The politics of adoption : international perspectives on law, policy and practice [4 ed.] 9783030655884, 3030655881

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Ius Gentium: Comparative Perspectives on Law and Justice 86

Kerry O’Halloran

The Politics of Adoption International Perspectives on Law, Policy and Practice Fourth Edition

Ius Gentium: Comparative Perspectives on Law and Justice Volume 86

Series Editors Mortimer Sellers, University of Baltimore, Baltimore, MD, USA James Maxeiner, University of Baltimore, Baltimore, MD, USA Editorial Board Myroslava Antonovych, Kyiv-Mohyla Academy, Kyiv, Ukraine Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil Jasna Bakšic-Muftic, University of Sarajevo, Sarajevo, Bosnia and Herzegovina David L. Carey Miller, University of Aberdeen, Aberdeen, UK Loussia P. Musse Félix, University of Brasilia, Federal District, Brazil Emanuel Gross, University of Haifa, Haifa, Israel James E. Hickey Jr., Hofstra University, South Hempstead, NY, USA Jan Klabbers, University of Helsinki, Helsinki, Finland Cláudia Lima Marques, Federal University of Rio Grande do Sul, Porto Alegre, Brazil Aniceto Masferrer, University of Valencia, Valencia, Spain Eric Millard, West Paris University, Nanterre Cedex, France Gabriël A. Moens, Curtin University, Perth, Australia Raul C. Pangalangan, University of the Philippines, Quezon City, Philippines Ricardo Leite Pinto, Lusíada University of Lisbon, Lisboa, Portugal Mizanur Rahman, University of Dhaka, Dhaka, Bangladesh Keita Sato, Chuo University, Tokyo, Japan Poonam Saxena, University of Delhi, New Delhi, India Gerry Simpson, London School of Economics, London, UK Eduard Somers, University of Ghent, Gent, Belgium Xinqiang Sun, Shandong University, Shandong, China Tadeusz Tomaszewski, Warsaw University, Warsaw, Poland Jaap de Zwaan, Erasmus University Rotterdam, Rotterdam, The Netherlands

Ius Gentium is a book series which discusses the central questions of law and justice from a comparative perspective. The books in this series collect the contrasting and overlapping perspectives of lawyers, judges, philosophers and scholars of law from the world’s many different jurisdictions for the purposes of comparison, harmonisation, and the progressive development of law and legal institutions. Each volume makes a new comparative study of an important area of law. This book series continues the work of the well-known journal of the same name and provides the basis for a better understanding of all areas of legal science. The Ius Gentium series provides a valuable resource for lawyers, judges, legislators, scholars, and both graduate students and researchers in globalisation, comparative law, legal theory and legal practice. The series has a special focus on the development of international legal standards and transnational legal cooperation.

More information about this series at http://www.springer.com/series/7888

Kerry O’Halloran

The Politics of Adoption International Perspectives on Law, Policy and Practice Fourth Edition

Kerry O’Halloran White Park Bay Northern Ireland, UK

ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice ISBN 978-3-030-65587-7 ISBN 978-3-030-65588-4 (eBook) https://doi.org/10.1007/978-3-030-65588-4 1st –3rd editions: © Springer Science+Business Media Dordrecht 2006, 2009, 2015 4th edition: © Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

The fourth edition of The Politics of Adoption, standing on the shoulders of its predecessors, owes a great deal to the many academics and others whose contributions to previous editions have made this one possible.1 It has been heartening to engage in a collegiate enterprise with so many experts around the world who were willing to forgive my ignorance and correct my mistakes. For their time, diligence, and considerable effort I am sincerely grateful. This edition has similarly benefited from those who took the time and trouble to read chapters and offer comments, some of whom have been consistently supportive in this as in earlier editions. Among the latter, Geoffrey Shannon2 again made very helpful comments in respect of the chapter on Ireland. The advice of Brian Sloan3 on adoption law in England and Wales was most useful. In Europe, Jörg Reinhardt4 in Germany, Pascale Salvage-Gerest5 , and Janice Peyré6 in France, together with Johanna Schiratzki7 in Sweden, made invaluable contributions. Further afield on that

1 Including

the following: Stephen Cretney, Deborah Cullen, Ursula Kilkelly, Greg Kelly, Patrick Parkinson, Lee Ann Basser, Ann Estin, Charles Putnam, Barbara Woodhouse, John Triseliotis, Gillian Douglas, Joan Heifetz Hollinger, David Smolin, Ruth Kelly, Frank Bates, Neville Turner, Khylee Quince, Martha Bailey, Bill Atkin, Rhoda Scherman, Weiguo Zhang, Kay Johnson, Anna Singer, Laurence Francoz-Terminal, and Nina Dethloff. 2 Deputy director of Education at the Law Society of Ireland and Special Rapporteur on Child Protection, Dublin, Ireland. 3 College Lecturer and Fellow in Law, Robinson College, Cambridge, England. 4 Professor, Fakultät 11—Fakultät für angewandte Sozialwissenschaften, Hochschule München/University of Applied Sciences—München, Germany. 5 Professor at Law (honorary), Grenoble Alpes University, Grenoble, France. 6 Chair (honorary) of Enfance and Familles d’Adoption and a former member of the Conseil national pour l’accès aux origins. 7 Professor i välfärdsrätt, docent i civilrätt, Ersta Sköndal Bräcke högskola, ISV, Sweden. v

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continent, I am greatly indebted to Ana Muntean8 and Rebeca Popescu9 in Romania and Olga A. Khazova in Russia10 who were all unstinting in sharing their expertise. The North American complexities and jurisdictional differences were explained by Diane Kunz11 and Lori Chambers12 in relation to the USA and Canada, respectively, and by Penny Mackieson13 and Bill Atkin14 (once again) as regards Australia and New Zealand. Werner Menski15 and Satoshi Minamikata16 were, as always, exceptionally diligent, kind, and forgiving when reviewing the chapters on adoption in Islamic and Japanese contexts, respectively. The account of adoption law and practice in South Korea and in China would have been impossible without the patient assistance of Kathleen Leilani Ja Sook Bergquist.17 Leslie Wang18 was more than generous in sharing her knowledge in relation to China, and Jieren Hu19 was also most helpful. Despite the best efforts of all the above, there will nevertheless be inaccuracies, gaps, and inconsistencies. These together with all views expressed are, sadly, inescapably attributable to the author who apologizes unreservedly for lack of due diligence and for any confusion or offense inadvertently caused. Thanks, Elizabeth, for once again tolerating this self-indulgence.

8 Professor,

Social Work Department, Sociology and Psychology, Director of Research Center CICOP, Editor-in-chief of TCTP Journal, West University in Timisoara, Romania. 9 Dr., Lecturer at University of Bucharest, Faculty of Sociology and Social Work. 10 Professor, The Moscow School of Social and Economic Sciences; NRU ‘Higher School of Economics,’ Russia. 11 Counsel to Rumbold and Seidelman and Executive Director of the Center for Adoption Policy, New York, USA. 12 Professor, Department of Women’s Studies, Lakehead University, Thunder Bay, Ontario, Canada. 13 Ph.D., MSW, BSW, Melbourne, Victoria, Australia. 14 Professor of Law, Victoria University of Wellington, New Zealand. 15 Professor of South Asian Laws, School of Oriental and African Studies, University of London, England. 16 Professor of Law, Faculty of Law, Niigata 950-218, Japan. 17 Associate Professor/BSW Coordinator, School of Social Work, University of Nevada, Las Vegas, USA. 18 Associate Professor, Department of Sociology, University of Massachusetts, Boston, USA. 19 Associate Professor, School of Law, Tongji University, Shanghai, China.

Introduction

The rewritten, updated, and extended fourth edition of The Politics of Adoption, with three entirely new chapters—on Romania, South Korea, and Russia—takes an analytical look at adoption. It does so, like its predecessors, by: • tracing the evolution of adoption law, policy, and practice across many centuries and societies to provide a record of the common pressures that have influenced the development of modern adoption in western nations; • contrasting this with a consideration of adoption custom and practice as shaped by the social values of indigenous people, allowing adoption to acquire culturespecific characteristics; • analyzing the content of adoption law and revealing its core constituent elements; • identifying and evaluating the changing balance between public and private interests in adoption law to discern trends with wider policy implications; • constructing and applying a template of its essential legal functions to permit analysis of adoption processes in England and Wales and other countries; • conducting a comparative evaluation of the law, policy, and practice of adoption in countries with different legal and cultural traditions; • assessing the development of intercountry adoption and considering the modern characteristics of this phenomenon; • examining recent international legislative and judicial developments to demonstrate the extent to which national adoption law, like the wider body of family law, is now becoming subject to certain key principles of international jurisprudence; and • drawing some tentative conclusions about trends in the law, policy, and practice of contemporary adoption, as culturally differentiated, considering their political significance and the implications for the future. Like its predecessors, this edition examines the law, practice, and policy of adoption in common law and civil law jurisdictions from the perspective of recent developments in the UK and contrasts this with the experience of countries with quite different cultural traditions. As before, it employs a template of legal functions to conduct an analysis of the adoption process—in relation to an extended list of 14 different countries—and in relation to adoption in the context of both Islamic and vii

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indigenous communities. The template is structured to allow specific functions and issues to be read across jurisdictions, thereby facilitating comparative analysis. This edition considers the impact of international developments on national law, practice, and policy by focusing on the principles generated by recent case law. In particular, it highlights the influence of ECtHR rulings and the phenomenon of intercountry adoption as largely regulated by the Hague Convention. Unlike its predecessors, it has a focus on the sharp decline in international adoption, the impact of surrogacy, and on the increasing risks of child trafficking. The twenty-three chapters of this edition divide into seven parts throughout which attention is drawn to an inescapable political dimension in the role played by adoption within and between nations. Part I ‘Adoption, Society and the Law: the Common Law Context’ consists of two chapters which examine the nature of adoption as it evolved in a common law cultural context. It looks to the experience of adoption in other societies, ancient, and contemporary, for insight into the causes and likely outcome of current trends in adoption in western societies. Chapter 1 ‘Adoption: Concept, Principles and Social Construct’ explores the concept of adoption, the underpinning principles, and its history as a social construct, enquiring as to how its use has been variously conditioned by the prevailing pressures on the family. Chapter 2 ‘The Changing Face of Adoption’ tracks modern changes to the role and function of adoption with a particular emphasis on the historical development of law, policy, and practice in England and Wales. Part II ‘Developing International Benchmarks for Modern Adoption Law,’ consisting of three chapters, is central to the book in the sense that it provides material for identifying and measuring the functions of the adoption process within a legal context. Chapter 3 ‘The Legal Functions of Adoption’ constructs a template of the functions typical of the statutory adoption process in most modern western societies, particularly the common law jurisdictions, for use in Parts III and IV. Chapter 4 ‘Adoption, the Conventions and the European Court of Human Rights’ considers the provisions of international conventions before examining the case law emerging from the ECtHR and assessing its significance for adoption practice. Chapter 5 ‘Intercountry Adoption and the Hague Convention’ concentrates on the phenomenon of intercountry adoption, its fading significance, and the regulating effect of the Hague Convention. This part culminates in a rough template, applied flexibly, to assist the comparative analysis of the contemporary role of adoption in the Part III jurisdictions. The template allows each chapter to consider in turn: • • • • •

the social, cultural context and the jurisdictional characteristics of adoption; the regulatory framework; the roles of determining bodies; the roles of other administrative agencies; the sequential stages of the adoption process and the nature and the weighting of different legal functions at each stage; • the threshold for entry, eligibility, and suitability of the parties, etc.; • the hearing, the governing legal criteria, and available orders;

Introduction

• • • •

ix

the threshold for exiting the process, the welfare principle, etc.; the legal effects of an adoption order; the outcomes of the process for the parties concerned; and post-adoption contact, services, and information disclosure.

