Aligning Adoption Law with Human Rights Ideals - Essay Example

RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals Aligning Adoption Law with Human Rights Ideals in European Convention of Human and Fundamental Freedoms 1950 RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals Earlier this year, the court dismissed an appeal made by the grandmother of a child who had been put up for adoption. The grandmother had been caring for the child for the past three years. The court refused to name her 'Special Guardian' of the child. Further, they denied her request for a contact order to be added to the adoption order. The appeal was dismissed on the grounds that the original judge was not found to be 'plainly wrong' in his ruling based on the current laws. Because of this, the grandmother now has little chance of having any sort of contact with her grandchild. Echoing throughout the Parliamentary Acts on adoption is the statement that 'the welfare of the child concerned is to be the court's paramount consideration' (Children and Adoption Act 11A(9), 2006). Given this dogma, one wonders how the severance of the above-referenced child's ties to her grandmother is truly taking all aspects of her welfare into consideration. The above ruling also begs the question of whether or not the court proceeding was in keeping with section 8 of the European Convention on the Protection of Human and Fundamental Freedoms 1950. Indeed, Diduck and Kaganas may be correct in their statement that "the complete replacement of one family with another may be out of step with human rights ideals. It may also be out of step with changing family practice' (Diduck and Kaganas, 2006). Current adoption laws in the United Kingdom stem from the Adoption Act of 1976, which was revised under the Children's Act of 1989. Further amendments were created with the Adoption and Children Act of 2002 and the Children and Adoption Act of 2006. 1 For summaries of legal judgments, see www.familylawweek.co.uk/library. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals From the time of the Adoption of Children Act in 1926, the majority of children adopted in the United Kingdom were infants. There was an explosion of abandoned infants after World War I. Women having affairs with soldiers while either unmarried or with husbands away at war led to many illegitimate births. These women, and the women who had taken care of these children were now working in factories. A better solution than abandonment was found in adoptions. The focus of these adoptions was twofold; adoption provided relief for unmarried mothers, and it allowed married couples, unable to conceive, to become parents. Most adoptions were closed and cloaked in secrecy. The 'clean break' these types of adoptions created was thought to be the best way for infants to create bonds of attachment to their new parents. The last several decades have seen many changes in social thinking and behavior. Some of these new ideas have led to drastic changes in the types and needs of adopted children. Illegitimacy and unwed mothers no longer carry the social stigma they once did, and many religions have grown more tolerant of these people, welcoming them whereas before they would have been shunned. As a result, more women are choosing to keep their infant children to raise themselves. New legislation has made divorce easier to obtain, thus there has been a growing number of single parents. Legislation has also allowed more women to obtain abortions for unplanned or unwanted pregnancies. 2 See Keating's discussion on the underlying issues of the enactment of the 1926 Adoption of Children Act. 3 Keating provides reasoning behind the clean break ideas of early adoption. For the opposing view, see Norrie (pg20). RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals These social changes, along with the wide spread use of more effective contraceptives, have caused the number of infancy adoptions to sharply decline since 1970.4 At the same time, adoptions of looked-after or foster children have increased. In 1975, 7% of all adoptions occurring in the United Kingdom were children that had been in care of local authorities. By the '90's, the percentage had increased to 40%.5 Most of these children had already developed ties with their birth families, be they parents, siblings, or other relatives. Studies have shown that a 'clean break' may not be in the best interests of these children. A five-year study was conducted by Dr. Elsbeth Neil, of the University of East Anglia's Centre for Research on the Child and Family. During this study, Dr. Neil found that, contrary to some beliefs, adopted children do not necessarily become confused or disturbed by having post-adoption contact with their birth relatives. Although adoptive parents may have harboured doubts, or been reticent about post-adoption contact at first, the majority felt better afterward. They felt more comfortable discussing the adoption with the child, developed an empathy toward both the child and the birth family, and overcame any fears they had toward their new role as parents. The birth relatives also felt better when allowed contact with the adoptive parents and child. This study found that these parents were better able to come to terms and accept the adoption, even when they were originally against it.6 4 & 5 Adoption and Children Bill of 2001 Regulatory Impact Assessment provides statistics and reasons for changing trends in infancy and older child adoptions. 6 For more supporting studies by Neil, see www.uea.ac.uk/swk/research/summaries. