Words and the Meaning of Words
by Kenneth Norrie - Posted on 2 June 2021
In this post, Professor Kenneth McK. Norrie reflects on the recent Legal History Conference at (virtual) RGU.
We lawyers are entirely comfortable with words meaning what the law tells us they mean (as opposed to what they mean). However, we run the risk of narrowing our understanding and ignoring wider meanings when we believe that legal meanings of words reflect a more accurate reality than any social usage. Many gay and lesbian couples, for example, said to their friends after the Civil Partnership Act 2004 (but before the Marriage and Civil Partnership (Scotland) Act 2014): “We are getting married”. But black letter lawyers (or was it just me?) looked on them pityingly for their misunderstanding. The legal reality was that they were registering their civil partnership which to us lawyers is a more real reality than the social truth that the couple were marrying in the more general sense of joining themselves together into a single unit – just as two strands of rope are married into one length.
And of course words change their meanings as time goes by, both socially and legally. It takes a legal historian to ensure that our modern understandings, preconceptions and prejudices are not unduly transported back in time, for that leads to a misapprehension of the content of words as they were used in an earlier age.
Three colleagues from Strathclyde Law School, together with two previous colleagues, joined together on Zoom for a marriage of ideas at RGU’s conference “Legal History in Modern Practice” over the weekend of 22nd-23rd May 2021. My contribution looked at the evolving understanding of the word “adoption”.
For a family lawyer, of course, adoption is a perfectly familiar legal concept whereby a child has ties with one family severed and is transplanted, for virtually all legal purposes, into another family. Yet the concept has not always carried that meaning, and indeed the word was in common usage (to describe a social situation) long before the legal institution of adoption came into Scots law with the Adoption of Children (Scotland) Act 1930.
This was reinforced for me in 2017 when the producer of the BBC television programme “Who Do You Think You Are?” asked if I would be willing to appear on that programme to explain the adoption papers of the mother of the famous singer, Lulu. The following dialogue ensued:
“Lulu’s mother was adopted as a baby in 1928” the producer said.
“No she wasn’t”, I replied.
“Em, yes she was”.
“No she wasn’t”.
“I have the papers in front of me”.
“I don’t care”, I said, “adoption only came into Scotland in 1930, so whatever happened in 1928 was not an adoption”.
“But I have the papers: they are headed ‘Glasgow Corporation: Adoption Records 1928’”.
“Hm”, I said.
Local authorities only got involved in adoption (as we understand it today) after 1945, but the reference to Glasgow Corporation gave me the clue to explain what was going on, because local authorities under the Children Act 1908 had an obligation to visit and inspect, and keep records of the inspections, of all children in their area who were being brought up by persons other than their parents, if payment was involved. This was the case with Lulu’s mother, but what especially interested me was that the language used in the official records was “adoption” when to modern eyes what was going on was a paid fostering placement.
Judges too used the word “adoption” to describe a long-term fostering arrangement. One of the great Lord Presidents of the 19th Century, Lord Inglis (pictured below) in 1887 described the facts of a case as involving “an arrangement that the respondent and his wife were to adopt the child as their own, they being childless, and that the child was to remain permanently with them, the petitioner not being in a condition to support the child, and being apparently very willing to be quit of it”. The case arose when the mother demanded the return of her child and the respondents refused. (The court allowed the respondents to keep the child on the ground that to deliver it up to the mother would “seriously imperil” its welfare.) This was the start of the law providing protection and security to those who brought up the children of others. The Custody of Children Act 1891 soon followed, lowering the test to be satisfied when a parental demand for return was made.
That is the context in which the legal institution of adoption came into our law. The Parliamentary debates on the English Adoption of Children Act 1926, and the Scottish Act four years later, made plain that the primary concern was security for the adopters. The child’s welfare was a happy, but incidental, benefit gained on adoption. Adoption was designed to be very much a private law matter, regularising private arrangements.
Charities became heavily involved in adoption in the inter-war years, seeking to place “illegitimate” children with nice respectable couples. This served two purposes – it protected the reputation of the mother who could thereafter claim a white wedding, and it acted as a sort of infertility treatment for childless couples (long before medical intervention became a response to infertility). Again, the welfare of the child was a happy side-effect.
Charitable adoption societies started to be regulated by local authorities just before the Second World War, and in 1949 local authorities themselves were permitted to become adoption agencies. In 1975 local authorities were required to offer adoption services.
In the same timeframe, the consequences of adoption increased. Originally carrying little more than legitimisation and a ground to resist a parental demand for return of the child, wrongful death claims were extended to adoptive families in 1940, and the forbidden degrees of marriage extended to them in 1949. Succession consequences came in 1964, and the laws of incest extended to include adoptive families in 1986. Only with the Adoption (Scotland) Act 1978 did the legislation adopt (ha!) a model of total legal transplant of the child from one family to another. Today we think that is the natural and inevitable meaning of adoption, but it has reflected our law for only half the time adoption has been a legal institution in Scotland.
And the purpose of adoption changed too. The 1960s saw adoption coming to be used by local authorities as a means of privatising the care of children who were presently their (financial) responsibility through the child protection legislation: that it its primary function today. Though it remains a private law process, it is no longer one that ratifies a private agreement, but instead (other than with step-parent adoptions) one that involves the highly contested removal by the state of a child from its birth parents. It has become a public law process masquerading as a private law action. The procedure followed, the language engaged, the words we use, all serve to hide this reality.
Words are misleading, and legal historians can set us on the right path. At the RGU conference I talked about the Custody of Children Act 1891, and – as a throwaway remark – I suggested this was an early use in Scotland of a loanword from English law (Scots private law traditionally talking of tutory and curator rather than custody). Our erstwhile colleague, Professor John Blackie of happy memory, emailed me a couple of days later with a couple of early Scottish cases in Morison’s Dictionary from 1759 and 1586 in which the word “custody” was used in relation to claims over children. The usage dropped thereafter and as a student decades ago I imbibed the notion that “custody” was a statutory imposition of an alien concept in Scotland.
Prof. Blackie also reminded me that Lord Dirleton (he of the Doubts, and doughty prosecutor of the Covenanters) was involved in a case from 1704 in which the pursuer had sought to be “adopted” as Dirleton’s heir. This is a usage of “adoption” that can be traced back to Roman law and was received not legally but linguistically in Scotland. You know nothing if you know no history, and you know no history if you care nothing for words.