Part III ‘Contemporary Law, Policy and Practice in a Common Law Context’ applies the template of legal functions to conduct an analysis and comparative evaluation of the adoption experience in major common law nations. Chapters 6–11 examine the adoption process in England and Wales, Ireland, the USA, Canada, Australia, and New Zealand, respectively. These countries are leading representatives of the common law tradition but perform this function in a variable fashion. They have been chosen for comparative analysis because of their stature as common law jurisdictions and because recent or current engagement in adoption law reform reveals contrasting national approaches to much the same social pressures. Part IV ‘Contemporary Law, Policy and Practice in a European Civil Law Context’ again applies the template of legal functions, this time to countries from the civil law tradition, with a view to contrasting their adoption experience with that of the common law nations. Chapters 12–14, together with a new Chap. 15, examine the adoption process in Sweden, France, Germany, and Romania, respectively. Part V ‘Contemporary Law, Policy and Practice in Asia’ continues the above approach but does so in relation to countries which offer further opportunities for appreciating the singular effects of culture on law, policy, and practice. Chapter 16 considers ‘The Adoption Process in an Islamic Context,’ identifying and examining its hallmark characteristics as evidenced by the laws of different Islamic nations. A new Chap. 17 explores adoption in South Korea, while Chaps. 18 and 19 focus on adoption in Japan and China, respectively, analyzing the curious blend of functions it fulfills in those societies. A new Chap. 20 examines adoption in Russia. Part VI ‘Contemporary Law, Policy and Practice in an Indigenous Peoples Context’ explores the relevance of the legal function template when applied to adoption as experienced in ‘closed’ and less sophisticated communities. Chapter 21, ‘Indigenous Communities and Adoption,’ presents a study of the custom and rules governing adoption practice among the indigenous people of Australia, the Maori of New Zealand, the Inuit of Canada, and a new section on the Native Americans/Indians of the USA. This offers a challenging perspective on adoption law, policy, and practice as experienced for centuries within ancient cultures and an opportunity to reflect on the merits and deficits of the much more sophisticated and highly regulated approach developed in modern western nations. Finally, Part VII, ‘The Influence of Politics,’ in two chapters, Chap. 22 ‘Politics and a Regulatory Regime for Adoption’ and Chap. 23 ‘Politics and the Contemporary Social Role of Adoption’ considers current trends and issues in the relationship

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between politics and adoption. The ‘Conclusion’ closes the book—an odyssey undertaken during the coronavirus lockdown—with some reflections on the implications for the future of adoption that may arise from emerging patterns of change. White Park Bay, UK Autumn 2020

Kerry O’Halloran

Contents

Part I 1

Adoption, Society and the Law: The Common Law Context

Adoption: Concepts, Principles and Social Construct . . . . . . . . . . . . 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Definitional Matters and Related Concepts . . . . . . . . . . . . . . . . . 1.2.1 Legal Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.2 Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Social Construct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Adoption and the Inheritance Motive . . . . . . . . . . . . . 1.3.2 Adoption and the Kinship Motive . . . . . . . . . . . . . . . . 1.3.3 Adoption and the Allegiance Motive . . . . . . . . . . . . . . 1.3.4 Adoption and the ‘Extra Pair of Hands’ Motive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.5 Adoption and the Welfare Motive . . . . . . . . . . . . . . . . 1.3.6 Adoption and the Childless Couple Motive . . . . . . . . 1.3.7 Adoption and the Social Conformity Motive . . . . . . . 1.3.8 Adoption and the Right to an Identity Motive . . . . . . 1.4 Adoption in England: Historical Context . . . . . . . . . . . . . . . . . . . 1.4.1 The Common Law: Parental Rights and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.2 The Poor Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.3 Pressures for Change; End of the Nineteenth Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5 Adoption Legislation: Evolving Principles and Policy . . . . . . . 1.5.1 The Adoption Act 1926 . . . . . . . . . . . . . . . . . . . . . . . . 1.5.2 The Adoption of Children (Regulation) Act 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5.3 The Adoption Act 1949 . . . . . . . . . . . . . . . . . . . . . . . . 1.5.4 The Children Act 1975 . . . . . . . . . . . . . . . . . . . . . . . . .

3 3 3 4 4 6 7 7 8 8 9 10 10 11 11 12 15 17 19 19 20 21 21

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1.5.5 The Adoption Act 1976 . . . . . . . . . . . . . . . . . . . . . . . . 1.5.6 The Children Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . 1.5.7 Adoption (Intercountry Aspects) Act 1999 . . . . . . . . 1.5.8 The Adoption and Children Act 2002 . . . . . . . . . . . . . Legal Context: Evolution of a Modern Statutory Process . . . . . 1.6.1 The ‘Contract’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6.2 The Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6.3 The Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.6.4 Contract or Gift Relationship . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 22 23 23 25 26 27 31 37 38

The Changing Face of Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Modern Adoption Trends in the United Kingdom . . . . . . . . . . . 2.2.1 From Traditional Model to Modern Variants . . . . . . . 2.2.2 Causes of Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.3 Consequences for the Adoption Process . . . . . . . . . . . 2.3 Family Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Trends in Annual Orders . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Adoption by Birth Parent and Spouse . . . . . . . . . . . . . 2.3.3 Adoption by Grandparent . . . . . . . . . . . . . . . . . . . . . . . 2.3.4 Other Relative Adoptions . . . . . . . . . . . . . . . . . . . . . . . 2.3.5 The Welfare Principle, the Blood Link and Family Adoptions . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Agency Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Trends in Annual Orders . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Voluntary Society Adoptions . . . . . . . . . . . . . . . . . . . . 2.4.3 Child Care Adoptions . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.4 The Welfare Principle and Agency Adoptions . . . . . . 2.5 Intercountry Adoptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.1 Trends in Annual Orders . . . . . . . . . . . . . . . . . . . . . . . . 2.5.2 Transracial Adoptions . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5.3 The Welfare Principle and Intercountry Adoptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 A Coherent Legal Model for Adoption Practice . . . . . . . . . . . . . 2.6.1 Classification of Adoption by Type . . . . . . . . . . . . . . . 2.6.2 Social Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.3 Legal Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

41 41 42 42 49 54 59 59 60 61 61

1.6

1.7 2

Part II 3

62 64 64 65 65 72 73 73 74 74 76 76 77 77 78

Developing International Benchmarks for Modern Adoption Law

The Legal Functions of Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . .

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3.2.1 3.2.2

3.3

3.4

3.5

3.6

3.7 3.8

3.9

3.10 3.11

3.12

The Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . . Role of the Judiciary or Other Determining Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Role of Administrative Agencies . . . . . . . . . . . . . . . . . Thresholds for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 3.5.1 Placement Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . The Hearing and Issue of Order/s . . . . . . . . . . . . . . . . . . . . . . . . . 3.6.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 3.6.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . 3.6.3 The Orders Available . . . . . . . . . . . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 3.7.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 3.8.1 Adoption Orders and Third Party Applicants . . . . . . . 3.8.2 Adoption Orders and First Party Applicants . . . . . . . 3.8.3 Adoption Orders and Relatives . . . . . . . . . . . . . . . . . . 3.8.4 Other Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 3.9.1 Effect on the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.9.2 Effect on the Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . 3.9.3 Effect on the Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 3.10.1 Child Care and Protection Adoptions . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.11.1 Information Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.11.2 Information Disclosure Duties . . . . . . . . . . . . . . . . . . . 3.11.3 Tracing and Re-unification Services . . . . . . . . . . . . . . Adoption Within Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12.1 Adoption in Its Traditional Family Law Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12.2 Adoption in the Context of Modern Public Law Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

82 84 84 85 86 87 88 90 90 91 91 92 92 93 93 93 93 94 95 95 96 96 97 97 97 98 98 98 99 99 100 101 101 101 102 102 103 104

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3.12.3

3.13 4

Adoption in the Context of Modern Private Law Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.12.4 Adoption and Contemporary Family Law Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Adoption, the Conventions and the European Court of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 International Bodies with a Brief for Adoption Policy . . . . . . . 4.2.1 The European Parliament . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 The Council of Europe . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3 The United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 International Courts, Regulatory Bodies Etc. . . . . . . . . . . . . . . . 4.3.1 The European Court of Justice (CJEU) . . . . . . . . . . . . 4.3.2 The European Court of Human Rights (ECtHR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.3 The Human Rights Committee (HRC) . . . . . . . . . . . . 4.3.4 Human Rights Commissions . . . . . . . . . . . . . . . . . . . . 4.3.5 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 International Treaties, Conventions and Protocols Etc. . . . . . . . 4.4.1 The European Convention on the Adoption of Children 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.2 Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography 2000 (Sex Trafficking Protocol) 2000 . . . . . . . . . . . . . 4.4.3 The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 . . . . . . . . . . . . . . . . . . 4.4.4 The United Nations Convention on the Rights of the Child 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4.5 The Hague Convention on Civil Aspects of International Child Abduction . . . . . . . . . . . . . . . . . 4.4.6 The International Covenant on Civil and Political Rights (ICCPR) . . . . . . . . . . . . . . . . . . . . 4.4.7 The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and Rulings of the ECtHR . . . . . . . . . . . . . . . . . 4.4.8 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986 . . . . . . . . . . . . . . . . . . . . . . . . 4.4.9 The European Convention on the Adoption of Children 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

104 105 107 109 109 110 110 110 112 113 114 114 115 115 116 116 116

117

117 118 122 122

123

152 153

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4.4.10

4.5 5

The Universal Declaration of Human Rights 1948 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Intercountry Adoption and the Hague Convention . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Full and Simple Adoptions . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Intercountry Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Overseas Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Needs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 The Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 The Law: Developments Leading to an International Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 The Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 The Universal Declaration of Human Rights 1948 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.3 The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.4 The Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoption 1965 . . . . . . . . . . . . . . . . . . . . . . 5.4.5 The European Convention on the Adoption of Children 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.6 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986 . . . . . . . . . . . . . . . . . . . . . . . . 5.4.7 The United Nations Convention on the Rights of the Child 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.8 The Hague Conference on Private International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Contemporary Intercountry Adoption: Policy and Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.1 A Controversial Policy . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Some Guiding Principles . . . . . . . . . . . . . . . . . . . . . . . 5.6 Contemporary Intercountry Adoption Law . . . . . . . . . . . . . . . . . 5.6.1 The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 . . . . . . . . . . . . . . . . . . 5.6.2 The Hague Convention: Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

154 155 157 157 158 158 159 161 163 164 167 171 171 171

172

172 172

173 174 176 178 178 181 185

186 191

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5.6.3 5.6.4 5.6.5

5.7

5.8

The Hague Convention: Procedures . . . . . . . . . . . . . . The Hague Convention: Outcomes . . . . . . . . . . . . . . . The Hague Convention Adoption Process: Legal Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.6 The Hague Convention: Limitations . . . . . . . . . . . . . . 5.6.7 Brussels II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.8 The Council of Europe . . . . . . . . . . . . . . . . . . . . . . . . . 5.6.9 The European Convention on the Adoption of Children (Revised) 2008 . . . . . . . . . . . . . . . . . . . . . 5.6.10 The United Nations Guidelines for the Alternative Care of Children 2009 . . . . . . . . . Contemporary Intercountry Adoption Practice . . . . . . . . . . . . . . 5.7.1 An Overview: The Trends . . . . . . . . . . . . . . . . . . . . . . . 5.7.2 Sending Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7.3 Receiving Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7.4 Some Issues in Contemporary Practice . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

192 193 194 195 196 196 197 198 199 199 203 204 205 213

Part III Contemporary Law, Policy and Practice in a Common Law Context 6

England and Wales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 The Social Context Giving Rise to Adoption . . . . . . . 6.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 6.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 6.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 6.3.2 Contemporary Adoption Related Legislation . . . . . . . 6.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 The Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 6.4.4 The Registrar General . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.5 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6.1 Wishes, Welfare and Safety of the Child . . . . . . . . . .

217 217 218 218 223 228 228 234 237 238 239 241 244 245 246 246 246 249 252 254 254

Contents

6.7

Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 6.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 6.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 6.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 6.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 6.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 6.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11.4 Revocation of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 6.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

255 256 262 263 264 265 267 267 271 272 273 275 277 278 279 279 279 280 280

Ireland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 The Social Context Giving Rise to Adoption . . . . . . . 7.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 7.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 7.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 7.3.2 Contemporary Adoption Legislation and Related Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 Length and Breadth of the Process . . . . . . . . . . . . . . . 7.4.2 Role of Adoption Agencies and Other Administrative Agencies . . . . . . . . . . . . . . . . . . . . . . . . 7.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 7.4.4 The Registrar General . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . .

289 289 290 291 297 304 305

6.8

6.9

6.10

6.11

6.12 6.13

6.14 7

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282 282 282 284 284 287

307 309 310 310 311 313 314 315

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7.5.1 7.5.2 7.5.3

7.6 7.7

7.8

7.9

7.10

7.11

7.12 7.13

7.14 8

The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Birth Parents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 7.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 7.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 7.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 7.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 7.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 7.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 7.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 7.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 The Social Context Giving Rise to Adoption . . . . . . . 8.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 8.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 8.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 8.3.2 Contemporary Adoption Related Legislation . . . . . . . 8.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.1 Length and Breadth of the Process . . . . . . . . . . . . . . . 8.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . .

315 316 318 321 322 322 324 324 325 325 328 328 329 330 330 331 332 332 333 334 335 336 336 336 337 338 340 340 343 345 345 346 346 352 360 361 365 371 372 372 373

Contents

8.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 8.4.4 Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thresholds for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 8.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 8.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 8.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 8.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 8.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 8.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 8.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 8.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

380 385 385 385 387 387 387 388 389 389 390 391 391 391 392 392 393 393 393 394 394

Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.1 The Social Context Giving Rise to Adoption . . . . . . . 9.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 9.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 9.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 9.3.2 Contemporary Adoption Related Legislation . . . . . . . 9.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

399 399 400 401 408 415 416 418 418

8.5

8.6 8.7

8.8

8.9

8.10

8.11

8.12 8.13

8.14 9

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376 376 377 377 378

394 395 395 396 396 397

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9.4

9.5

9.6 9.7

9.8

9.9

9.10

9.11

9.12 9.13

9.14

Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 9.4.1 Length and Breadth of the Process . . . . . . . . . . . . . . . 9.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 9.4.4 The Registrar General . . . . . . . . . . . . . . . . . . . . . . . . . . Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 9.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5.2 The Birth Parents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 9.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 9.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 9.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 9.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 9.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 9.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 9.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 9.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.13.4 Tracing and Re-unification . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10 Australia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.1 The Social Context Giving Rise to Adoption . . . . . . . 10.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . .