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals Kedward and Lucock also came to the conclusion that post-adoption contact was beneficial, in most cases, in their 1999 study, 'Mediation and Post-adoption Contact: A Research Evaluation.' The study found that a lack of contact did not help children to relinquish attachments to their birth family, but children who did have contact with birth relatives gained a better understanding of their adoption and were less likely to develop feelings of rejection. The study found that contact might have a positive impact in children achieving stability in their new placement. Birth families were reassured of their child's welfare and had access to further support through continued contact, as well.7 When a child is denied all contact with their birth family, various issues tend to arise for all parties involved. The child may suffer from low self-esteem and feelings of rejection. Because of this, they may experience difficulties in forming relationships throughout the course of their lives. Birth parents often feel shame over the 'loss' of their child, and often have more difficulty accepting the adoption. Adoptive parents have insecurities about their ability to raise the child, and tend to be less communicative when discussion about the adoption arise.8 With the overwhelming abundance of evidence that post-adoption contact is far more beneficial than harmful, it would seem that the laws would be more encouraging to that end. Though there has been some legislation to this effect, for the most part, it fails to meet modern standards. This being the case, should the law be so involved in such matters 7 For further information see (Kedward, Lucock, 1999. pgs 16-26). 8 Melina, Kaplan, and Roszia's findings have also been supported by studies by Neil and Lucock. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals Article 8 of the European Convention of the Protection of Human and Fundamental Freedoms 1950 ensures that public authorities cannot interfere in the private lives of citizens of a democratic society, except as necessary to uphold the law.9 While, unfortunately, it may be necessary in many cases for authorities to involve themselves in family life in order to protect the rights and freedoms, along with the health, of a child, it may overstep its bounds by continuing its involvement in the family in regard to limiting, restricting, and denying post-adoption contact. European human rights law gives three conditions that must be met if the actions of public authorities are to remain in compliance with Article 8 of the Convention. The first condition maintains that any actions taken by authorities must be in accordance with the laws of their country that regulate adoption and contact matters. Furthermore, such actions must have the legitimate aim of ensuring the welfare of the child. The last condition, and perhaps the most difficult to adhere to, is that authorities take only what actions are necessary in a 'democratic society.' The law also makes plain that even when such interference is deemed necessary, public authorities must restore the child to the family as soon as practicable.10 In regard to an adoption, this might mean getting the child settled in a stable setting with arrangements for contact with the birth family in place. 9 For complete wording of European Convention on Human and Fundamental Freedoms 1950, see www.conventions.coe.int/Treaty/en/Treaties/Html/005.htm. 10 Conditions are spelled out in Judgment to - Down Lisburn Health and Social Services Trust. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals The plaintiffs in the case P, C and S v United Kingdom [2002] 2 FLR 631 filed an application with the European Court of Human Rights to appeal the decision of the courts of the United Kingdom to create a freedom order for S, which denied P and C the right to have any contact with their child. The claim was made that the authorities failed to adhere to Article 8 on several matters. In failing to take into consideration the positive and beneficial contact between parents and their child, the authorities did not achieve their aim to see to the welfare of S. As further evidence of this failure, authorities did not take into consideration the negative effects that a complete cessation of contact would have for the child. The applicants also make the argument that authorities' decisions regarding care for the child were in excess of what was necessary. Their decision to deny a request for a contact order and refusal to attempt to find adoptive parents who may be open to contact has left the parents with no legal recourse and little hope of maintaining any contact with S. The European Court of Human Rights found that the arguments raised by P and C were worthy of further review and investigation, and subsequently approved their application of appeal.11 Further legislation to support the claims of the above referenced parents can be seen in the United Nations Convention on the Rights of the Child. The convention maintains that authorities need to respect the right of the child to maintain direct contact with their parents. The only exception to this statute is when direct contact is contrary to the child's best interest.12 11 Full decision can be found on www.nkmr.org/p_c_and_s_v_united_kingdom.htm. 12 Reference to convention legislation is in Contact Principles Practice Guidance and Procedures, paragraphs 61-68. