Social services in Europe: legislation and practice of the removal of children from their families in Council of Europe member States

OK, it’s not a pithy title. It is, however, the formal title of the document that I’m about to review. And it is an accurate description of what the document is about. Here it is: http://website-pace.net/documents/10643/1127812/EDOC_Social+services+in+Europe.pdf/dc06054e-2051-49f5-bfbd-31c9c0144a32.

Preliminary points then:

• I’ve blogged here before with a ‘Briefing paper on non-consensual adoption and the law‘. It included observations on the human rights dimension and on the European dimension. I am pleased to see that this is a Committee of the Council of Europe, saying pretty much exactly the same things as I did.
• PACE is the Parliamentary Assembly of the Council of Europe, which oversees the European Court of Human Rights. The origins of this report lie in a motion on “abuse by social services of member States of the Council of Europe of their authority to remove children from their parents’ custody” – a history of the progress of this report, including a visit to the United Kingdom, can be found here: http://website-pace.net/documents/10643/59254/RepPrepSOC-E.pdf/1b1d25ac-757f-4916-9c44-9180531dfae6#page=3.
• This report went to the Parliamentary Assembly last week, and the Assembly adopted the recommendations unanimously.
• The report expressly considers the practice of non-consensual adoption in the United Kingdom, and frames it within the broader context of practice elsewhere.

Key points from the report

[Or, the things that I particularly picked out!]

The report highlights the legal framework for adoption. Since this is for the Council of Europe, what this means is the framework as derived from international treaties and international caselaw. Nothing here is new: the dual emphasis is on protecting children, and on reuniting families. Adoption permanence does not feature in the review of the international law principles.

1. Is the United Kingdom “unusual in Europe” in permitting non-consensual adoption?

This is a phrase that I have used, including in my previous blog, drawing on judgments of the Courts of England and Wales such as this: E (A Child), Re [2014] EWHC 6 (Fam) (14 January 2014) at paragraph 15.

It seems that permitting non-consensual adoption is not so unusual – the courts may need to revise their phraseology:

Adoptions without the consent of the parents are not possible in France, Greece, Luxembourg and Spain. They are rare (practiced only exceptionally) in: Canada, Cyprus, Lithuania, the Netherlands, Romania, Serbia and Switzerland. In some countries which proscribe adoptions without the consent of the parents (for example, in Russia), the child can be given up for adoption if his/her parents are unknown, legally incapable or whose whereabouts have been recognised as unknown by a court. They are possible in Andorra, Croatia, Estonia, Georgia, Germany (in 2010, 250 children were placed for adoption without the parents’ consent), Hungary, Italy, Montenegro, Norway, Poland, Portugal, Slovenia, Sweden, Turkey, and the United Kingdom (in 2013, 3,020 children were placed for adoption without the parents’ consent).

2. What particular concerns were expressed about UK adoption practice?

The main part of the report critiquing practice here begins at paragraph 71 ‘Frequent recourse to adoptions without parental consent’. This falls within part 5.4, headed ‘Abusive Practices’, which opens with this statement:

Unfortunately, some countries engage in practices which can only be labelled as abusive, even if they are well-intended. The most frequent of them are: the unwarranted complete severing of family ties, often in combination with removing children from parental care at birth, basing placement decisions on the effluxion of time and/or recourse to adoptions without parental consent. [my emphasis]

While it may be possible to think of examples of all of these within the UK, the focus narrows at paragraph 73, making clear the concern is the extent of adoption for permanence (and by extension, whether the circumstances in which it is permitted go too far):

England and Wales are really unique in Europe in placing so many children for adoption, in particular in the young age group which is “popular” on the adoption market. Statistics show that under 20% of children forcibly taken from parents who leave care aged under 5, return to their parents.

The report goes on to mention

• “Michael Gove, himself adopted” and his policy push towards adoption;
• “30 large private adoption agencies and a plethora of smaller ones [allowed] to get involved in the process”;
• “when nothing else will do” – which is meant to be the threshold standard”
• “a flaw in the English/Welsh legal system means that adoption orders cannot be reversed in any circumstances – in a misunderstanding of the “best interest of the child” who actually has a right to return to his/her birth family”.

3. What about Romania?

I put that as a heading simply because I was moved by an account within the report of an issue relating to adoption practice in Romania. In numerical terms, it absolutely dwarfs the full extent of adoption in England and Wales. It relates to children starving in absolute poverty:

49. I would like to cite the Romanian experience in this context. The most frequent reason why children are taken into care in Romania actually seems to be poverty (there was consensus on this: this was the view of the Minister, the Children’s Ombudsman, parliamentarians and the NGOs). Thus, in the county I visited, 120 km from Bucharest, the most important removal reason was neglect due to severe poverty. We are talking extreme poverty here: children ring child helplines because there is not enough food in the house, for example. In particular in rural areas, the poverty can be very extreme (also due to the lack of services in rural areas). Roma families are particularly hard-hit, in particular when it comes to sub-standard housing and unemployment.

50. All my interlocutors mentioned the phenomenon of abandoned children in this regard: 300,000 Romanian parents have left to work abroad – and there seem to be more than 100,000 abandoned children left to their own devices entirely, the others left with one parent, grandparents or with family friends, who cannot fully provide for the children. This is an acute problem which can also be observed in other countries of Eastern Europe, and should be given appropriate attention.

…53. I think it would be the primary obligation of the state to ensure that no child goes hungry… rather than removing these children from their family because of poverty.

Quite.

4. Over- and under-representation of ethnic groups

Romania and the UK feature again here:

Romania does not collect statistics on the status of children in care, but NGOs I met estimated that nearly 70% of them came from the Roma minority. The United Kingdom, in contrast, has detailed data on the ethnic background of children taken into care: “black” or “mixed-raced” children are over-represented by four times in the care system, while children with a family background from India, Pakistan and Bangladesh are under-represented by three times.

Update 29th April 2015: following debate in April 2015, here is the report and recommendations from the Parliamentary Assembly: http://assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewPDF.asp?FileID=21737&lang=en. Key are:

“The Parliamentary Assembly is concerned about the violation of children’s rights in some countries (or regions thereof), when social services take some children into care too rashly and do not make enough effort to support families before and/or after removal and placement decisions. These unwarranted decisions usually have a – sometimes unintended – discriminatory character, and can constitute serious violations of the rights of the child and his or her parents, all the more tragic when the decisions are irreversible (such as in cases of adoption without parental consent)… The Assembly thus recommends that member states avoid, except in exceptional circumstances provided for in law and subject to effective (timely and comprehensive) judicial review, severing family ties completely, removing children from parental care at birth, basing placement decisions on the effluxion of time, and having recourse to adoptions without parental consent”

Allan Norman (@CelticKnotTweet) is an independent social worker at Celtic Knot. Between 2006-13 Celtic Knot was also his law firm. Allan now works at the British Association of Social Workers, leading on Policy, Ethics and Human Rights, including International issues. This blog is maintained in a personal capacity and does not necessarily represent the views of the British Association of Social Workers.