418 418 419 420 421 421 421 422 424 426 427 427 428 429 429 430 430 431 433 434 434 435 435 436 436 437 437 437 437 439 439 440 441 442 443 445 445 446 446 454

Contents

10.3

10.4

10.5

10.6 10.7

10.8

10.9

10.10

10.11

10.12 10.13

10.14

xxi

Overview of Adoption Law and Policy . . . . . . . . . . . . . . . . . . . . 10.3.1 Adoption Principles, Policy and Alternatives . . . . . . 10.3.2 Contemporary Adoption Related Legislation . . . . . . . 10.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.1 Length and Breadth of Process . . . . . . . . . . . . . . . . . . 10.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 10.4.4 Registrar General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 10.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.6.1 The Adoption Applications Committee . . . . . . . . . . . Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 10.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 10.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 10.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 10.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 10.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 10.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 10.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 10.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

461 461 466 467 468 469 469 470 470 470 470 471 472 475 475 476 476 477 477 478 478 479 479 480 481 481 483 484 484 486 486 486 487 487 488 488 489 490 491 492

xxii

Contents

11 New Zealand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2.1 The Social Context Giving Rise to Adoption . . . . . . . 11.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 11.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 11.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 11.3.2 Contemporary Adoption Related Legislation . . . . . . . 11.3.3 Other Relevant Legislation . . . . . . . . . . . . . . . . . . . . . . 11.3.4 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.1 Length and Breadth of Process . . . . . . . . . . . . . . . . . . 11.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 11.4.4 Registrar General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.6 Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7 Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 11.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.8 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.8.1 Removal of Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.9 The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.9.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 11.9.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . 11.10 Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 11.10.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 11.10.2 Representing the Child’s Welfare Interests . . . . . . . . . 11.11 The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 11.11.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.11.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.12 The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 11.12.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.12.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.12.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.12.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . 11.13 Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 11.13.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . 11.14 Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

495 495 496 496 503 507 507 510 513 513 514 515 515 516 516 517 517 518 519 522 523 523 524 525 525 525 526 527 528 529 530 530 531 531 531 532 532 533 533 533 534

Contents

11.14.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 11.14.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.14.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.14.4 Tracing and Re-unification Services . . . . . . . . . . . . . . 11.15 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xxiii

534 535 536 536 537

Part IV Contemporary Law, Policy and Practice in a European Civil Law Context 12 Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2.1 The Social Context Giving Rise to Adoption . . . . . . . 12.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 12.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 12.3.1 Adoption Principles, Policy and Alternatives . . . . . . 12.3.2 Adoption Alternatives: Long Term Fostering and Private Family Orders . . . . . . . . . . . . . . . . . . . . . . 12.3.3 Contemporary Adoption Related Legislation . . . . . . . 12.3.4 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 12.4.1 Length and Breadth of the Process . . . . . . . . . . . . . . . 12.4.2 Role of Adoption Agencies and Other Administrative Agencies . . . . . . . . . . . . . . . . . . . . . . . . 12.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 12.4.4 The Registrar General . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 12.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.6 Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.7 Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 12.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . 12.8 The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 12.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . 12.9 Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 12.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 12.9.2 Representing the Child’s Welfare Interests . . . . . . . . . 12.10 The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 12.11 The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 12.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

541 541 542 542 548 552 553 554 554 558 558 558 559 560 560 561 561 561 562 564 565 565 566 566 566 566 567 567 568 568 569 569

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Contents

12.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . 12.12 Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 12.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . 12.13 Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 12.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . 12.14 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

570 570 570 570 571

13 France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2.1 The Social Context Giving Rise to Adoption . . . . . . . 13.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 13.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 13.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 13.3.2 Contemporary Adoption Related Legislation . . . . . . . 13.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 13.4.1 Length and Breadth of Process . . . . . . . . . . . . . . . . . . 13.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 13.4.4 Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 13.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.6 Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.7 Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 13.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . 13.8 The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 13.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . 13.9 Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 13.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 13.9.2 Representing the Child’s Welfare Interests . . . . . . . . . 13.10 The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . .

575 575 576 577 583 586 587 588 591 591 592

571 571 571 572 572 572

592 594 595 595 595 597 599 602 603 603 604 604 605 605 606 606 607 607

Contents

xxv

13.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 13.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 13.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 13.13.2 Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

607 608 608 608 609 609 610 610 610

14 Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2.1 The Social Context Giving Rise to Adoption . . . . . . . 14.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 14.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 14.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 14.3.2 Contemporary Adoption Related Legislation . . . . . . . 14.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 14.4.1 Length and Breadth of the Process . . . . . . . . . . . . . . . 14.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 14.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 14.4.4 The Registrar General . . . . . . . . . . . . . . . . . . . . . . . . . . 14.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 14.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.5.2 The Birth Parents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.6 Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.7 Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 14.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . 14.8 The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 14.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . .

615 615 616 616 621 624 624 626 627 628 628

13.11

13.12 13.13

13.14

610 611 612 613 613 613

628 629 630 630 630 631 633 635 636 636 637 638 638 639

xxvi

Contents

14.9

Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 14.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 14.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 14.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 14.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 14.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 14.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

640 640 641 642 642 643 643 644 644 645 645 646 646

15 Romania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2.1 The Social Context Giving Rise to Adoption . . . . . . . 15.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 15.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 15.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 15.3.2 Contemporary Adoption Related Legislation . . . . . . . 15.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 15.4.1 Length and Breadth of Process . . . . . . . . . . . . . . . . . . 15.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 15.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 15.4.4 Registrar General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 15.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.6 Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.6.1 The Adoption Committee . . . . . . . . . . . . . . . . . . . . . . . 15.7 Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . .

651 651 652 652 659 662 663 665 668 668 668

14.10

14.11

14.12 14.13

14.14

646 647 647 648 648 649

669 670 670 670 671 672 673 674 674 674

Contents

xxvii

15.8

15.9

15.10

15.11

15.12 15.13

15.14 Part V

15.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 15.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 15.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 15.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 15.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 15.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 15.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 15.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

675 675 676 677 677 678 678 679 679 679 680 680 680 681 681 681 682 682 683 683 684 684 684 685

Contemporary Law, Policy and Practice in Asia

16 The Adoption Process in an Islamic Context . . . . . . . . . . . . . . . . . . . . 16.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.2.1 The Social Context Giving Rise to Adoption . . . . . . . 16.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 16.2.3 Emerging Characteristics of the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 16.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 16.3.2 Contemporary Adoption Related Legislation . . . . . . . 16.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 16.4.1 Length and Breadth of Process . . . . . . . . . . . . . . . . . . 16.4.2 Role of Adoption Agencies and Other Administrative Agencies . . . . . . . . . . . . . . . . . . . . . . . . 16.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . .

689 689 691 692 697 699 703 704 706 707 708 708 708 709

xxviii

16.5

16.6 16.7 16.8

16.9

16.10

16.11

16.12 16.13

16.14

Contents

Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 16.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 16.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 16.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 16.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 16.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 16.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 16.13.2 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17 South Korea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.2.1 The Social Context Giving Rise to Adoption . . . . . . . 17.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 17.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 17.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 17.3.2 Contemporary Adoption Related Legislation . . . . . . . 17.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 17.4.1 Length and Breadth of Process . . . . . . . . . . . . . . . . . . 17.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 17.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 17.4.4 Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

709 709 710 711 712 712 713 713 713 714 714 715 715 715 716 716 716 718 718 719 719 720 720 720 720 723 723 724 725 731 735 735 737 739 739 739 740 741 742

Contents

17.5

17.6 17.7

17.8

17.9

17.10

17.11

17.12 17.13

17.14

xxix

Threshold For Entering The Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 17.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.6.1 The Korean Welfare Service . . . . . . . . . . . . . . . . . . . . . Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 17.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 17.8.2 Overseas Adoptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.8.3 Where Consent Is Not Available . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 17.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 17.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 17.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 17.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 17.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 17.13.2 Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18 Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.2.1 The Social Context Giving Rise to Adoption . . . . . . . 18.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 18.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 18.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 18.3.2 Contemporary Adoption and Related Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

742 742 743 743 744 745 745 745 746 746 746 746 748 748 749 749 749 749 750 750 750 751 751 751 752 752 753 754 754 755 755 756 759 759 760 761 771 775 776 778

xxx

Contents

18.4

18.5

18.6 18.7

18.8

18.9

18.10

18.11

18.12 18.13

18.14

18.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 18.4.1 Length and Breadth of Process . . . . . . . . . . . . . . . . . . 18.4.2 Role of Adoption Agencies and Other Administrative Agencies . . . . . . . . . . . . . . . . . . . . . . . . 18.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 18.4.4 The Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Threshold For Entering The Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 18.5.1 The Adoptee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 18.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 18.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . 18.8.3 Application to the Family Court . . . . . . . . . . . . . . . . . Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 18.9.1 Welfare Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.9.2 Representing the Child’s Welfare Interests . . . . . . . . . The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 18.10.1 Adoption Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.10.3 No Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 18.11.1 The Child/Adoptee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 18.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

782 783 783 784 786 787 787 787 788 790 791 792 792 794 794 795 797 797 798 799 800 801 801 802 802 802 803 803 803 804 805 805 805 805 807 808 809

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19 China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.2.1 The Social Context Giving Rise to Adoption . . . . . . . 19.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 19.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 19.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 19.3.2 Contemporary Adoption Related Legislation . . . . . . . 19.3.3 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 19.4.1 Length and Breadth of Process . . . . . . . . . . . . . . . . . . 19.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 19.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 19.4.4 The Registration Office . . . . . . . . . . . . . . . . . . . . . . . . . 19.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 19.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.6 Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.7 Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 19.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . 19.8 The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 19.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . 19.9 Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 19.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 19.9.2 Representing the Child’s Welfare Interests . . . . . . . . . 19.10 The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 19.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.10.2 Alternative Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.11 The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 19.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . 19.12 Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 19.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . 19.13 Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 19.13.2 Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

811 811 812 813 821 828 829 831 832 832 833 833 834 835 836 836 837 837 840 841 841 842 843 843 843 843 844 845 845 845 846 846 847 847 847 848 849 849 850 850 850

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19.13.3 Conditional Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19.13.4 Tracing and Re-unification Services . . . . . . . . . . . . . . 19.14 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

851 851 851

20 Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.2 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.2.1 The Social Context Giving Rise to Adoption . . . . . . . 20.2.2 Resulting Trends in Types of Adoption . . . . . . . . . . . 20.3 Overview of Principles, Policy and Law . . . . . . . . . . . . . . . . . . . 20.3.1 Adoption Principles and Policy . . . . . . . . . . . . . . . . . . 20.3.2 Constitutional Framework Relating to Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.3.3 Contemporary Adoption Related Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.3.4 Contemporary Adoption Related International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.4 Regulating the Adoption Process . . . . . . . . . . . . . . . . . . . . . . . . . 20.4.1 Length and Breadth of Process . . . . . . . . . . . . . . . . . . 20.4.2 Role of Adoption Agencies and Other Administrative Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . 20.4.3 Role of the Determining Body . . . . . . . . . . . . . . . . . . . 20.4.4 Civil Registry Office . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . 20.5.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.5.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.5.3 The Adopters: Eligibility and Suitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.6 Pre-placement Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.6.1 Counselling Services . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.7 Placement Rights and Responsibilities . . . . . . . . . . . . . . . . . . . . 20.7.1 Authority to Place . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.7.2 Placement Supervision . . . . . . . . . . . . . . . . . . . . . . . . . 20.8 The Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.8.1 Where Consent Is Available . . . . . . . . . . . . . . . . . . . . . 20.8.2 Where Consent Is Not Available . . . . . . . . . . . . . . . . . 20.9 Thresholds for Exiting the Adoption Process . . . . . . . . . . . . . . . 20.9.1 The Welfare Interests of the Child . . . . . . . . . . . . . . . . 20.9.2 Representing the Child’s Welfare Interests . . . . . . . . . 20.10 The Outcome of the Adoption Process . . . . . . . . . . . . . . . . . . . . 20.10.1 Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.11 The Effect of an Adoption Order . . . . . . . . . . . . . . . . . . . . . . . . . 20.11.1 The Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.11.2 The Birth Parent/s . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

853 853 854 854 861 864 865 867 869 871 872 872 873 874 875 875 875 875 878 880 881 881 881 881 882 883 883 884 884 885 885 885 886 887 887

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20.11.3 The Adopters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.11.4 Dissolution of an Adoption Order . . . . . . . . . . . . . . . . 20.12 Post-adoption Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . 20.12.1 Adoption Support Services . . . . . . . . . . . . . . . . . . . . . . 20.13 Information Disclosure, Tracing and Re-unification Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.13.1 Information Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 20.13.2 Adoption Registers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20.13.3 Tracing and Re-unification Services . . . . . . . . . . . . . . 20.14 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part VI

890 890 891 891 892

Contemporary Law, Policy and Practice in an Indigenous Peoples Context

21 Indigenous Communities and Adoption . . . . . . . . . . . . . . . . . . . . . . . . 21.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.2 Indigenous People and International Law . . . . . . . . . . . . . . . . . . 21.2.1 Need for International Protection . . . . . . . . . . . . . . . . 21.2.2 Provisions with Generic Application . . . . . . . . . . . . . 21.2.3 Provisions Specific to Indigenous People . . . . . . . . . . 21.3 Canada: The First Nations; The Inuit . . . . . . . . . . . . . . . . . . . . . . 21.3.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.3.2 Contemporary Adoption Law and the Inuit . . . . . . . . 21.4 Australia: The Indigenous or Aboriginal People . . . . . . . . . . . . 21.4.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.4.2 Adoption as an Imposed System . . . . . . . . . . . . . . . . . 21.4.3 Contemporary Adoption Law and the Aboriginal People . . . . . . . . . . . . . . . . . . . . . . 21.5 New Zealand: The M¯aori . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.5.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.5.2 Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.5.3 Contemporary Adoption Law and the M¯aori . . . . . . . 21.6 The US: Native Americans/Indians . . . . . . . . . . . . . . . . . . . . . . . 21.6.1 Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21.6.2 Contemporary Adoption Law and the AI/AN . . . . . . 21.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part VII

888 888 889 889

895 895 896 896 898 900 902 902 905 914 914 915 917 925 925 927 929 934 935 937 942