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals An example of where such an exception is needed is within the judgment of Sheriff James A. Farrell. His decision in the petition for a freeing order by the City of Edinburg Council against PK and JF is that, given the history of poor and possibly harmful conduct of PK and JF throughout their contact with the children in question, their refusal to accept the need for an adoption, and their refusal to attempt to change such behavior through meetings, classes, or any other ways, the evidence that continued contact will be detrimental to the children is abundant enough to warrant the need for a freeing order and a denial of contact.13 'The primary effect of an adoption order is to irrevocably extinguish the legal relationship between a child and his or her birth parents and to create equivalent ties between the child and the adopters' (Neil, 2002. pg. 3). As was stated earlier, research findings have indicated that the total severing of ties between a child and his birth parents does not facilitate in the creation of new ties to the adoptive parents. Such a drastic step is not in keeping with the spirit of Article 8, if not the actual wording. One of the rights protected in the Convention is that of respect for one's family life. By 'irrevocably extinguishing' a parent's ties from his child, the law is, in effect, cutting a hole in that parent's family life. Further, by severing ties with the birth family so completely, the law has gone beyond their right to interfere in the child's family life (both birth and adoptive) because they are no longer protecting their welfare, but may, in fact, be causing distress and harm. 13 Case reference number for Sheriff Farrell's judgment is E38/04. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals Current law defines welfare as 'the health, happiness, and fortunes of a person or group; also, an action or procedure designed to promote the basic physical and material well being of people in need' (AskOxford.com). Part of ensuring a child's health and happiness is in fulfilling their mental and emotional needs, as well as physical and material. In the public authority's quest to see that a child's physical needs are met and to be sure they are physically healthy, they seem to place little regard on mental and emotional well being once the adoption has been finalized. One of the many problems that an adopted child must face during the course of their life is the formation of an identity for themselves. Children that have no contact with their birth families often struggle through this.14 Unlike in infant adoptions, older children may have memories of their lives before their adoption. Severing all ties with a birth family does not 'wipe the slate clean,' so to speak. These children turn to the only source of information they have available to them, their adoptive parents. In many cases, the adoptive parents know little about the child's birth family, and have no means of finding out anything more. This leads to frustration and a sense of loss and confusion, often leading to difficulties throughout the child's life. Yet this is what legislation says as being 'in the best interests of the child.' A child who has some form of contact, be it indirect or direct, often has less difficulty in creating an identity for himself. In this case, both the child and his adoptive parents have access to the best source of information available - the birth family. With post-adoption contact, the birth parent is able to provide answers to questions about the child's past, his heritage, culture, religion and numerous other areas of interest. The child is left with a fuller sense of self and a 14 Findings have been supported by all studies referenced in this paper. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals better understanding of their world.15 Had public authorities ceased their interference once the adoption had been finalized, the child's needs might have been more fully met. The Children Act of 1989 does allow for post-adoption contact. The legislation seems to once again infringe on Article 8 of the Human Freedoms Convention, however. The court may allow or restrict contact as it sees fit. Those members of the birth family who wish to have contact with the adopted child must apply for a contact order. If the application is approved, the court makes the decisions on the type of contact, direct or indirect, and with whom the contact occurs, the child or adoptive parents. Furthermore, the court may place any restrictions on the contact, such as when and where it may take place, how (via letters, phone calls, classes, etc), and how often contact may occur. The court also has the power to create a contact order even if none is requested if it believes said contact is in the child's best interest. Such restrictions and even the orders themselves interfere in the private family lives (and occasionally, correspondence) of both the birth family and the adoptive family. Even when there is no contact order created, public authorities are still involved in any decisions regarding post-adoptive contact. If the contact order is denied, or if there is no contact order, there is little birth families can do if adoptive parents decide to stop the agreed-upon contact.16 Although public authorities feel they must be involved in every other aspect of post-adoption decisions, at such a time that they are needed, they will not get involved. 15 Findings have been supported by all studies referenced in this paper. 16 See (Smith, Logan, 2004. pgs 44-45). RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals With the inclusion of the contact order in legislation, it would seem that antiquated thinking about adoption and the roles of birth families is catching up with the times. A ruling showed, however, that it still had a long way to go. The basic thoughts were that after an adoption was finalized, all rights and responsibilities were transferred to the adoptive parents, unless a contact order had been attached. The ruling made it clear that contact orders should only be made in 'exceptional circumstances,' and in all other cases, the birth parents should be left with nothing.17 As time has gone on, courts have gotten more lenient in their rulings regarding post-adoption contact. The Adoption and Children Act of 2002 has given a checklist in regard to post-adoption contact for the courts to use as a guideline to ensure that the welfare of the child is being met. The criteria are as follows: Is there harm or risk of harm to the child The child's wishes (based on age and understanding) The relationship between child and birth relative The likelihood and benefit of said relationship continuing The ability and willingness of relatives to provide a secure environment for the child The wishes of the relatives18 17 Information was paraphrased from Contact After Adoption: The Contribution of Adoptive Parents' empathy for Children and Birth Relatives (Neil, 2002. pg 3). 