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

Mary Welstead CAP Fellow Harvard Law School; Visiting Professor in Family law University of Buckingham

In 1961 Elvis Presley sang:

‘Home is where the heart is

And my heart is anywhere you are

Anywhere you are is home

I don't need a mansion on a hill.

In Re YP Mrs Justice Arbuthnot might well have cited the above words prior to reaching the conclusion that the word home was a flexible and emotional concept rather than a fixed physical entity. According to the judge a person could be said to have a home with those with whom he or she enjoyed an ongoing familial relationship even if they did not share the same physical space. The judge also interpreted the phrase living together in an enduring relationship in a liberal manner thus adding her input to the progressive judicial rewriting of the Adoption and Children Act 2002. By constructing the legislation in a purposive manner 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...