The Influence of Politics

22 Politics and a Regulatory Regime for Adoption . . . . . . . . . . . . . . . . . . 22.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.2 Adoption and a Regulatory Regime . . . . . . . . . . . . . . . . . . . . . . . 22.2.1 A Regulatory Regime . . . . . . . . . . . . . . . . . . . . . . . . . . 22.2.2 The Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.2.3 Rights of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.2.4 The Order Made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

947 947 948 948 950 953 956

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22.3

22.4

22.5

22.6

Adoption as a Public Social Service . . . . . . . . . . . . . . . . . . . . . . . 22.3.1 Adoption and Family Planning . . . . . . . . . . . . . . . . . . 22.3.2 The Unadopted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.3.3 Post-adoption Support and Services . . . . . . . . . . . . . . 22.3.4 Post-adoption Information Rights . . . . . . . . . . . . . . . . Adoption and Human Rights: Regulating for Structural Faults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22.4.1 International Conventions . . . . . . . . . . . . . . . . . . . . . . . 22.4.2 Human Rights and Domestic Adoption . . . . . . . . . . . 22.4.3 Human Rights and Intercountry Adoption . . . . . . . . . 22.4.4 Equality Issues and Adoption . . . . . . . . . . . . . . . . . . . . Adoption in a Family Law Context . . . . . . . . . . . . . . . . . . . . . . . 22.5.1 Key Family Law Principles . . . . . . . . . . . . . . . . . . . . . 22.5.2 Convention Law, Family Law and Adoption: Balancing Public and Private Interests . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

958 958 960 962 964 965 965 966 967 969 970 970 973 975

23 Politics and a Contemporary Social Role for Adoption . . . . . . . . . . . 977 23.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977 23.2 Politics and the Social Role of Adoption . . . . . . . . . . . . . . . . . . . 977 23.2.1 Historical Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . 978 23.2.2 Adoption and Religion . . . . . . . . . . . . . . . . . . . . . . . . . 979 23.2.3 Contemporary Perspectives . . . . . . . . . . . . . . . . . . . . . 982 23.3 Fixing Re-configured Families: Step, Kinship and Same Sex Adoptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 985 23.3.1 Step-Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986 23.3.2 Kinship Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987 23.3.3 Same Sex Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . 987 23.4 Child Care Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 988 23.4.1 State Policy for Non-consensual Adoption . . . . . . . . 988 23.4.2 State Policy Against Non-consensual Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 989 23.4.3 Correlation Between Children in Care and ICA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990 23.5 Intercountry Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990 23.5.1 Beginnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991 23.5.2 Disaster Relief Response . . . . . . . . . . . . . . . . . . . . . . . 991 23.5.3 Intercountry Adoption Policy Shaped by Domestic Pressures . . . . . . . . . . . . . . . . . . . . . . . . . 992 23.5.4 Intercountry Adoption and Surrogacy . . . . . . . . . . . . . 995 23.5.5 International Commercial Surrogacy and Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 998 23.6 Adoption: An Increasingly Uncertain Social Construct . . . . . . . 1001 23.6.1 Adoption and Cultural Context . . . . . . . . . . . . . . . . . . 1001 23.6.2 The Changing Social Role of Adoption . . . . . . . . . . . 1003

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23.7

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23.6.3 Broadening the Right of Access to Adoption . . . . . . . 23.6.4 Broadening the Outcomes of Adoption . . . . . . . . . . . 23.6.5 Broadening the Definition of Adoption . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1004 1008 1008 1011

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019

Part I

Adoption, Society and the Law: The Common Law Context

This part lays out and explains the basic building blocks of adoption law and practice. It deals with the concepts and precepts, the legal principles, definitions and processes, the organisational forms and types of adoption. It considers values and taboos, the ‘blood link’, the ‘gift relationship’ and boundaries. It examines the purposes served by adoption: dealing with inheritance, kinship, welfare, stepparents and childless couples. It distinguishes adoption from other legally authorised forms of alternative parenting. It traces the genesis of adoption in the law, policy and practice of England and Wales and as subsequently transplanted throughout the common law nations. Essentially, Part I prepares the ground for a consideration of matters that will be examined in depth and related to different jurisdictional contexts in subsequent chapters.

Chapter 1

Adoption: Concepts, Principles and Social Construct

1.1 Introduction Adoption is a complex social phenomenon, intimately knitted into its family law framework and shaped by pressures affecting the family in its local social context. It is a mirror reflecting the changes in our family life and the efforts of family law to address those changes. This has caused it to be variously defined; in different societies, in the same society at different times and across a range of contemporary societies. It continues to be re-defined in the United Kingdom. This chapter examines adoption from a developmental perspective drawing largely from law, policy and practice as experienced in England and Wales. It begins with a consideration of definitional matters, the concept and its culture specific determinants. An historical overview then provides some examples to illustrate the different social roles adoption has played in a variety of cultural contexts and to reveal the extent to which its development has been driven primarily by the varying pattern of adopters needs. This leads to a broad consideration of adoption in its English common law context and its gradual statutory transformation into statutory proceedings. The chapter concludes with an introduction to the main elements that emerged to structure statutory proceedings and continue to do so; the ‘contract’ the parties and the governing principles.

1.2 Definitional Matters and Related Concepts It is not possible to frame a definitive statement that captures the meaning of adoption for all societies. The best that can be done is to settle for a legal definition of its core functions within a specific social context.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_1

3

4

1 Adoption: Concepts, Principles and Social Construct

1.2.1 Legal Definition In legal terms, adoption has been defined as1 : …a legal method of creating between the child and one who is not the natural parent of the child an artificial family relationship analogous to that of parent and child…

or, more bluntly2 : …providing homes for children who need them is its primary purpose.

Adoption, however, existed long before it acquired its present form as a legal proceeding. It neither has been nor is confined to children: many countries permit the adoption of adults. It need not necessarily fully create a parent/child legal relationship: a legal distinction between ‘full’ and ‘simple’ adoption is maintained in several jurisdictions. Any such attempts to reduce it to a stand-alone legal function fail to do justice to its complexity. It can only be properly understood when viewed in the particular social context in which its legal functions are exercised. It must then also be considered against the background of its related legal framework, including, for example: the alternative options available; the consensual or coercive nature of proceedings; and the outcome for all parties involved. In the U.K. adoption now exists only as a legal process, delineated and regulated by statute, culminating in proceedings that are judicially determined and which are concerned exclusively with the future upbringing of children. Legislation addresses the rights and obligations of the parties concerned, defines the roles of those mediating bodies with roles in the process, sets out the grounds for making an adoption order and states its effect. Statute law also provides the links between adoption and other legal processes; notably child care but also matrimonial proceedings.

1.2.2 Concepts Insofar as it is amenable to a conceptual interpretation, adoption addresses the act of the adopter. It is the voluntary acceptance of the responsibility to protect, nurture and promote the development of the child of another—at least until that child attains adulthood—that lies at the heart of adoption. It is an act which brings that child into the adopter’s family with all the implications for sharing in the family name, home, assets and kinship relationships which are thereby entailed. As a corollary, the same act also implies a severance by the adopter of those same links between the child and his or her family of origin. But it remains an artificial and fundamentally a legal relationship. It fails to wholly displace all incidences of the child’s pre-adoption 1 See,

Tomlin Committee report (Cmnd 2401) 1925. Houghton Committee, Report of the Departmental Committee on the Adoption of Children, (Cmnd 5107), London, HMSO, 1972.

2 See,

1.2 Definitional Matters and Related Concepts

5

legal relationships and fails also to legally subsume him or her fully into the adopter’s family. It has attracted some contentious conceptual interpretations. • The ‘gift’ relationship.3 Adoption cannot be properly viewed as the ultimate incidence of a gift relationship though the literature testifies to the attempts of some to do so (see, further, below). • The ‘blood link’ relationship. This essentially grounds a presumption that care provided by a child’s parent or relative is in the best interests of that child. It can be detected in the prohibited degrees of relationship rule, in the resistance to child care adoptions and in the passive acquiescence given to family adoptions. It underpins traditional rules of inheritance and is also evident in the inference of ‘bad blood’ that has so often been applied to unfairly discriminate against adopted persons. The act of the adopter essentially puts in place an alternative legal relationship alongside birth relationships and leaves to time and providence the possibility that a mutual bonding relationship will achieve the attachment between adopter and child necessary to fulfil the needs of both for a family.4 As a social construct ‘adoption’ acquired a common currency definition throughout most modern western societies. It had been shaped to have a specific meaning: imprinted with considerable consistency by the legislatures of common law nations on a range of different cultural traditions, in order to address much the same social problems; and varying accordingly to fit with the norms of other cultures such as those of Japan, Islam and of indigenous communities. In acquiring its identity, adoption became differentiated from alternative child-care arrangements within such societies (e.g. long-term foster care, in loco parentis care etc.) and from comparable arrangements in other societies.

1.2.2.1

‘Simple’ Adoption

This form of adoption is still common in many African nations and elsewhere, including France where it is often used in a step-parent context. While it vests day-to-day parenting responsibilities in the adopter, it retains the more fundamental legal aspects of the relationship between birth parents and the adoptee (see, further, Sect. 5.2.1).

3 See,

for example, Lowe, N., ‘The Changing Face of Adoption—The Gift/Donation Model versus the Contract/Services Model’, Child and Family Law Quarterly, 371, 1997. 4 See, for example, Bowlby, J., Attachment, Penguin, London, 1969.

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1.2.2.2

Kafala

In Islamic countries, under Shari’a law, adoption is prohibited but the practice of kafala, a form of long-term foster care, has long been used (see, further, Sect. 5.2.1.1). Duncan explains the difference between adoption and kafala as follows5 : …the latter does not have the effect of integrating the child into the new family. The child remains in name a member of the birth family and there are no inheritance rights in respect of the new family. However, kafala may if necessary involve delegation of guardianship in respect of the person and property of the child and in an intercountry situation it may result in a change in the child’s nationality.

1.2.2.3

Full Adoption

Initially, in the U.K. and similar western societies, the social construct of adoption broadly conformed to a single generic type. This was—‘full’ or plenary adoption— the third party adoption of a healthy white Caucasian baby by a married couple, unrelated and usually unknown to the birth mother, who were permanently and irrevocably vested with full parental rights and responsibilities in respect of her child. It involved three sets of needs: those of an unmarried mother wishing to voluntarily relinquish the child for whom she was unable or unwilling provide adequate care; the needs of her child for security of legal status and welfare; and the desire of a married childless couple for a child they could literally afford to call their own. It is unlikely that any society has ever been able to quite achieve the reciprocal satisfaction of needs represented by such an equation and it is certain that they will be less able to do so in the foreseeable future. That single generic type faded as adoption evolved and permutated to accommodate changed needs. These included providing for orphaned or abandoned children within the jurisdiction and internationally, responding to the plight of childless heterosexual and same gender couples, reducing the number of children being maintained in public child care facilities and enabling parents to secure the legal cohesion of their re-formed families. Consequently, all modern western societies are now in the process of re-adjusting their use of adoption.

1.3 Social Construct The following brief historical overview of adoption as a social construct reveals that its usefulness, at various times and places, has rested in particular on a capacity to meet the needs of adopters and their range of quite different motives. Adoption, its social role and legal functions, has always been susceptible to being shaped by the needs of adopters. 5 See, Duncan, W. , ‘Children’s Rights, Cultural Diversity and Private International Law’, in Douglas,

G. and Sebba, L. (eds), Children’s Rights and Traditional Values, Aldershot, Ashgate, 1998 at p. 32.

1.3 Social Construct

7

1.3.1 Adoption and the Inheritance Motive Adoption has its legal origins in the law relating to the ownership and inheritance of property.6 The concern of those with land but without children to legally acquire heirs and so consolidate and perpetuate their family’s property rights for successive generations, is one which is common to all settled, organised societies where rules for the devolving of estates in property contributes to social cohesion. In China, India and Africa adoption has long served this purpose,7 but it was the tradition established over the several hundreds of years and throughout the extent of the Roman Empire which laid the European foundations for this social role. A Roman could adopt only if he did not have an heir, was aged at least 60 and the adopted was no longer a minor.8 This tradition was revived in France by the Civil Code of 1902 which required that the adopter be at least 50 and without legal heirs, while the adopted must have reached his majority.9 Heir adoption, therefore, owed its origins to an “inheritance” motive and all other factors being favourable found early acknowledgment in law.

1.3.2 Adoption and the Kinship Motive Closely linked to this property based social role is the practice of kinship adoption.10 For some agricultural societies, such as those of India and China, these were synonymous as a relative was the preferred adoptee. All the ethnic groups peripheral to American society—Negroes, Indians, Eskimos and Polynesians—have long practiced kinship fostering and adoption as a means of strengthening the extended family, and their society as a whole, by weakening the exclusive bond between parents and children.11 Though, curiously, the present form of kinship adoptions in the U.K., the so-called ‘step-adoptions’ are for quite the opposite reasons. Elsewhere this occurs as an open transaction between two sets of parents. To the Hindus of India adoption outside the caste is prohibited.12 For the Polynesians the adoption of anyone other than a relative is an insult to the extended family.13 Kinship adoptions seem to

6 See,

for example, Benet, M. K., The Character of Adoption, Johnathan Cape, London, 1976. at p. 22. Also, see Goody, E., Contexts of Kinship, Cambridge University Press, London,

7 Ibid.,

1973. cit. As Benet explains: “Full adoption, adrogatio, was only possible for a person who was himself sui iuris—that is, a member of no family but his own. A minor could not be adrogated because a minor sui iuris had tutores or guardians …The adopter “must be 60 or from some cause unlikely to have children” (p. 30). 9 Ibid. at p. 77. 10 Ibid. at p. 14. 11 Ibid. at p. 17. 12 Ibid. at p. 35. 13 Ibid. at pp. 35 and 48–50. 8 Op

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rest on an ‘exchange’ motive, whereby the donor nuclear family acquires a stronger affiliation with the wider social group, in exchange for relinquishing parental rights.