18 Criteria taken from Adoption and Children Act 2002. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals Though the above criteria does not depend on there being an 'exceptional circumstance,' the question still remains as to whether or not they are infringing on the basic rights of families to live their private lives without interference. It might be argued that it is in the best interests of the child that the public authorities not be involved. There can be some confusion when a ruling by the judge regarding contact is either unclear or misleading. In the case Re S (Care: Parental Consent) [2005] 1 FLR 469, a mother requested a contact order for her three adopted children. The guardian had recommended that a leave to refuse contact be made in the event that the mother did not keep to the arrangements in the order. The judge decided not to create an order, but still expected the contact to take place. This gave the impression that contact had been terminated.19 Such confusion may have been avoided had the 'middleman' been taken out of the picture, and the arrangement made between the birth and adoptive parents alone. Just by looking at legislation and case law, one can easily see how slowly the law progresses and evolves compared with changing times and society. In the case of a child, change occurs even faster. As they grow and develop, their needs change. What was necessary for the child's welfare when they were say, five years old, may be obsolete at ten years, which will most certainly be different at sixteen. Contact with a member of the birth family that was deemed unbeneficial when the child was first adopted might be very necessary at any point down the road. Is it prudent, expedient, or in the child's best interest to continuously be going to court to apply for contact orders and explain their necessity It is an example of the court overstepping their bounds and 19 Judgment summaries on adoption rulings found on www.becketchambers.co.uk/assets/documents/newsheet.wps.doc. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals interfering in the private lives of families when they are not in a position at that point to know what is in the best interest of the child. In fact, the Children Act 1989 also warns that any delay in proceedings in reference to the raising of a child is likely to prejudice the welfare of the child.20 This being said, perhaps authorities need to take a closer look at when their involvement is truly needed, and when decisions are better left to the adoptive parents working with birth parents in regard to contact. There exists in today's society openness and acceptance that perhaps was not as evident in the past. More and more, birth and adoptive families are working together to see to the welfare of adopted children. In many cases, birth families are looked on as extended family on the part of adoptive parents. The fact that birth parents are no longer able to care for their children does not necessarily mean that severing all ties is the best thing to do. There must come a point when a child's rights and health are no longer threatened. Public authorities need to recognize this and step back, or they risk violating Article 8 of the European Convention of Human and Fundamental Freedoms 1950. Continued interference with regard to restricting, limiting, or denying contact with the child when he is in no danger not only infringes on the basic rights of the child, his birth family, and his adopted family, but has the potential to actually do harm to the child's mental and emotional health and well being which, paradoxically, is in violation of the adoption acts they are trying to uphold. 20 Reference to convention legislation is in Contact Principles Practice Guidance and Procedures, paragraphs 61-68. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals References A guide for the child's parents on changes in the law. Retrieved 20 May 2007 from http://www.direct.gov.uk. Adoption. 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Retrieved 20 May 2007 from http://www.refer.nhs.uk/ViewRecord.aspID=76. National adoption standards for England (2001). Department of Health. Retrieved 20 May 2007, from http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/ PublicationsPolicyAndGuidance/DH_4006621. Neil E. A longitudinal study of contact with adult birth relatives after adoption of children under 4 at placement. Retrieved 17 May 2007 from http://www.uea.ac.uk/swk/research/summaries/contact_adoption2.htm. Neil E (2002). Contact after adoption: The contribution of adoptive parents' empathy for children and birth relatives. P 3. Retrieved 18 May 2007 from http://www.uea.ac.uk/swk/research/summaries/ottawapaper.pdf. Norrie K (2005). Adopting a new approach. The Journal online, July, p 20). Parental responsibility. Retrieved 18 May 2007 from http://wwwclickdocs.co.uk/parental-responsibility.htm. Re S (Care: Parental contact) [2005] 1 FLR 469. Case Law Update - January to April 2005. Retrieved 20 May 2007 from http://www.becket-chambers.co.uk/assets/documents/newsheet.wps.doc. RUNNING HEAD: Aligning Adoption Law with Human Rights Ideals Research in practice - Quality protects research briefing no 5 adoption and permanence for children who cannot live safely with birth parents or relatives. Retrieved 20 May 2007 from http://www.rip.org.uk/publications/documents/QPB/QPRB5.asp. Smith C. & Logan J (2004). After adoption: Direct contact and relationships. Routledge, London pp 44-45. The beacon council scheme: Adoption. Retrieved 18 May 2007 from http://www.bris.ac.uk/sps/downloads/Hadley/hadley_05.doc. UK statute laws. Retrieved 19 May 2007 from UK statute law database. Read More