Foreign non-recognition is a welfare factor, not a bar: Inner House clarifies UNCRC Article 21 and adopts Re N in Scottish adoption law

Introduction

This commentary examines the Scottish Court of Session, Inner House decision in AD v (Authority to adopt the child EO) [2025] CSIH 25, delivered by Lord Malcolm (with Lord Doherty and Lady Wise concurring). The case concerns the adoption of a nine-year-old boy, EO, born in Italy to Nigerian parents, who came to Scotland as an infant and has spent nearly all of his life in state care. After a fully contested proof, the Outer House granted an adoption order in favour of a “foster to adopt” carer resident in England, a Nigerian/French national who shares EO’s ethnicity and Christian faith. EO’s mother appealed.

The appeal raised two clusters of issues. First, the familiar domestic adoption tests: whether parental consent could be dispensed with under section 31(3)-(4) of the Adoption and Children (Scotland) Act 2007, and whether, applying sections 14 and 28(2), adoption was necessary and proportionate—sometimes captured by the shorthand “nothing else will do.” Second, a significant international dimension: the implications of EO’s Italian nationality and the risk that a Scottish single-person adoption might not be recognised in Italy (the “limping” adoption problem); whether the decision complied with Article 8 ECHR and Articles 7–9 and 21(b) UNCRC; and whether English alternatives (e.g. special guardianship) should have been preferred.

The Inner House dismissed the appeal, upholding the adoption order (with a minor technical correction). Crucially, the court articulated two propositions of general importance in Scottish adoption law:

Foreign non-recognition of a Scottish adoption order is not a jurisdictional bar or precondition to granting the order. It is a factor in the welfare evaluation, not a veto—expressly aligning Scots law with the approach in In re N (UK Supreme Court).
Where a child is habitually resident in the UK and was not brought for the purpose of adoption, the adoption is not an “intercountry adoption” within the meaning of UNCRC Article 21(b); that provision does not impose an absolute requirement to prove that the child cannot be cared for in the “country of origin.”

Summary of the Judgment

The Inner House affirmed the Outer House’s findings that EO’s parents were, and were likely to remain, unable to discharge parental responsibilities and exercise parental rights satisfactorily (Children (Scotland) Act 1995, ss 1–2; 2007 Act, s 31(4)). That conclusion was unchallenged on appeal. The core appeal arguments targeted the international and proportionality analysis.

The court rejected the mother’s contention that the adoption was an “intercountry adoption” engaging an absolute UNCRC Article 21(b) precondition or that the order was disproportionate under Article 8 ECHR. The court held:

UNCRC Article 21(b) does not impose an absolute rule of priority for care in the “country of origin,” and in any event EO’s adoption is not an “intercountry” adoption: by the time adoption was contemplated, EO had long been habitually resident in the UK and was not moved for the purpose of adoption.
Following In re N, the likely position of foreign law (including possible non-recognition) is a factor in the welfare assessment, not a threshold bar to making an order. The court expressly adopted this approach for Scotland.
Recent Italian Constitutional Court Judgment No 33 (2025) undermines the assertion that single-person adoptions are contrary to Italian public policy. While recognition proceedings in Italy may be contested and uncertain, a categorical “public policy” bar (“silver bullet”) no longer holds.
Lesser alternatives (e.g., English special guardianship) were not required or preferable. The plan was for a Scottish adoption; the English route would likely prolong litigation and maintain destabilising parental PRRs, contrary to EO’s best interests.

The court emphasised delay as harmful (North Lanarkshire Council v KR) and confirmed that once the statutory tests are met, the decision to grant adoption is not an exercise of unfettered discretion; the court must act in accordance with the child’s welfare as paramount (Osborne v Matthan (No 2)).

The reclaiming motion was refused, subject only to correcting a minor technical reference to the 2009 Regulations in the interlocutor.