1.3.3 Adoption and the Allegiance Motive The purpose of such adoptions is sometimes to secure social advancement for the adopted.14 This is not unlike the Roman practice of non-kinship adoption for the purpose of allying the fortunes of two families. A Roman patrician, or even an emperor, would adopt, for example, a successful general as his successor.15 In Japan, also, the adoption of non-relatives was traditionally seen as a means of allying with the fortunes of the ruling family.16 In Ireland under the Brehon Laws much the same ends were achieved by reciprocal placements of children between clans as a demonstration of mutual allegiance.17 This bears a strong resemblance to the feudal practice of paying fealty and showing allegiance to a lord by placing a child for court service. Again, in sixteenth and seventeenth century England, it was quite common for the more wealthy households to take in the sons and daughters of poorer parents on service contracts, for example as pages or servants.18 More recently—in countries such as Germany, Spain, Chile and Argentina—it has been deliberately utilised by conquering armed forces to reward their supporters while further defenestrating the enemy by forcibly transferring children from the latter to the former.19 Non-kinship adoption, in this form, would seem to be based on a fostering ‘allegiance’ or on a ‘service’ motive.

1.3.4 Adoption and the ‘Extra Pair of Hands’ Motive At a very basic level, adoption has clearly often been valued as a means whereby those with more work than they can manage could enlarge their family and thereby strengthen their coping capacity. In societies where the functioning of the whole system was accepted as being of greater importance than that of each individual 14 As Gibbons explains, at the time of the Roman Empire a returning successful adventurer might seek to ingratiate himself “by the custom of adopting the name of their patron” and thereby hope to secure his position in society. See, The Decline and Fall of the Roman Empire, Harrap, London 1949 at p. 131. 15 Ibid. at p. 30. Marcus Aurelius being a good example. 16 Ibid. 17 See, Gilligan, R., Irish Child Care Services: Policy, Practice and Provision, Institute of Public Administration, Dublin, 1991. 18 See, Middleton, N., When Family Failed, Victor Gollancz, London, 1971. 19 See, Druliolle, V., ‘The Struggle for Recognition of the Stolen Children and the Politics of Victimhood in Spain’, in Druliolle, V. and Brett, R. (eds.), The Politics of Victimhood in Post-conflict Societies: Comparative and Analytical Perspectives, London, Palgrave Macmillan, 2018.

1.3 Social Construct

9

family unit, then the modern problem of unwanted children did not seem to arise. An extra pair of hands was always useful in societies tied to the land. But when the economy of a society changed from being land based to industrial, wage earning and mobile, then the nuclear family unit became more independent and children often simply represented more mouths to feed. When that process occurred in the UK during the latter half of the nineteenth and the first half of the twentieth centuries, it resulted in the transporting of many thousands, perhaps hundreds of thousands, of children to the British colonies; exported by philanthropic societies from the U.K. and Ireland to the United States, Australia and Canada20 and elsewhere. There, it was felt, they would have opportunities to lead useful lives21 ; it was also candidly admitted that this would ease the burden on English ratepayers. Reputable English child care organizations such as Barnardos, were involved in arranging the safe passage of children who were orphaned, homeless or otherwise uncared for to overseas adopters only too happy to welcome into their family an extra pair of hands to share the work on farms etc. This form of adoption, then treated as not unlike the practice of being indentured into a trade, but often in practice resulting in exploitation, would today be viewed as a form of ‘trafficking’.

1.3.5 Adoption and the Welfare Motive Distinctly different from such historical forms of adoption is the relatively modern practice of non-kinship adoption of abandoned, neglected or abused children ‘rescued’ for philanthropic motives. By the end of the nineteenth century, following effective campaigning by voluntary organisations concerned for the welfare of children, there had been a general change in the attitude towards workhouses as suitable environments for children. The better survival rates of children who were boardedout compared to those consigned to the workhouse and the consequent saving in public expenditure provided convincing evidence that the welfare of children was best assured by transferring responsibility to those who wanted to adopt a child to complete their family life. As Cretney has pointed out22 : Adoption’ first appeared in the statute book in the context of the Poor Law: the Poor Law Act 1899 provided that the Guardians could in certain circumstances assume by resolution all the parents rights and powers until the child reached the age of eighteen; and the Guardians were then empowered to arrange for the child to be ‘adopted’.

The legacy of non-kinship adoption from the Poor Law period established the principle that the state as ultimate guardian should assume responsibility for those children whose parents are unavailable, unable, or unwilling to care for them and then 20 See,

Bean and Melville, Lost Children of the Empire, Unwin Hyman, London, 1989. for example, Tizard, B., Adoption: A Second Chance, Open Books, London, 1977. 22 See, Cretney, S., ‘Adoption—Contract to Status?’ in Law, Law Reform and the Family, Clarendon Press, Oxford, 1998, at p. 186. 21 See,

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could legally arrange for that responsibility to be vested—with parental consent— in approved adopters. This ‘child rescue’ policy was one that extended in time to children suffering domestic parental abuse and then to those suffering parental abandonment in other countries. The extent to which such children could or should be admitted to the adoption process—in the absence of parental consent—has become a highly contentious political issue for contemporary adoption law and practice (see, further, below).

1.3.6 Adoption and the Childless Couple Motive Adoption has probably always been seen as a provident answer to the reciprocal needs of a society, burdened with the costs of maintaining children for whom the adequate care of a birth parent was unavailable, and those of settled, married but childless couples able and willing to provide care for such a child; an equation dramatically affected by the introduction of readily available means of birth control. As the traditional source for the supply of unwanted babies dried up, so the childless couples of western societies were induced to ‘widen the market’ by looking towards the underdeveloped countries of Asia, South America and Eastern Europe for alternative sources of supply. At the same time public authorities in many western societies are now redressing the imbalance in this equation by introducing legislative measures which divert the interest of potential adopters from the few non-marital babies to the needs of the many disadvantaged older, disabled, or children in pubic care in respect of whom full parental rights have been obtained.

1.3.7 Adoption and the Social Conformity Motive A variant of the motive prompting childless couples to conform to the social norm of the nuclear family unit is apparent in those wishing to secure the boundaries of their re-ordered family and is also perhaps present on a larger scale in societies where the protection of religious or racial homogeneity is considered important. In the first instance, adoption has come to be used ubiquitously in many nations as the preferred means for step-parents and their spouse to legally ensure that their new set of family relationships conform to the social norm of the standard marital family unit and that inconvenient loose ends are neatly tidied up. For much the same reason, it is also the preferred option for many foster parents. The second occurs in socially divided countries where personal, family and ethnic identity is labelled as belonging or not. These divisions may be harmonious, generating a vibrant cultural diversity or, as in South Africa, racial divisions may instead lead to social polarisation. Adoption may then form part of a deliberate strategy by a dominant group to force the assimilation of others—as with the indigenous communities of the US, Canada, Australia and New Zealand (see, further, Chap. 21)—in order to impose and protect a particular social

1.3 Social Construct

11

model. This is mirrored in religiously divided jurisdictions like Northern Ireland. In such settings, there may well be pressure on birth parents with a child conceived as a result of a relationship with someone of the other religion/race to relinquish that child for adoption outside their social group: recourse to adoption as a safety valve, to relieve pressure on individuals and restoring conformity for family and society, is most often necessitated when the child is of mixed race. The safety valve mechanism may also function, if more crudely, as the means whereby a birth parent, family or society can gain a sense of equilibrium by shedding care costs it cannot afford.

1.3.8 Adoption and the Right to an Identity Motive Finally, from the late twentieth century onwards there would seem to have been something of a fundamental shift in the meaning of adoption as a social construct. Arguably, adoption in the developed western nations is in the process of being legally redefined. It was always about children—nurture, attachments, sense of belonging etc.—but adoption is now becoming less about intervention and process and more about outcomes. In the past adoption has, at varying times, been weighted in favour of one of the three parties—relieving birth parents of responsibility, child rescue, endowing adopters with parental status etc.—whatever was necessary or expedient to provide all concerned with a ‘clean slate’. This extended to similarly relieving the state of its role and costs as ‘custodian of last resort’. Only comparatively recently, as a human rights ethos permeated family law in general as it in other areas of law, has the focus switched to an unequivocal commitment to supporting the adoptee. Instead of their needs being subjected to a primary concern for the legal rights and responsibilities of the other parties, the latter must now accommodate the independent right of an adoptee to retain and develop their own individual authentic identity. The traditional wish to deny origins will—mostly—no longer be allowed to prevail. Birth parents and adopters—as with all other agencies engaged in the process—are to be seen as custodians of the information and resources necessary to empower an adoptee to achieve a secure and independent identity, with a self-affirming cultural affinity, into and throughout adulthood. This re-design of the traditional social construct is becoming steadily more evident in both domestic and international adoption (see, further, Sect. 23.6.1.2).

1.4 Adoption in England: Historical Context Adoption in England and Wales has a much longer history as a common law process than as a statutory procedure. That history is one inextricably bound up with the status of the married father and the class system in English society. To fully understand why adoption in this jurisdiction developed the characteristics it did, why it developed

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some more quickly than others, and why the whole process of its transmutation into statutory proceedings took as long as it did, it is necessary to remember that at the turn of the nineteenth century England was still a very hierarchically structured and patriarchal society. In this context, these Victorian characteristics were considerably magnified by the gender specific nature of legislators and judiciary; ironically, the female contribution to defining the parameters of the adoption process was at best marginal.

1.4.1 The Common Law: Parental Rights and Duties The common law respect for paternal authority was itself a legacy from Roman times founded on the doctrine of patria potestas. The Emperor Justinian in 560 AD had abolished the doctrine and the legal concept of an autonomous patriarchal family unit, but in Britain its hallmarks lived on to underpin feudal society and to become absorbed into the common law. Some of the more characteristic features of this doctrine included: the private autonomous household ruled by the father, the actual or virtual ownership of children, the blood tie, filial piety, the power and limits of corporal punishment, the expectation of maintenance and the diminished relationship between child and state. Parents were guardians of their children as of right, a right which included a custodial authority based on ownership of the child. The common law, like that of ancient Rome, was essentially grounded on the rights and duties of the individual. It recognised and placed great importance upon legal status. In the context of the family, this meant a focus on the rights of the father and then to a lesser extent on the legal status of any others involved. The recognition given to the father with marital status was all important. Any actionable rights, in relation to the members of his autonomous marital family unit, belonged to the father. Thus, for example, for centuries he had the right to sue a third party for the loss of services to which he was entitled as father or spouse (e.g., he could sue for ‘restitution of conjugal rights’ and claim damages against an adulterer for depriving him of such rights).

1.4.1.1

Paternal Rights

By the middle of the nineteenth century the doctrine of paternal rights was firmly established. The prevailing attitude towards paternal authority and the autonomous marital family unit was reflected in the opinion of a contemporary writer who stated23 : 23 See, Transactions of the National Association for the Promotion of Social Sciences (1874), quoted

by Pinchbeck, I. and Hewitt, M. in Children in English Society (1973), p. 359. Also, see, Fox Harding Perspectives in Child Care Policy, Longman (1997) at p. 35 where he suggests that there was considerable opposition to laws restricting child labour and introducing compulsory education because these were seen as constituting an unwarranted state interference with parental authority.

1.4 Adoption in England: Historical Context

13

I would far rather see even a higher rate of infant mortality than has ever yet been proved against the factory district or elsewhere… than intrude one iota further on the sanctity of the domestic hearth and the decent seclusion of private life…”

The prima facie right of a father to the control and custody of the children of his marriage, subject to an absence of abuse,24 was virtually impregnable. It was absolute as against the mother.25 The approach of the common law was reflected clearly in the judgment delivered by James L J in Re Agar—Ellis26 when, on giving the decision of the Court of Appeal, he added: The right of the father to the custody and control of his children is one of the most sacred rights.

