A Failure of Proportion

Non-Consensual Adoption in England and Wales

Samantha M Davey

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509929146
• Edition: 1
• Topic: Jura
• Subtopic: Familienrecht

This book explores non-consensual adoption - an area of law which has sparked considerable debate amongst academics, practitioners and the judiciary nationally and internationally. The emphasis of this book is on the circumstances in which non-consensual adoption may be regarded as a proportionate measure and when less severe forms of intervention, such as long-term foster care or kinship care, may also meet children's needs while providing protection to children's rights under the European Convention on Human Rights. The book builds on existing literature on adoption law but takes the discussion in new directions, placing an emphasis on the need to closely scrutinise children's and parents' rights at all stages of the adoption process, not simply when parents appeal against the making of an adoption order. A unique feature of this book is its emphasis on routinely incorporating key provisions from the United Nations Convention on the Rights of the Child into analysis when determining whether an adoption order is a proportionate measure.

1

Introduction

I.Non-Consensual Adoption: The Legal Issue and Social Climate

A picture is worth a thousand words. In a well-publicised YouTube video,¹ which later gave rise to the case of Re J (A Child),² a social worker can be seen forcibly removing a baby from a crying mother’s arms. The video is highly emotive and disturbing, and yet the parents’ situation is just one example of many troubling stories alleging that the making of a care order and a subsequent non-consensual adoption have been disproportionate measures. Stories emphasising the lack of transparency in adoption proceedings and the perception that parents’ and children’s rights receive insufficient protection in non-consensual adoption cases can be discovered on divergent sources online, including the BBC,³ The Telegraph,⁴ The Guardian,⁵ The Daily Mail⁶ and various blogs.⁷ Television documentaries,⁸ online petitions⁹ and freedom of information requests¹⁰ have been made. Non-consensual adoption is controversial and has, in recent years, been scrutinised closely in the UK superior courts.¹¹

At present, the Adoption and Children Act 2002 (ACA 2002) allows non-consensual adoption¹² in England and Wales even though it interferes with parents’ and children’s human rights under the European Convention on Human Rights (ECHR).¹³ This author expresses concern about the application of the proportionality principle in English law in non-consensual adoption cases. It is not disputed that adoption orders can, in some circumstances, be the best measure available to protect children’s rights and welfare once children have been removed into care. There may be cases where children will not be safe in the care of their parents, and where ongoing contact between children and parents may not be in the children’s best interests due to severe and even life-threatening neglect or abuse. In other circumstances, children themselves do not wish to live with or maintain relationships with their parents due to the severe neglect¹⁴ and/or physical¹⁵ or emotional¹⁶ abuse they have experienced.¹⁷ In these situations, it will not be in their best interests to be reunited with their parents. In the absence of other suitable alternatives, children’s rights may be best protected via adoption orders.

However, adoption orders are sometimes made in circumstances where less intrusive and equally effective measures are available to protect children from harm. These measures include court orders (eg supervision orders, care orders and special guardianship orders) and alternatives such as kinship care and the provision of practical and financial assistance to families vis-à-vis the state. Furthermore, in circumstances where parents are unfit, it may still be possible for children to have safe and beneficial contact with their birth parents via open adoption.¹⁸ The question is then whether adoption should be the first choice to ensure stability and permanence for children, or the last resort when other options have been exhausted?

This book tackles the aforementioned issue by exploring the relationship between non-consensual adoption and the proportionality principle. This principle is significant because it is taken into consideration by the superior courts in England and Wales – as well as by the European Court of Human of Rights (ECtHR) – when parents choose to appeal against adoption orders that have been approved by the courts. The proportionality principle is a set of legal criteria that establishes whether or not a measure taken in the furtherance of a state objective is commensurate to that objective.¹⁹ This book is thus concerned with the circumstances in which a non-consensual adoption will and will not be regarded as a measure commensurate to the state’s objective of protecting children’s welfare.

Proportionality can potentially be applied by the courts when making an adoption order and is an important principle that ought to be considered by the domestic courts, but it is not routinely considered by the inferior courts. The proportionality principle is applicable once adoption orders have been made and challenged by parents. It is argued that proportionality ought to play a more important role in determining whether an adoption order should be made in the first place, with reference to the United Nations Convention on the Rights of the Child 1989 (UNCRC)²⁰ as an important tool of interpretation. A shift in approach has important consequences for legal decision-making, and is likely to improve the protection of children’s and parents’ rights from the outset of the adoption process. Throughout this book, it is emphasised that children must be protected from harm but that legal and practical protection from harm must be proportionate.