Analysis

Precedents Cited and Their Influence

Fife Council v M [2015] CSIH 74; 2016 SC 169: The Inner House reaffirmed that the court must evaluate all realistic options, including making no order, with welfare as the paramount consideration and with a structured, “global and holistic” analysis. The Outer House judge did so; the Inner House found no deficiency.
North Lanarkshire Council v KR [2018] CSIH 59; 2020 SCLR 1: Emphasised the harm caused by delay—“decisions resulting in further protracted procedure seldom promote the welfare of the child.” This underpinned the court’s preference for adoption over further litigation or pursuit of English law alternatives.
S v L [2012] UKSC 30; 2013 SC (UKSC) 20: Adoption is a profound interference with family life but can be necessary and proportionate where justified by the child’s welfare. The Inner House applied this proportionality lens alongside ECHR jurisprudence, including Strand Lobben v Norway.
In re B‑S (Children) [2013] EWCA Civ 1146; [2014] 1 WLR 563: The appellant invoked the requirement for a comprehensive “balance sheet” assessment of options. The Inner House held that the Outer House judge met the standard: he identified options, weighed pros and cons, and explained why only adoption would meet EO’s lifelong welfare needs.
In re N (Children) [2015] EWCA Civ 1112; [2016] UKSC 15; 2017 AC 167: Pivotal. Sir James Munby’s Court of Appeal guidance, endorsed by the UK Supreme Court, recognises that while foreign law consequences and recognition issues matter, they do not condition the domestic court’s jurisdiction or power to make an adoption order. Foreign non-recognition is a relevant welfare factor, not a threshold bar. The Inner House “took the opportunity” to adopt this approach for Scotland—an important harmonisation of Scottish law with the England and Wales position.
In re Z [2016] EWHC 2963 (Fam); [2017] 4 WLR 20 and Z v S [2024] EWHC 2837 (Fam); [2025] 2 WLR 357: These cases helped delineate what counts as “intercountry adoption.” Where a child is habitually resident in the UK and not brought here for adoption, the adoption is domestic, not intercountry. The Inner House adopted this analysis in construing UNCRC Article 21(b).
Strand Lobben v Norway (2020) 70 EHRR 14: Supports a careful proportionality analysis under Article 8 ECHR. The Inner House was satisfied the Outer House’s reasoning met Convention standards—adoption was justified and necessary in EO’s best interests.
Osborne v Matthan (No 2) 1998 SC 682: Clarifies that adoption decisions are not a matter of broad judicial “discretion”; once statutory conditions are met and welfare dictates adoption, the court should grant the order. The Inner House relied on this to counter submissions suggesting a policy-based refusal because of foreign non-recognition risks.
Paquette v Galipeau [1981] 1 SCR 29 (Canada): Cited for the contrary proposition that recognition in the domicile of origin is a prerequisite. The Inner House rejected that view as incompatible with In re N and the Scottish statutory scheme.
LO v McGinley [2022] CSIH 50; 2023 SC 39: Provided background on this family’s child protection history and the sheriff’s findings of serious abuse of EO’s older siblings, which informed the welfare risk assessment.

Legal Reasoning

1) Dispensing with parental consent (2007 Act, s 31(3)-(4))

The Outer House found, and the Inner House noted was unchallenged, that EO’s parents were unable, and likely to continue to be unable, to discharge parental responsibilities and exercise parental rights satisfactorily. The court relied on established grounds of referral proving serious abuse of the older siblings; parental neglect of a third child (12 teeth removed); chronic failure to engage with assessments; poor and then absent contact; and an extensive litigation strategy focused on jurisdictional objections rather than the children’s welfare. These facts, coupled with the principle that future harm can be inferred from proven past conduct, comfortably satisfied section 31(4).

2) Welfare paramountcy and necessity (“nothing else will do”)

Having dispensed with consent, the court turned to sections 14 and 28(2) of the 2007 Act. The Outer House evaluated the realistic options—including no order and lesser orders (residence/PRRs in Scotland; English special guardianship)—against the comprehensive evidence of EO’s strong attachment to the petitioner, his settled and thriving placement, and the petitioner’s capacity to maintain his brother relationships and cultural identity.