In this judgment, which treated paternal authority as almost absolute in the absence of any misconduct, the high water mark was reached for paternal rights. Its principal characteristics concerned the right to custody of a child, the accompanying rights to determine religious upbringing and education and the final right to ensure the continuance of the family estate by bequeathing property to his natural offspring. The strength of the paternal right to custody27 applied only to marital children. Until 1839 the custody of a legitimate child vested automatically and exclusively in the father. As head of the family he had the right to administer reasonable chastisement to his child.28 His status was also the basis of the action for enticement.29 Kidnapping a child was viewed essentially as an infringement of the paternal right to custody.30 Such was the stringent judicial approach to the legal standing of the father that the courts would not allow a father to avoid his parental responsibilities by voluntarily giving up his right to custody and control.31 The common law prohibited any attempt by a parent to irrevocably transfer all rights and duties in respect of a child to another. As was stated in Re O’Hara:

24 See

Re Thomasset [1894] 300. Ex parte Skinner, 9 Moo 278; Simpson on Infants, 2nd ed (1908), p. 115. 26 (1883) 23 Ch D 317, pp. 71–2. 27 See, De Mannerville v. De Mannerville, op cit. 28 See, Gardner v. Bygrave [1889] 6 TLR 23 DC, Mansell v Griffin [1908] 1 KB, 160, obiter, R v. Hopley [1860] 2F and F 160. 29 See, Lough v. Ward [1954] 2 All ER 338; this remained the case until abolished by s 5 of the Law Reform (Miscl Prov) Act 1970. 30 See, for example, R v. Hale [1974] 1 All ER 1107 it was alleged that the accused had “unlawfully secreted… a girl aged 13 years, against the life of her parents and lawful guardians.” 31 See, St John v. St John (1805) 11 Vessey 530 and Vansittart v. Vansittart (1858) 2 De Gex & Jones 249 at p. 256; Hamilton v. Hector (1872) LR 13 Equity 511. 25 See,

14

1 Adoption: Concepts, Principles and Social Construct …English law does not permit a parent to relieve himself of the responsibility or to deprive himself of the comfort of his position32

and …English law does not recognise the power of blindingly abdicating either parental right or parental duty.33

Parental rights were regarded as inalienable. Parental culpability alone set the threshold for state intervention on behalf of child welfare. No separation agreement— purporting to regulate the future care, custody, education and maintenance of his children—would be enforced by the court against a father as this was viewed as an attempt “to fetter and abandon his parental power” and “repugnant entirely to his parental duty”.34

1.4.1.2

Parental Duties

The common law recognised a specific duty particular to the parental relationship: the duty to provide for and adequately maintain a child throughout childhood. As Sir W Blackstone stated35 : The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, … laid on them not only by nature herself, but by their own proper act, in bringing them into the world…

This duty was underpinned by the criminal law. The common law generated a number of criminal offences particular to children and their parents. They were focussed not on the welfare of a child but on the abuse of a parental right; welfare was legally recognised only in an obverse relationship to parental right. A conviction would ensure court removal not just of custody but of all parental rights in respect of the child. The common law was never prepared to concede that a positive welfare advantage to the child would in itself provide grounds for displacing the parental right.

1.4.1.3

The Sanction of ‘Illegitimacy’

The status of the patriarchal marital family in Victorian England was policed by the common law approach to ‘illegitimacy’. This term served both to reinforce the ‘legitimate’ family while simultaneously disenfranchising the non-marital child and 32 See,

In re O’Hara [1900] 2 IR 232, per Holmes LJ at p. 253; (1899) 34 ILTR 17 CA. Also, see, Humphrys v. Polak [1901] 2 KB 385, CA and Brooks v. Brooks [1923] 1 KB 257. 33 Ibid., per Fitzgibbon L J. 34 See, Van v. Van, p. 259, per Turner L J. 35 See, Commentaries on the Laws of England, Oxford, Clarendon Press, 1765.

1.4 Adoption in England: Historical Context

15

father and singling out the child’s mother (though not the father) for social opprobrium. All three were firmly and publicly placed outside the law as it then related to the family. The consequences for those tainted by ‘illegitimacy’ involved serious status constraints not least in regards to rights of inheritance.

1.4.2 The Poor Laws In England, from at least the time of the Poor Law 1601, a distinction had been drawn between public and private responsibilities in relation to children; a distinction which contrasts sharply with the fusion of such responsibilities in indigenous communities. Where family care was not possible—in circumstances of parental death, absence or criminal abuse—then Parliament used the Poor Laws to place responsibility on public authorities for the provision of residential child-care facilities. The Poor Laws significantly extended state interest in parenting standards by making the fact of child need itself, rather than its cause, a sufficient threshold for voluntary state intervention. Parental culpability was no longer a necessary prerequisite for the transfer of responsibility for a child from the private to the public domain. Parents unable or unwilling to continue caring could voluntarily place their children with the Poor Law guardians. Once in care, parental rights could be assumed by the guardians under s 1(1) of the Poor Law Act 1889,36 subject to subsequent judicial confirmation, and the guardians could under s 3 be empowered to place the child for adoption. Poverty was most often the root cause of parental failure necessitating coercive state intervention, by Poor Law guardians, to remove children from parental care and commit them to the care of the state.

1.4.2.1

Public Child Care and Protection

The Poor Laws era introduced the formal role of the state as public guardian of child welfare. This role was evidenced by the beginnings of statutory criteria for the state to formally acquire care responsibility for children, schemes for boarding-out orphans and the children of destitute mothers and the provision of residential homes for children permanently separated from their parents. The influence of various philanthropic societies during the period governed by the Poor Laws was also important. By the end of the nineteenth century child welfare voluntary organisations such as Dr. Barnardo’s and the NSPCC began their current specialist services for children by developing a ‘child rescue’ approach to those abandoned, impoverished or ill-treated in the era of the Poor Laws. However, charitable 36 Continued

by s 52 of the Poor Law Act 1930 and subsequently by s 2 of the Children Act 1948. This power was regarded by the Curtis Committee as a “very important provision” (para 19) and in 1945 about 16% of children in the care of poor law authorities had been the subject of a s 52 resolution (ibid. para 29). This was later echoed by the Houghton Committee (para 153).

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organisations providing care were often faced with parental demands for the return of their children once they were old enough to be useful and earn a wage. The Custody of Children Act 1891 was introduced to provide a civil remedy for third party carers whose provision for destitute children was opposed by fathers demanding restitution of their custody rights. The rationale for the 1891 Act was explained in the course of the preceding House of Commons debates: …the Bill is intended to deal with… children who have been thrown helpless on the streets, and wickedly deserted by their parents, and who are taken by the hand by benevolent persons or by charitable institutions…

Its purpose was to provide a civil remedy to protect abandoned children from their neglectful parents by not enforcing parental rights. As such it was the first piece of legislation to offer protection for children from their parents and to others acting in loco parentis.

1.4.2.2

The Non-marital Child

Under the common law, a non-marital or ‘illegitimate’ child was designated sui juris (outside the law), or the child of no-one, and received no recognition in law. Parental responsibilities in respect of such a child could, therefore, be transferred. The adoption option in respect of such children admitted to the care of the Poor Law authorities or that of charitable organisations was readily available. This, in effect, confined the practice of adoption as a common law process to the relinquishment of illegitimate children by their unmarried mothers who, given the weight of public approbation and lack of any legal means of securing financial support, were left with little option. The courts took the pragmatic view that, in the circumstances, the decision to terminate parenting was itself a responsible parental act. This sympathetic judicial approach was evident in the ruling of Fitz-Gibbon LJ in In re O’Hara37 when he commented that: …the surrender of a child to an adopted parent, as an act of prudence or of necessity, under the pressure of present inability to maintain it, being an act done in the interests of the child, cannot be regarded as abandonment or desertion, or even as unmindfullness of parental duty within the meaning of the Act.

Where the responsibility for an illegitimate, abandoned or orphaned child could be assumed within the care arrangements of a private family, instead of becoming an additional burden on public rates, then the courts did not interfere.

37 [1900]

2 IR 233 at p. 244.

1.4 Adoption in England: Historical Context

17

1.4.3 Pressures for Change; End of the Nineteenth Century In England, at the turn of the nineteenth century, the prospect of adoption legislation was a contentious matter. Although different reasons have been put forward for this, arguably in the main the resistance to adoption had its roots in the values and ethos that permeated Victorian society at that time. To those who then constituted the upper echelons of the embedded class structure, matters such as ‘blood lines’ were important. Maintaining established family lineage, and the estates that had survived intact for generations, was viewed as dependant to some degree upon protecting the status quo and with it the ability for families to continue discretely managing opportunities for marriage and eventual succession rights. There were many who considered that adoption would introduce an unknown element into the rules governing inheritance and succession with potential to undermine established rights and thereby threaten the orderly devolution of family property. Victorian England was also a strictly patriarchal society where the male heads of families, whether rich or poor, shared a common law understanding of their rights and duties in relation to children. A view reinforced by the male heads of institutions such as the Church, parliament and the judiciary. Many of those who opposed the introduction of adoption did so in the belief that facilitating it would serve only to condone the actions of feckless parents seeking to avoid their legal, moral and economic duties to provide for the upbringing of their children. At a time when family law was governed by paternal rights and duties, rather than child welfare considerations, adoption was viewed by some with skepticism as a potential licence for continued permissiveness. Both camps were very alert to matters of status and again, to some, adoption seemed to undermine certain carefully established legal and social distinctions. So, for example, the age old legal distinction between ‘legitimate’ and ‘illegitimate’ children and between the social standing of their respective sets of parents had a value for many. Status considerations extended to include matters such as family name, property, religion, residence, domicile etc. However, there were a number of specific public concerns which steadily added to the pressure for change: Baby-Farming The practice of ‘baby farming’, or ‘trafficking’ in children, whereby unmarried mothers would entrust the care of their children to child minders who would then often neglect, abuse, murder or arrange for the informal adoption of their children, caused growing public disquiet.38 Amelia Elizabeth Dyer (1837–1896), Margaret Waters (1835–1870), Amelia Sach (1873–1902) and Rhoda Willis (1870–1907), all convicted and hanged, were only some of the many ‘baby farmers’ responsible for at least several hundred child murders. The Infant Life Protection Act 1872 had sought to extend legal protection not only to the vulnerable young residents of workhouses 38 See, the report by the Select Committee on the Protection of Infant Life. This ‘baby-farming’ scandal resonated with a similar experience in Australia (see, further, Chap. 10).

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1 Adoption: Concepts, Principles and Social Construct

but also to all those whose care was entrusted by their unmarried mothers to such child minders. This was a period when charitable organisations were very active in rescuing children from abuse situations.39 De Facto Adoptions Those who undertook responsibility for children, abandoned by parents when they were young and needing care and maintenance, were often faced with parental demands for the return of their children when the latter were old enough to be useful and earn a wage. In an era when the courts were steadfastly defending the principle that parental rights were inalienable, such demands were difficult to lawfully resist. Consequently, by the latter half of the nineteenth century Parliament was under growing pressure to provide legal protection for persons who cared for the children of others. As explained by Lowe40 : Attempts to introduce adoption legislation were made in both 1889 and 1890. The object of each Bill41 was to protect both children and adults involved in so-called ‘de facto adoptions’ (that is, where children were looked after by relatives or strangers either with the parent’s consent or following the latter’s abandonment of their children) by preventing parents or guardians from removing their children after they had consented to the ‘adoption’ unless they could persuade the court that such recovery was for the child’s benefit.

War Orphans In the aftermath of the First World War, adoption became a matter of general public concern as families informally undertook the care of very many orphaned children but without any guarantee of legal security for their voluntarily assumed care arrangements. Some of these caring families, like the children concerned, were from influential social backgrounds and were not prepared to passively accept the legal insecurity that accompanied informal adoption arrangements. It should also be remembered that this was a period when adoption law had already been successfully introduced in some former British colonies 42 to which there was an established practice of sending children for the purposes of their adoption.43 The issue as to why England should continue to resist introducing legislation to regulate a practice that was good enough for her former colonies and good enough for her to send her children to would not go away.44 39 The Thomas Coram Hospital for Foundling Children, for example, and the Infant Life Protection Society were very active at this time. 40 See, Lowe, N., ‘English Adoption Law: Past, Present and Future’ in Katz, S., Eekelaar, J. and Maclean, M., Cross Currents: Family Law and Policy in the United States and England, Oxford, Oxford University Press, 2000. 41 Ibid. See, respectively, the Adoption of Children Bill (No. 101), 1889 and the Adoption of Children Bill (No. 56) 1890. 42 For example: in Massachusetts, USA in 1873; in New Brunswick, Canada in 1881; in New Zealand in 1881; and in Western Australia in 1896. 43 See, Bean, P. and Melville, J., Lost Children of the Empire, London, Unwin Hyman, 1989. 44 See, for example, the report of the Royal Commission on the Poor Law (Cmnd 4499), 1909.

1.5 Adoption Legislation: Evolving Principles and Policy

19

1.5 Adoption Legislation: Evolving Principles and Policy Eventually the government established the Hopkinson Committee to examine the case for introducing adoption legislation. In its report45 the Committee recommended that existing care arrangements be retrospectively secured by legislation but despite several attempts the government failed to do so.46 Interestingly, as noted by Lowe,47 the Committee recommended that the courts should have the power to dispense with parental consent not just in cases of parental neglect or persistent cruelty but also ‘where the child is being brought up in such circumstances as are likely to result in serious detriment to [the child’s] moral or physical welfare’.48 Instead the government resorted to setting up the Tomlin Committee which did not view adoption as the answer to the problem of unwanted children—“the people wishing to get rid of children are far more numerous than those wishing to receive them”.49 Although not sharing the conviction of its predecessor that adoption legislation was necessary to encourage adopters, the Committee was convinced of the need to do so to protect those who had made care commitments to children in de facto adoptions. This Committee differed from its predecessor in relation to the proposed power to dispense with parental consent50 preferring to restrict it to cases of parental abandonment or desertion, where the parent could not be found or was incapable of giving consent or ‘being a person unable to contribute to the support of the minor has persistently neglected or refused to contribute to such support’.51 Interestingly, it also argued against adoption being a secretive process in which the parties would not be known to each other.

