the matter of X and Y1, concerned two young women who had returned to live with their mother. Their adopter, supportive of their choice, submitted an application to revoke the adoption orders on their behalf. Their mother supported it. The young women themselves supported it.
It went all the way to the Court of Appeal. What they were asking for was not radical. They were asking, as adults, to have their legal status reflect the actual truth of their lives.
When a child is adopted, the law erases their biological identity and replaces it with a legal one, presented as a win/win, a gift even - for the adopted person and their adopters.
As the Court of Appeal framed it, adoption orders are:
"…transformative, have a peculiar finality and are intended to be irreversible, lasting throughout life, as if the child had been born to the adopter."2
In other words, an adopted person is treated no differently in law from a person born to their parents . Just as parenthood cannot be undone, the argument goes, adoption cannot simply be reversed. It is this constant reaching for equivalence that defines human adoption.
But this is a legal sleight of hand. A person born to parents did not have their original identity legally erased. They were not separated from their family, culture, heritage, and name by state intervention.
"The unique attribute of an adoption order, in contrast to any other order that may be made for the welfare of a child, is that it is 'for life' and, in common with the legal relationship established at birth, can only be extinguished by the making of a subsequent adoption order."3
If you are a regular reader of this newsletter, you will know that adoption is not welfare. It is, as the Law Commission in New Zealand stated, closer to property legislation. When a child has welfare needs there are other forms of care available, such as varying levels of guardianship. And the needs of a child are not the needs of an adult. It is as if they saying an adopted person is a child for life.
But at the centre of both the Court of Appeal and Supreme Court judgments in Re X and Y lies a single legal proposition, stated with remarkable plainness: parenthood cannot be undone. The equivalence” argument taken to the extreme.
So: two adult women, unanimous biological and adoptological family support. And the esteemed judges said NO.
Why and how they came to this conclusion is at the heart of adoption practice.
