Note: this was not originally written as a blog post, as you can probably tell…
It is explicit in government policy that there has been a push towards more and faster adoption. This was notably so under Michael Gove, who was himself adopted:
- Speech: Michael Gove speech on adoption
- Policy document: proposals for placing children with their potential adopters earlier.
In fact, the press for more adoption neither started nor ended with Michael Gove, and arguably more properly represents a pendulum swing, between a model of social work that favours family support (intervention to keep families together) and one that favours child rescue (intervention to give children a better life).
This paper sets out, only briefly, some of the legal issues that have arisen in relation to the policy push for adoption. In is underpinned by two broad points about the nature of the law:
- Policy is not the same as law. Policies do not have the force of law and any policies should be critically examined to identify what legal authority supports them.
- Law is not the same as legislation. Legislation carries legal authority but is only one of a number of sources of legal authority. Legal authority is also to be found within our international treaty obligations, including human rights obligations and EU law, within common law and caselaw, and to some extent within statutory guidance.
Where indicated, this analysis draws on English law with which I am most familiar.
2. The Human Rights dimension
The subheading disguises complex issues as to whether there is a single human rights dimension:
- The UK has signed up to relevant human rights treaties that are not enforceable under our Human Rights Act, including the UN Convention on the Rights of the Child;
- There is an overlap between human rights and EU law arising from the European Union Charter of Fundamental Rights, which the UK tried, but quite prossibly failed, to opt out of in the Lisbon Treaty;
- There is a debate (which may possibly be termed the modernity debate) about whether the international human rights framework is essentially a Western imposition.
Nonetheless, the human rights dimension is revealing:
- It reveals that the atomisation of the interests of the child and the interests of the parents, setting the human rights of one in conflict with the human rights of the other is a peculiarly Western approach. Note in particular that whereas human rights may be conceived as privileging the rights of humans over the rights of States, this atomisation approach puts the State straight back in the picture as the arbiter of the dispute between the conflicted interests of parent and child.
- It reveals that the approach that favours non-consensual adoption as the resolution of the conflict is not merely Western but largely limited to the Anglosphere – including being out-of-step with most of Europe, see below.
So, briefly, the UN Convention on the Rights of the Child asserts in opening
“that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community”
Meanwhile, caselaw on the European Convention on Human Rights (to be given effect under our Human Rights Act) says,
“On the one hand, there is no doubt that ensuring that the child grows up in a healthy environment falls within this interest and that Article 8 cannot in any way entitle a parent to have such measures taken as would harm the child’s health and development.
On the other hand, it is clear that it is nevertheless in the child’s interest that the links between him and his family should be maintained except where the family is shown to be especially unworthy for that purpose; to break that link amounts to cutting the child off from his roots. It follows that the child’s interest necessitates that only wholly exceptional circumstances may lead to a breaking of the family bond and that everything should be done to maintain personal relations and, where possible and when the occasion arises, to “reconstitute” the family.
In the interest not only of the parent concerned, but also of the child, the ultimate aim of any “care order” must be to “reunit[e] the … parent with his or her child” (see the following judgments: Olsson (no. 1) and Johansen, cited above, pp. 36-37, § 81, and pp. 1008-09, § 78, respectively; and E.P. v. Italy cited above, § 64).
3. The European dimension
I have said that in human rights terms, non-consensual adoption not only flies in the face of practice across much of the world, but also of much of Europe:
“the UK is unusual in Europe in permitting the total severance of family ties without parental consent… we need to recognise that the judicial and other State authorities in some countries… may take a very different view and may indeed look askance at our whole approach to such cases.”
This conflict is coming to the fore because of growing European migration, which has these legal consequences:
- It is possible for a European migrant to permanently lose their child as a result of migrating to this country temporarily, and increasingly it is happening, and causing some consternation in other European states; and
- There are European treaty obligations where there is a child potentially subject to more than one European jurisdiction (see Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Brussels II”))
In the most poignant cases, there becomes a conflict between the desire of English social workers to hold onto children to protect them, and foreign governments to protect their jurisdictional rights over their own nationals.
4. Keeping the family together in English law
This far I have suggested non-consensual adoption creates a conflict being permitted in English law, but largely at odds with international human rights and European practice. But what about English law? Just because non-consensual adoption is permitted, does that mean the law agrees with the policy as to its being desirable? No.
Three quotes to summarise the position in English law:
First, how drastic a step is non-consensual adoption?
“It must never be forgotten that, with the state’s abandonment of the rights to impose capital sentences, orders of the kind which judges of this division of typically invited to make in public law proceedings are amongst the most drastic that any judge in jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child forever.”
Re L (Care: Assessment: Fair Trial)  EWHC 1379 (Fam)
Second, a reminder of the natural family as the default.
“Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in In re KD (A Minor: Ward) (Termination of Access)  1 AC 806, 812, said this:
‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature.’
… It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.
That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the court’s and social services’ powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in section 31(2) is made out”
Third, “the child is not the mere creature of the State”
“In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State”.”
So the courts, recognising that non-consensual adoption is permitted, have developed a line of caselaw that says that the test for non-consensual adoption is not the best interests of the child, but rather one of necessity – a test that brings the law and the courts into conflict with government policy, as the President of the Family Division explicitly recognised in his speech to BASW’s AGM this year.
Two issues where “nothing else will do” has come into play:
- Linear reasoning In the past, social workers would eliminate options starting with the least invasive, until only the most invasive was left. The courts have said that the problem with this is that it fails to confront the disadvantages of the most invasive option:
“The linear model proceeds by evaluating and then eliminating each individual option in turn before selecting the option at the end of the line, without evaluation of its own internal merits or de-merits, simply on the basis that it is the only remaining outcome. Much therefore depends on which end of the line the selector starts the process. Conventionally those judges who deploy a linear approach start, for understandable reasons, with the option of rehabilitation to a parent and end with the option of a care or adoption order. If, however, for the purposes of observing the dangers in the process, one were to start at the other end of the line and look at long-term foster care or adoption first, and were then to rule that out on the basis that there are risks and negatives attaching to it, the linear approach would soon arrive at ‘rehabilitation to a parent’ as the only remaining option and select that without any consideration of whether that is in fact the best outcome for the child. All would agree that such an approach would be untenable.”
- Dual planning In the past, plans have been made with a preference for adoption but a fall-back for, for example, long term fostering if adoptive parents cannot be found. The courts have noted that the very contemplation of a fall-back position suggests it is not the case that “nothing else will do”:
“As the Court of Appeal acknowledged in Re B-S (Children), the language used by the Supreme Court in In Re B (A Child)(Care Proceedings: Threshold Criteria) is striking. Adoption is ‘a very extreme thing, a last resort’ only to be made where ‘nothing else will do’, where ‘no other course is possible in [the child’s] interests’. Care plans proposing a time-limited search for an adoptive placement for a child with long-term foster care as the alternative are not uncommon. With respect to such a care plan, how can it be said that ‘no other course is possible in the child’s interests’ or that ‘nothing else will do’ in circumstances where the local authority itself proposes long-term foster care if a brief (in this case six months) search for an adoptive placement is unsuccessful?”
5. The ‘No Delay’ principle
An important part of the government’s response to the legal quagmire described above has been to promote the “no delay” principle. This principle has legislative force as a core principle in section 1 of the Children Act, and in the quarter of a century since it was passed has gained wide acceptance. Delay and uncertainty is unsettling for children.
Hence, an important plank in the government’s strategy to implement its programme to promote adoption has been to firm up the no-delay principle. There have not been the same legal objections to the no delay principle; and there have not been vociferous campaigns for delay as there are campaigns against non-consensual adoption. Thus, the government hopes to promote non-consensual adoption by tightening up the no delay principle. No delay has come to mean 26 weeks, first in speeches, then in guidance, and now in law – Children and Families Act 2014 section 14. If the time available for parents to address their difficulties, for alternative family carers to be found, or even for experts to be found, is capped at 26 weeks, then the range of circumstances in which non-consensual adoption takes place will thereby be increased.
The Ministry of Justice sent to every family court judge a copy of a report which argues the neuro-scientific case for no delay. This interesting approach resulted in a response from within social work which questioned the neuro-scientific research, and was also circulated to all relevant judges – a unique example, so far as I know, of such a dialogue between social work, law and science. But the dam had been breached for challenging the no delay principle. In the case of BS – an influential case which in some areas has become social work jargon “a BS compliant assessment” – the President of the Family Division, who had earlier said of 26 weeks that “my message is clear and uncompromising: this deadline can be met, it must be met, it will be met”, now felt able to say,
“If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.”
It is perhaps important to remember that the consensus that built up around the no delay principle emerged in a different era, a consensus that was about the harm of cases stagnating leaving children with uncertain futures due to administrative hold-ups. When the principle is invoked to fast-track non-consensual adoption, it is not surprising that it is more controversial. I leave the last word to Mostyn, J in a case which involved deciding “whether [a child] grows up in the Czech Republic, where full respect will be paid to his Czech Roma ethnicity and where it is likely that the parental link will be maintained, or whether he grows up in the United Kingdom as an English boy to become, in adulthood, an Englishman”:
“I accept entirely that the solution I have proposed and which I order will involve further delay in achieving finality… I accept that the avoidance of delay is an almost canonical prescription in this kind of proceedings. However, bearing in mind that I am making arrangements which will affect the whole of [the child’s] life I do not believe that the most profound consequences of that decision should be sacrificed on the altar of the avoidance of delay.”