1.5.1 The Adoption Act 1926 Following publication of the Tomlin Report52 and further failed Bills,53 the government introduced the 1926 Act permitting, for the first time in these islands, a formal legal procedure for the adoption of children. This legislation avoided dealing with the thorny issues of inheritance and succession, dispensing with parental consent and the possible rights of an older child to give or withhold consent to his or her 45 See,

The Report of the Committee on Child Adoption (Cmnd 1254), 1921. Lowe, N., ‘English Adoption Law: Past, Present and Future’ in Katz, S., Eekelaar, J., and McLean, M. (eds.), Cross Currents, Oxford University Press, 2000 at pp. 308–310. 47 Ibid., at p. 311. 48 Op cit, at para 34. 49 See, McWhinnie, A., Adopted Children: How They Grew Up, Routledge & Keagan Paul, London, 1967. 50 See, See, Lowe, N., ‘English Adoption Law: Past, Present and Future’ op cit at p. 311. 51 See, Clause 2(3) of the draft Bill prepared by the Tomlin Committee. 52 See, Report of the Child Adoption Committee 1924–1925, (Cmnd 2401). 53 A total of 6 adoption Bills were introduced during 1924–1925. 46 See,

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1 Adoption: Concepts, Principles and Social Construct

adoption54 and to maintain contact with a birth parent, but it did embody three basic principles: • all parental responsibilities would irrevocably and exclusively vest in the adopter/s; • the welfare interests of the child would be independently assessed; and • the informed consent of the natural parent/s was required unless they were dead, or had abandoned the child, or their whereabouts were unknown or they were incapacitated. This legislation also embedded a singular and enduring feature of adoption in these islands: it was to be a process that would have judicial scrutiny and authority at its heart. As Cretney has noted, the role of the court has been the ‘only constant in the development of the adoption process over the past 70 years’.55 While it is tempting to attribute this to legislative concern that the rights of all parties, particularly those of birth parents, be judicially safeguarded, the probability is that it was more a reflection of the importance traditionally attached to policing legal status in British law: not just in family law but in entitlements to inheritance and citizenship etc.

1.5.2 The Adoption of Children (Regulation) Act 1939 The recommendations of the Horsburgh Committee,56 set up in 1936 to ‘inquire into the methods pursued by adoption societies and other agencies’, were incorporated into the 1939 Act. This required the registration of such societies or agencies and prohibited the making of adoption arrangements by any other body. As Lowe notes, this legislation established the rudiments of today’s adoption service, and outlined the remit of the modern Adoption Panel, by empowering the Secretary of State to make regulations to57 : (a) (b) (c)

54 In

ensure that parents wishing to place their children for adoption were given a written explanation of their legal position; prescribe the inquiries to be made and reports to be obtained to ensure the suitability of the child and adopter; and secure that no child would be delivered to an adopter until the adopter had been interviewed by a case committee.

Scotland this right has been available to children aged 12 or older from the introduction of the first adoption legislation (the Adoption of Children (Scotland) Act 1930, s 2(3)). 55 See, Cretney, S., Family Law in the Twentieth Century: A History, Oxford University Press, Oxford, 2003, at p. 268. 56 See, Report of the Departmental Committee on the Adoption of Children, Cmnd 9248, London, HMSO, 1954. 57 See, See, Lowe, N., ‘English Adoption Law: Past, Present and Future’ op cit at p. 322.

1.5 Adoption Legislation: Evolving Principles and Policy

21

1.5.3 The Adoption Act 1949 This legislation rectified one omission in the 1926 Act by establishing the principle that adoption changed the child’s status and vested in him or her certain succession rights in relation to their adopter’s estate,58 though not to any title, while also empowering local authorities to make and participate in adoption arrangements. Subsequently, both the Hurst Committee59 and the Houghton Committee60 recommended strengthening the role ascribed to local authorities and eventually in 1988 a provision was inserted into the 1976 Act making it mandatory for all local authorities to ensure the provision of an adoption service in their areas. In 1954 the Hurst Committee61 suggested that the ‘primary object … in the arrangement of adoptions is the welfare of the child’ and the Houghton Committee in 197262 recommended that ‘the long-term welfare of the child should be the first and paramount consideration’.

1.5.4 The Children Act 1975 The 1975 Act introduced a new part for welfare to play in the adoption process. Section 3 stated: In reaching any decision relating to the adoption of a child, a court or adoption agency shall have regard to all the circumstances, first considerations being given to the need to safeguard and promote the welfare of the child through his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.

This indicated that the public interest in adoption was to be represented by the welfare principle which was to be applied in all decisions, not just in the decision to make an adoption order. The 1975 Act, following recommendations made in the Houghton Report, also introduced custodianship orders63 which were intended to provide an alternative to adoption for applicants whose circumstances did not warrant the absolute and exclusive effects of adoption. Custodianship failed to win any support in the courts and this legal proceeding terminated with the introduction of the Children Act 1989.

58 Such

succession rights were further extended in the Children Act 1975. Report of the Departmental Committee on the Adoption of Children, op cit, para 24. 60 See, Report of the Departmental Committee on the Adoption of Children, London, HMSO, 1972, Cmnd 5107, paras 33 and 34 and recommendation 2. 61 See, Report of the Departmental Committee on Adoption Societies and Agencies, London, HMSO, 1937, Cmnd 5499, p. 4. 62 See, Report of the Departmental Committee on the Adoption of Children, op cit, para 17. 63 Ibid., at para 121. Custodianship became available in 1985. 59 See,

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1.5.5 The Adoption Act 1976 This legislation, which came into effect in 1988, gave effect to most of the recommendations made by the Houghton Committee and incorporated s 3 of the 1975 Act. Protracted delay in implementing the 1976 Act meant that practice developments had outpaced legislative reform by the late 1980s. As Bridge and Swindells comment64 : The legislation had a sense of the past about it almost before it was fully in force and the 1976 Act came to be perceived as meeting the demands of an earlier age while failing to accommodate the changing use to which adoption had been put.

However, the new provisions did provide an improved framework for the judiciary to meet contemporary practice demands. The freeing procedures, for example, together with case law principles which stressed the weighting to be given to child welfare concerns relative to parental unreasonableness, facilitated an increase in nonconsensual child care adoptions. The scope provided by s 12(6) for the court to attach such conditions as it sought fit, allowed the judiciary to moderate the more extreme effects of adoption by granting orders subject to access conditions that maintained an adopted child’s continued relationship with members of their family of origin. Also, the introduction in s 51 of an adopted person’s right to obtain a copy of their original birth certificate marked an important break with the traditional veil of secrecy and prepared the ground for more openness in adoption. However, the summary comment made by the Commission for Social Care Inspection, seems fair65 : The 1976 Act brought together arrangements for adoption and the care and protection of children waiting to be adopted. It focused on the needs of children likely to be adopted at that time. There was no specific provision for the needs of older children, the lifelong impact of adoption or the welfare of children adopted from abroad.

1.5.6 The Children Act 1989 The 1989 Act, a formative statue, affected adoption law and practice in a number of ways. It made available a menu of family proceedings orders some of which like residence orders and parental responsibility orders reduced the need for adoption while others such as contact orders could be used in conjunction with adoption orders. By stating the matters held to constitute a checklist of welfare interests it enabled a new, more uniform and objective application of this inherently subjective concept. By introducing the concept of parental responsibility and requirements on local councils to provide services for children in need it placed a new emphasis on measures to prevent children entering the public care system. It accelerated the general movement towards accommodating more openness in adoption. It also introduced the 64 See,

Bridge, C. and Swindells, H., Adoption—The Modern Law, Family Law, Bristol, 2003 at p. 12. 65 See, the Commission for Social Care Inspection, Adoption: Messages from Inspections of Adoption Agencies, London, 2006, para 4.2.

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23

paramountcy principle to govern judicial decision-making and by doing so sparked off a long period of debate as to why the principle should not be extended to adoption proceedings. More broadly, the flexibility provided by the 1989 Act revealed the absence of this approach in the 1976 Act.

1.5.7 Adoption (Intercountry Aspects) Act 1999 This Act amended the Adoption Act 1976 in respect of intercountry adoption and enabled the UK to ratify the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption.

1.5.8 The Adoption and Children Act 2002 The roots of the 2002 Act lie in the 1992 review of adoption law conducted jointly by the Department of Health and the Law Commission.66 This resulted in the Consultation Document67 which led in turn to the publication of the government’s White Paper Adoption—the Future68 and its sequel the Bill Adoption—A Service for Children.69 However, despite a gestation period of thirteen years, it was not until the pressure generated by child care scandals became acute that the government was finally prompted to prepare new legislation.70 At the heart of this policy review lay the fundamental question—What was to be the function of adoption in the twenty first century? Practice had transformed the use of adoption since implementation of the 1976 Act, while the principles governing child care and adoption had become increasingly conflicted since the introduction of the 1989 Act.

66 The working party, drawn from the two agencies, was established in 1989. Constituted as the Interdepartmental Review of Adoption Law, it published four preliminary discussion papers: The Nature and Effect of Adoption (1990), Agreement and Freeing, The Adoption Process, and Intercountry Adoption; and three background papers: International Perspectives (1990), Review of Research Relating to Adoption (1990), followed by Intercountry Adoption (1991–1992). 67 See, the Department of Health, Adoption Law Review: Consultation Document, 1992. 68 (Cmnd 2288), 1993. 69 See, Adoption––A Service for Children, HMSO, 1996. Also, note the current consultation process in relation to the Children Bill particularly the Green Paper Every Child Matters, 2003 and Every Child Matters: Next Steps published by the Dept. of Skills and Education, 2004. 70 See, in particular, the Waterhouse Inquiry, Lost in Care: Report of the Tribunal of Inquiry into the Abuse of Children in Care in the former County Council Areas of Gwynedd and Clwyd since 1974, The Stationery Office, London, 2000.

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1 Adoption: Concepts, Principles and Social Construct

Following the review of adoption services,71 the local authority circular Adoption—Achieving the Right Balance72 presented an important reformulation of the policy governing child care adoptions. It firmly stated that henceforth the governing aim was to “bring adoption back into the mainstream of children’s services”. It contained detailed sections dealing with issues such as race, culture, religion, language and avoiding delay and stated that where: …children cannot live with their families, for whatever reason, society has a duty to provide them with a fresh start and where appropriate a permanent alternative home. Adoption is the means of giving children an opportunity to start again; for many children, adoption may be their only chance of experiencing family life.

This circular has to be viewed in conjunction with the research findings published at much the same time in Adoption Now.73 The message from research was that the fall in child care adoptions during the period 1992–1998 was largely attributable to the local authority emphasis on attempting to rehabilitate looked after children with their families of origin. This was due to social workers earnestly struggling to give effect to the principles of ‘partnership with parents’ and ‘family care is best care’ that underpinned the 1989 Act. In so doing, it was argued, local authorities were undervaluing the adoption option. As Lowe points out, the approach in Adoption Now was subsequently endorsed by the Quality Protects programme which aimed to “maximise the contribution that adoption can make to provide permanent families for children in appropriate cases”. It also required local authorities “to reduce the period children remained looked after before they are placed for adoption”.74 A fresh policy initiative, under the Prime Minister’s personal leadership, firmly placed child care adoption on the political agenda. Too few children were being adopted from public care and those that were had to wait too long; adrift in care was not an acceptable option. It unequivocally asserted the need to make available the best form of permanent care to children failed by their parents and destined to experience a transitory sequence of residential and/or foster placements. There was considerable evidence that such children suffered poor educational attainment and a greater likelihood of eventual exposure to unemployment, homelessness and prison. Preparations for new legislation began with the White Paper, Adoption: A New Approach in December 2000, followed in March 2001 by the Adoption and Children Bill being introduced in Parliament and concluded in November 2002 when the Bill received the Royal Assent. The Adoption and Children Act 2002, which came fully

71 See, the Department of Health, For Children’s Sake: An SSI Inspection of Local Authority Adoption

Services, 1996 and For Children’s Sake––Part II: An SSI Inspection of Local Authority Adoption Services, 1997. 72 Local Authority Circular (20) 1998. 73 See, the Department of Health, Adoption Now: Messages from Research, 1999. 74 See, the Department of Health, The Government’s Objectives for Children’s Social Services, 1999, at para 1.3.

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into effect in December 2005, has ever since stated the law in England and Wales.75 This statute, as the Commission for Social Care Inspection explained76 : • puts the needs of the child at the centre of the adoption process by: – aligning adoption law with the Children Act 1989 to make the child’s welfare the paramount consideration in all decisions to do with adoption; – requiring the court or the adoption agency to have regard to a ‘welfare checklist’; • sets a clear duty on local authorities to provide an adoption support service and a new right for people affected by adoption to request and receive an assessment of their needs for adoption support services; and • enables unmarried couples to apply to adopt jointly, thereby widening the pool of potential adoptive parents. The 2002 Act introduced the placement order which, under s 21(1), authorised local authorities to place children for adoption with prospective adopters. The Act was accompanied by the introduction of National Standards, followed by the Children Act 2004 and the Children and Adoption Act 2006. Together this body of legislative provisions continue to constitute the contemporary legal framework for adoption in England & Wales. However policy has moved on in the past decade (see, further, Sect. 6.3).

1.6 Legal Context: Evolution of a Modern Statutory Process The Adoption of Children Act 1926 was introduced not to facilitate birth parents nor, particularly, to advance the welfare interests of children but primarily it was intended to provide protection for those third parties who had assumed care responsibility for children. In the aftermath of world war, when very many orphans were receiving such care, this legislative initiative was welcomed. Since then, the volume of annual orders has fluctuated in keeping with changing patterns of need but adoption as a legal process (unlike some other family proceedings e.g., guardianship) has proved its durability. It was conceived as, and remained, a contractual process that dealt separately with the legal interests of each of the parties.

75 The

Adoption and Children (Scotland) Act 2007 does so for Scotland while the draft Adoption and Children (Northern Ireland Bill) will, when introduced, complete the modernising of the legal framework for adoption practice in the U.K. 76 See, The Commission for Social Care Inspection, Adoption: Messages from Inspections of Adoption Agencies, London, 2006, para 4.8.

