Flexible emotional concepts or fixed entities – interpreting the Children and Adoption Act 2002: Re YP


Mary Welstead, CAP scholarship holder Harvard Law School; To visit Professor of Family Law University from Buckingham

In 1961, Elvis Presley sang:

‘Home is where the heart is

And my heart is everywhere you are

Wherever you are is home

I don’t need a mansion on a hill.

In Re-YP, Madam Justice Arbuthnot could well have quoted the above words before coming to the conclusion that the word home was a flexible and emotional concept rather than a fixed physical entity. According to the judge, a person can be said to have a domicile with those with whom he has an ongoing family relationship even if they do not share the same physical space. The judge also interpreted the phrase living together in an enduring relationship liberally, adding her contribution to the progressive judicial rewrite of the Adoption and Children Act 2002. Constructing the legislation purposively, the judge ensured that the legislation complied with the ECHR 1950, as required by the Human Rights Act 1998, and granted an adoption order for an 18-year-old boy who moved between Switzerland and England.

The judge acknowledged that family life today takes many different forms and that we live in a world where it is not uncommon for partners and children to have long-distance relationships. Technology has enabled family relationships to succeed even if participants live apart and in different countries from each other.

The full article will be published in the August issue of Family law.

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