Richard Jones and Emma Colebatch, instructed by Freemans Solicitors, acted for the respondent child in H (Step-Parent Adoption: Human Rights), Re [2023] EWHC 3186. The case concerned an application for adoption by a stepparent. Whilst ordinarily such an application could be made straightforwardly under section 51(2) Adoption and Children Act 2002, in this instance the case was complicated by the fact that the application post-dated the death of the child’s mother, to whom his stepfather had been married. Consequently, the application did not meet the ordinary interpretation of the requirements set out by section 51(2). 

Whilst the stepfather would have been able to apply for an adoption order in respect of H under section 51(1), such an order would extinguish H’s legal relationship with his mother and his wider maternal family. This would have been an unnecessary and disproportionate interference in H’s Article 8 rights.. Consequently, the family were left in a predicament whereby there appeared to be no easy or desirable way to formalise their relationship and thereby protect their private and family life, which in itself gave rise to Article 8 rights. 

To overcome this issue, the court was invited by all parties to “read down” the provision of section 51(2), as permitted by section 3 Human Rights Act 1998, treating section 51(2) as applying not only to individuals who are currently the legal partner of the parent, but also to those who had been the partner of the parent at the time of the parent’s death. 

The court was persuaded to adopt this approach and to exercise the jurisdiction of section 3 of the 1998 Act, recognising the importance of preserving the child’s wider family relationships, whilst promoting and providing legal security to his relationship with his stepfather.