The Inner House endorsed the judge’s core conclusion: adoption uniquely offers EO lifelong legal and emotional security with a committed parent, while alternative routes would perpetuate parental PRRs, invite further destabilising litigation, and deny EO the permanence he seeks and needs. The court accepted that, although the judge floated a Scottish residence order notwithstanding potential cross-border competency issues, any such error was immaterial: lesser English orders would share the same structural disadvantages for EO’s stability and permanence.

3) The international dimension: UNCRC, ECHR and “limping” adoptions

The mother’s argument hinged on two propositions: first, that UNCRC Article 21(b) imposed an absolute precondition that intercountry adoption may only occur if the child cannot be cared for in the country of origin; and second, that a Scottish adoption would be a “limping” order because Italian law would not recognise a single-person full adoption, making the order disproportionate and impractical.

The court rejected both. On UNCRC:

Article 21 opens by reaffirming child welfare as paramount; sub-paragraph (b) does not displace this with an absolute precondition.
EO’s adoption is not “intercountry” in the sense contemplated by UNCRC or the 1993 Hague Convention regime. By the time adoption was contemplated he had for years been habitually resident in the UK and was not brought here to be adopted. As such, Article 21(b) did not require proof that Italy could not provide care.

On “limping” adoptions and foreign recognition:

The Inner House explicitly adopted the In re N approach for Scotland: foreign recognition is not a prerequisite to making a domestic adoption order. The court’s powers and duties derive from Scottish legislation and are not curtailed by foreign nationality, domicile, or non-recognition abroad. Foreign law implications are “an important factor” in the welfare analysis—no more, no less.
Practical complications of non-recognition (e.g. travel on an Italian passport; administrative or banking issues; consular responsibility; inheritance/tax; military service) were acknowledged as relevant factors. However, weighed against EO’s pressing need for permanence and freedom from destabilising litigation, they did not warrant refusal of adoption.
Significantly, the Italian Constitutional Court’s Judgment No 33 (2025) removes the force of the previously asserted categorical public policy ban on single-person intercountry adoption. While recognition proceedings in Italy could still be contested, the argument that non-recognition is certain no longer holds.

On proportionality under Article 8 ECHR, the Inner House was satisfied the Outer House carried out a sufficiently reasoned balancing exercise and that adoption was necessary and proportionate in EO’s best interests—aligning with S v L and Strand Lobben.

4) English alternatives and case management

The court accepted the logic of not diverting to English proceedings for special guardianship. The placement in England was part of a Scottish permanence plan aiming at adoption, authorised under Scottish regulations; the child remained under Scottish compulsory supervision. Pursuing an English lesser order would likely have triggered contested proceedings and delay, with residual PRRs left to the parents and ongoing instability—the very harms the Outer House sought to avoid. The Inner House regarded the judge’s approach as consistent with section 14 and North Lanarkshire Council v KR.

Impact and Significance

Doctrinal alignment with In re N (UKSC): This is the first clear Inner House statement that, in Scotland, potential foreign non-recognition of a domestic adoption order is a welfare consideration, not a jurisdictional or legal bar to making the order. That harmonises Scottish adoption law with the leading English authorities and provides much-needed clarity for cross-border cases.
Clarification of “intercountry adoption” under UNCRC: Children who are habitually resident in the UK and were not brought here for adoption are within a domestic adoption paradigm, even if they hold foreign nationality. Practitioners need not treat every case involving a foreign passport as an “intercountry adoption” under Article 21(b).
Reduced force of the “limping adoption” objection: While practical consequences abroad must be weighed, they will rarely trump a well-evidenced conclusion that adoption is necessary for lifelong welfare. The Italian Constitutional Court’s 2025 ruling materially weakens assertions that single-person adoption necessarily contravenes Italian public policy, lowering the risk of categorical non-recognition arguments derailing Scottish decisions.
Emphasis on permanence and avoiding delay: Echoing North Lanarkshire Council v KR, the court prioritised timely permanence over speculative or contested alternative routes (e.g., English special guardianship) that perpetuate litigation and residual PRRs, reinforcing practice aimed at minimising drift for children long in care.
Practical guidance for local authorities and courts: Authorities should:
- Document foreign law and recognition risks sufficiently to inform the welfare balance but recognise that proof of foreign recognition is not a precondition.
- Identify concrete practical implications (travel, documentation, consular issues) but place them in the balance against the child’s need for permanence.
- Avoid unnecessary recourse to alternative jurisdictions where the permanence plan is coherent, evidence-based, and deliverable domestically.