The book will navigate the relationship between children’s welfare and the human rights of children and their parents under Article 8 ECHR (which concerns the right to respect for a private and family life). In principle, non-consensual adoption constitutes an interference with children’s and parents’ rights, which may be justified under Article 8(2) to protect children from harm. There are instances, therefore, where parents’ rights under Article 8 ECHR to relationships with their children may clash with their children’s rights under Article 2 ECHR (the right to life) and Article 3 ECHR (the right to protection from torture or from inhuman or degrading treatment or punishment) to be protected from the risk of significant harm. There may also be a clash between children’s own rights under Article 8 ECHR to relationships with their parents on the one hand and their rights under Articles 2 and 3 of the ECHR on the other to be protected from the risk of significant harm. The principal focus here is on the relationship rights of children and their parents, but this book will also consider children’s relationships with other members of their birth family, particularly grandparents and siblings.

II.Background to Non-Consensual Adoption: A Controversial Solution

Understanding the legal landscape of adoption requires an explanation of the government policy objectives that led to the increased usage of non-consensual adoption. In 2000, the Waterhouse Inquiry²¹ raised concerns about the poor social, emotional and educational long-term outcomes for children in care.²² While parental neglect or abuse may predispose children to poor long-term outcomes,²³ remaining in state care is, nonetheless, seen as detrimental to children’s well-being.²⁴ Statistically, figures suggest that children in care are more likely to suffer from mental illness, to perform poorly at or fail their GCSEs²⁵ and are more likely to go to prison than children outside of the care system.²⁶ The high numbers of and poor outcomes for children in care considered in the Waterhouse Report sparked discussion on how law and policy reform could best tackle this social problem. Based on the positive social, emotional and educational outcomes for adopted children,²⁷ adoption was seen by the (then) Labour Government as the best option for removing children from care and for improving their long-term outcomes in life.²⁸ This led to the enactment of the ACA 2002, which sought to increase the number of adoptions and speed up the adoption process to avoid undue delay and uncertainty for children and prospective adopters.

This policy led to a significant increase in the number of non-consensual adoptions,²⁹ which made these adoptions more controversial. The numbers of adoptions steadily increased until 2015. However, there has been a shift in this trend. In the year ending March 2017, 2,520 children in care were placed for adoption, which accounted for 3 per cent of all children in care.³⁰ This was a decline of 20 per cent on previous years.³¹ Several factors may have led to this decline, including wider concerns from campaigners about the high numbers of adoptions that had taken place and increased superior court scrutiny of non-consensual adoptions.³²

Section 52(1)(b) of the ACA 2002 provides for adoption orders to be made without parental consent on the basis of the child’s ‘welfare’.³³ Section 52(1)(a) of the Act similarly provides for parental consent to be dispensed with, but does so on the basis of parental capacity. The discussion will focus on whether or not the rights of birth parents and children to develop and maintain relationships with one another are given sufficient weight and consideration in non-consensual adoption cases. This will involve exploring the potential for conflict between parents’ and children’s rights under the ECHR and the UNCRC, in cases where children are at risk of significant harm, and how such conflicts may be resolved.

This analysis will inform the central issue in this book, namely whether non-consensual adoption in England and Wales under section 52(1)(b) of the ACA 2002 can be regarded as a proportionate measure and, if so, in what circumstances it may be regarded as proportionate. In deciding whether an adoption order should be made, the courts must have regard to the welfare checklist under section 1(4)(a) of the ACA 2002. In order to determine when non-consensual adoption is a proportionate measure, this enquiry will consider when non-consensual adoption strikes the appropriate balance between the best interests and rights of the child on the one hand and the rights of the birth parents on the other. In order to determine whether or not the appropriate balance has been struck, this book will explore whether there are less restrictive alternatives available (such as state assistance, kinship care, special guardianship or non-consensual adoption with direct contact), which may be equally effective measures to protect children from harm.³⁴

This book explores how the courts apply the best interests test and human r...

Table of contents

• Cover
• Dedication
• Title Page
• Preface
• Acknowledgements
• Contents
• 1. Introduction
• 2. Children’s Best Interests and Children’s and Parents’ Rights
• 3. Adoption Cases in the European Court of Human Rights
• 4. Adoption Cases in the Courts in England and Wales
• 5. Alternatives to Non-Consensual Adoption
• 6. Conclusion
• Index
• Copyright Page