A patient is put up for adoption as a child and is adopted and raised by the adopter. As an adult their adopting parent dies. They find out who their biological parent is and they meet. They decide to informally resume their relationship and move in together. Three months later we need to use the powers of The Act. Who is the nearest relative? The Adoption and Children Act 2002 s46 says the biological mother has surrendered her responsibilities. Does the local authority have to go to court and appoint?
My understanding of this situation is that the death of an adoptive parent (from your example I assume the person was only adopted by one individual, not a couple) does not reinstate the legal status of the birth parent.
There may well be legal relatives in the adoptive family, who would be relevant in the s26 calculation.
A decision to make the birth parent the nearest relative would need to be taken at County Court, in my view.
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Totally agree with Steve around who the nearest relative would be (someone within the person’s adoptive family) but would add that the person themselves could apply to the court for displacement of their current NR - probably on the grounds that they were ‘otherwise unsuitable’ - there wouldn’t automatically be a need for a local authority to get involved. If the person remained on s2, and there was a request to consider s3, whilst the AMHP might chose to listen to the views of the biological parent, they couldn’t be consulted as the nearest relative (or object to the use of s3) that would remain a role within the adoptive family.
the other possibility is that if the person lived with their biological parent for 5yrs or more they could be regarded as the nearest relative