Complex Concepts Simplified

Parental rights and responsibilities (PRRs): Under Scots law, parents have duties (e.g., to safeguard and promote a child’s health, development and welfare) and corresponding rights (e.g., to have the child live with or have contact). Adoption extinguishes birth parents’ PRRs and transfers them to adopters.
Dispensing with consent (2007 Act, s 31(3)-(4)): The court may dispense with parental consent if satisfied that the parent is, and is likely to remain, unable to discharge PRRs satisfactorily. That conclusion rests on evidence of past harm and likely future risk.
“Nothing else will do” / global and holistic evaluation: A shorthand for the strict necessity and proportionality analysis in adoption. Courts must evaluate all realistic options, weigh pros and cons, and choose the path that best secures the child’s welfare throughout life.
“Limping adoption order”: An adoption valid in the making state but unrecognised in another state relevant to the child (e.g., by nationality). It can cause practical complications abroad. Under this judgment, such risks are weighed in welfare terms; they do not bar a domestic order.
Habitual residence vs domicile vs nationality: Habitual residence reflects where a child actually lives and is integrated; domicile concerns legal “home” for choice-of-law purposes; nationality is citizenship. Intercountry adoption safeguards generally track habitual residence, not domicile or nationality.
Intercountry adoption (UNCRC Art 21; Hague 1993): A process where a child habitually resident in State A is placed for adoption in State B. It engages specific safeguards and cooperation duties. If a child is habitually resident in the UK and was not brought for adoption, the adoption is domestic, not intercountry.
Curator ad litem and reporting officer: A court-appointed lawyer who investigates and represents the child’s interests, providing an independent report to inform the court’s welfare decision.
Compulsory supervision order (Children’s Hearings System): A Scottish order placing a child under statutory supervision, often with conditions about residence or contact. It keeps the case within the Scottish child protection framework even if the child lives in another part of the UK.

Conclusion

AD v (Authority to adopt the child EO) is a significant Inner House authority that modernises and clarifies Scottish adoption law at the interface with international considerations. Two central holdings stand out. First, the court expressly adopts the In re N principle for Scotland: foreign recognition concerns are an important factor in the welfare analysis but are not a jurisdictional or legal obstacle to granting a domestic adoption order. Second, the court clarifies that where a child is habitually resident in the UK and was not brought for adoption, the case is not an “intercountry adoption” under UNCRC Article 21(b), and that provision does not impose an absolute gateway requirement to prove the impossibility of care in the nominal “country of origin.”

Within that legal framework, the court upheld the Outer House’s careful welfare assessment: EO’s profound and immediate need for permanence, stability, and freedom from destabilising litigation made adoption by the petitioner necessary and proportionate. The court gave measured weight to potential international complications—including the prospect of non-recognition in Italy—while noting that the Italian Constitutional Court’s 2025 decision substantially reduces claims of categorical public policy barriers to single-person adoption. The court also confirmed that detours through English alternatives would likely prolong uncertainty and undermine the permanence sought, contrary to EO’s best interests.

The judgment’s practical message is clear: Scottish courts must continue to put the child’s lifelong welfare at the centre of the analysis, taking into account cross-border realities without allowing them to paralyse the domestic decision. When the statutory criteria are met and the welfare balance demands adoption, “nothing else will do”—and foreign non-recognition cannot be allowed to obscure that imperative.