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1.6.1 The ‘Contract’ Adoption is a process which, at its most basic, re-distributes the legal interests of the three main participants and, unlike any of the other orders relating to children, does so on a permanent, irrevocable and traditionally on an unqualified basis. Some of these customary hallmarks have been steadily eroded as the process has adapted to fit the contemporary needs of those involved. Like all contracts, the commitments entered into by the parties must be evidenced by their informed consent; though in the U.K. this requirement has, in relation to older children, been given statutory recognition only in Scotland. The courts have also stressed the importance of ensuring the propriety of the contract by, for example, prohibiting any element of financial reward for the parties involved and any improper practice such as the unauthorised removal of a child from their jurisdiction of origin.77 In recent years, the contractual standing of the parties to an adoption has been affected not only by a transformation in the legal weighting ascribed to the role of the birth mother and that of an unmarried father; more recently the legal interests of the child concerned have also undergone a radical change. From being confined to a legal role as merely the object of adoption proceedings, the child and their welfare have now become fully the subject and purpose of such. In England and Wales, the incorporation of the paramountcy principle in the 2002 Act considerably altered the balance struck between the parties to an adoption contract (see, further, Sect. 6.3.3.1).

1.6.1.1

Private and Confidential

From the outset, the statutory process of adoption was viewed and treated as essentially a matter of private family law; in fact, the most private of all family proceedings. The contractual arrangements reflected this in the guarantees of anonymity given to adopters and the birth parent/s, in the court use of serial numbers to hide the identity of children, the lack of access to agency files etc. This cloak of secrecy was steadily lifted in the late twentieth century particularly as regards facilitating adopters’ rights of access to personal identity information.

1.6.1.2

Permanent and Irrevocable

The absolute nature of adoption, relative to other family orders, was apparent from the fact that once made, it retained its binding effect on all involved at least until the child concerned reached maturity. A valid order was not open to challenge by any of the parties, nor by anyone else. In particular, it could not be refuted by the adopters. This characteristic has remained immutable. 77 Both practices, associated with the traditional abhorrence of ‘trafficking’ in children, were criminal

offences under s 57 and s 11, respectively, of the 1976 Act.

1.6 Legal Context: Evolution of a Modern Statutory Process

1.6.1.3

27

Exclusive

In keeping with Victorian values, an adoption order was intended to extinguish all parental rights and duties of birth parents and vest as full a complement of parental responsibilities in named adopters as possible. A quick, clean and absolute break between the child and birth family was the legislative intent; no other form of ongoing intrusion in the new family was envisaged. For most of its history, adoption very largely met this expectation. However, with an increasing awareness of ‘attachment theory’ has come a willingness to allow adoption orders to be made subject to conditions permitting contact between a child and members of their family of origin with whom a significant relationship has been established. Moreover, as child care adoption increased so too did the frequency of public service commitments to sustaining adoptions through the provision of ongoing professional and other resources. The adoption process has become much more ‘open’ than could have been initially foreseen.

1.6.2 The Parties The legal process of adoption rests on a triangular relationship. In western society this has traditionally been typically represented by the unmarried birth parent/s, their lovingly relinquished healthy baby and the unrelated, married but childless heterosexual couple. Full party status is usually confined to two of these participants. The relinquishing birth parent/parents or guardian and the person or couple wishing to undertake responsibility have always been parties in any adoption proceeding. The child, the subject of the proceedings, has not usually been awarded party status. Others may mediate, such as statutory and voluntary agencies, in arranging or supervising care arrangements. A range of carers and professionals from foster parents to judiciary will also be involved. An extensive network of family relationships will always be affected. But the legal framework is concerned exclusively with the re-distribution of legal responsibilities within this triangle of relationships. For convenience, these three may be referred to as the parties in an adoption process.

1.6.2.1

The Child

Children—their needs, availability and ultimately their acquisition—are of course central to adoption. When children were orphaned or abandoned, when their ‘illegitimate’ status could be transformed to ‘legitimate’, where parental consent was available or not withheld and where it was judged to be compatible with the child’s welfare interests, then adoption was judicially viewed as wholly appropriate. However, when complications arose, especially in relation to the child in care whose married parents refused consent, then the courts were a great deal more circumspect. In the U.K.

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there would seem to have always been an imbalance in the number of children available relative to prospective adopters. For the earliest and longest part of its history as a statutory process that imbalance was evident in an excess of such children; resulting in their adoption overseas. In recent decades this imbalance has apparently been reversed: an excess of adopters resulting in thousands of children being brought from countries such as Romania for adoption in the U.K. At the same time, however, many thousands of children deemed unavailable—due to lack of parental consent—remained in the public child care system. While the courts have always required an independent assessment of a child’s welfare interests, only in recent years have they been prepared to grant party full party status and rights of representation to older children in adoption proceedings.78

1.6.2.2

The Birth Parent/s

The birth parent and/or legal guardian of the child, vested with parental responsibility, have always had full party status in any proceedings for the adoption of that child: the birth mother being inherently vested with such responsibility; the birth father having to legally acquire it. For the purposes of the statutory law of adoption in the U.K., the terms ‘natural parent’ or ‘birth parent’ have traditionally been interpreted as referring to the mother of a non-marital child whose involvement with the adoption process was solely for the purpose of voluntarily relinquishing all responsibility for that child. In recent years, however, the locus standi of an unmarried father has acquired greater salience. Birth Mother The forced option of adoption was often unavoidable for an unmarried mother facing social censure, financial hardship and without the means to seek recourse to the courts. Of the three parties, only she held a legal right in relation to adoption; the right to relinquish all future rights. Whether married or not she could consent to the adoption of her child and, until the Adoption Act 1976, could directly place her child for adoption with whomsoever she chose. She thereafter retained, and continues to retain, the right to directly place her child for that purpose with a relative.79 However, the introduction of the parental responsibility order under the Children Act 1989 together with increased use of adoption by re-married parents in respect of legitimate children transformed the traditional role of the birth parent in the adoption process. The contemporary law of adoption in the U.K. has broadened that role to include unmarried fathers and marital parents of either gender. Arguably, in the U.K. as elsewhere in the western world, the needs of the birth mother had by the final decades of the twentieth century become the principal 78 Adoption

and Children Act 2002, s 122. 11 of the 1976 Act, following the recommendation in the Houghton Report (op cit, para 81), prohibited direct placements by a birth parent with anyone other than a relative of that parent. Exemptions to the application of s 92 of the 2002 Act continue this residual parental right. 79 Section

1.6 Legal Context: Evolution of a Modern Statutory Process

29

bargaining position around which the needs of the child and those of the adopters had to be fitted. The dominance of the patriarchal model of the autonomous marital family unit had long gone. The legislative and judicial hesitancy to accommodate the paramountcy principle in adoption law had constrained opportunities to give priority to the needs of the child. The needs of adopters, always the driving force in this dynamic, remained totally dependent upon children being available and all traditional sources were rapidly drying up. But the weighting given to the legal interests of birth mothers had grown to have a powerful impact upon adoption. A constellation of different factors from financial and housing benefits for unmarried mothers—including a range of birth control methods, increased opportunities for employment, and ease of access to divorce proceedings—to social acceptance of non-marital and serial cohabitation arrangements combined to transform the locus standi of a birth mother. Not only could she now choose to avoid what had previously been the forced option of adoption but, should she decide to opt for her traditional role in that process, she could still claim the protection of confidentiality and anonymity that accompanied it.80 Moreover, the modern use of adoption, as a variant of the long defunct custody order, to secure the boundaries of the increasingly impermanent nuclear family unit, emerged as a significant feature of this change process. The corollary, that it had become the recourse of birth parents for reasons exactly the opposite of those initially intended—to re-assert rather than relinquish their legal responsibilities—is indicative of the fundamental nature of the changes then affecting adoption. Despite a relatively acquiescent judicial attitude there had been a long standing unresolved debate as to the nature and extent of a public interest in this use of the law to accommodate the interests of a birth parent either applying to adopt his or her own child (no longer necessary, see Sect. 6.5.3.2) or being complicit in supporting their new partner to do so.81 Unmarried Father The traditional and rather dismissive approach of the law towards unmarried fathers without parental responsibility has gradually given way to a more accommodating attitude.82 Undoubtedly this change in judicial attitude has been influenced by the European Convention on Fundamental Freedoms and Human Rights. In Keagan v. Ireland,83 for example, the European Court of Human Rights established the principle that where an unmarried father had previously enjoyed a settled cohabiting relationship with a mother who had decided to place their child for adoption then 80 See, for example, Z County Council v. R [2001] 1 FLR 365 where Holman J upheld the right of a relinquishing birth mother to insist that her siblings were neither informed of her decision nor approached to assess whether they would be in a position to undertake care responsibility. 81 See, the concern expressed by the Houghton Committee in Adoption of Children at para 98 (1970), HMSO. 82 An approach that may be traced back to Re C [1991] FCR 1052 when the court at first instance and the Court of Appeal were strongly critical of a local authority that had treated a birthfather in a cavalier fashion and failed to inform prospective adopters of his involvement and his wish to maintain contact with the child placed with them. 83 (1994) 18 EHRR 342.

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that father should be informed and consulted because the protection given to ‘family life’ provided by Article 8 extended to include such a relationship (see, further, Sect. 4.3.2). The traditional veto, held by a birth mother in relation to disclosure of the identity and the resulting involvement of the child’s father in the adoption process, will no longer automatically prevail and will certainly be challenged in the courts if there is evidence of his prior cohabitation with the mother.

1.6.2.3

The Adopters

Thirdly and finally, the changes affecting adoption in the U.K. can be seen most clearly in the role of the adopters. It is not just that the number of those who succeed in adopting a child has fallen dramatically, it is also increasingly apparent that the legal functions of adoption are now being driven mostly by their needs. Some indication of the extent of that change can be seen in the range of applicants, and the broader span of needs they now represent, when compared with the third party childless marital couple who previously typified adoption applicants. Adoption by a birth parent acting, jointly with their new spouse to adopt the former’s child, marital or non-marital, had emerged as the most pronounced characteristic in the modern use of adoption. Kinship adoptions, whereby a child is adopted by a relative such as an uncle, aunt or grandparent, though of little numerical significance has also been increasing as a proportion of total annual applications and so also are adoptions by foster carers. The law has always paid particular attention to the ‘worthiness’ of third party adopters. Such was the legacy of nineteenth century ‘baby farming’ scandals that the legislative intent from the outset was directed towards putting in place the legal functions necessary to test the bona fides of would be third party adopters. Ultimately, this led to third party placements made by a birth mother or some person acting at her direction, being prohibited (unless made directly with a relative) because this test was judged more likely to be applied objectively if entrusted exclusively to professionals. The law was concerned to replicate for the child the type of family unit conforming most closely to the approved model prevailing in society at that time. Traditionally, conformity with that model required an archetypal childless marital couple of sound health and morals, in secure material circumstances and resident within the jurisdiction. As society became less homogenous, marriage less popular and less permanent, while the population of working age became more accustomed to transient home, employment and relationship ties, so the profile of third party adopters changed. From a position whereby they initially comprised the vast majority of adopters, they are now steadily declining both numerically and as a proportion of total annual applicants, although it is probable that the proportion of potential third party adopters in the general population remains at least as high as it has ever been. The fall in the number of children available, however, coupled with changes in the ‘type’ of child waiting to be adopted, have greatly affected the corresponding pool of potential applicants and considerably reduced the chances of third party applicants

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successfully adopting a child, particularly a baby, born within the jurisdiction. Also, in recent years, viable alternatives have become available—if at a price. Those wishing for a child or children can and do with increasing frequency turn to surrogacy as a genetically linked means for satisfying their need for family life. Moreover, new and improved IVF techniques have become more reliable, achieving a greater rate of success than was possible a decade or two ago.

1.6.3 The Principles From at least the initiation of adoption as a statutory process, the courts were clear that three principles governed the decision to grant an adoption order. Firstly, the court must be satisfied that adoption is in the welfare interests of the child concerned. Secondly, the informed consent of the birth parent/s must be freely given or the need for it dispensed with. Finally, the adopters must be fully vested with the parental responsibilities necessary to safeguard the welfare of the child until he or she reaches maturity. In recent years the influence of human rights jurisprudence can also be seen to be bearing down on adoption.

1.6.3.1

The Welfare of the Child

The principle that the welfare interests of a child should be of central importance in any decision taken affecting the upbringing of that child has long permeated the law relating to children. Adoption legislation, like all other family law proceedings, has always required that every application be subject to the ‘welfare test’, meaning that any decision must be taken only after consideration has been given to ensure its compatibility with the welfare interests of the child concerned. The part to be played by this imprecise term in adoption proceedings has for many years generated much controversy. Three aspects of ‘welfare interests’ are relevant in the context of adoption proceedings: • how is the term’s content or meaning defined in statute and case law? • what role does the law assign to the welfare test i.e. when and to what is it to be applied and over what period? • and crucially, what weighting is to be attached to the welfare component relative to the withholding of parental consent at time of determining an adoption, or placement order, application? While statute law traditionally made many references to ‘welfare interests’ it made no attempt to define or indicate the meaning to be attached to this term. Not until the ‘welfare checklist’ was introduced with the Children Act 1989 did legislative intent become specified. Being left with a free hand to develop their own interpretation, the courts have assembled a considerable body of case law illustrating the matters

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variously construed as constituting ‘welfare interests’. They have always needed to be satisfied that the order if made would be at least compatible with the child’s welfare interests which could comprise “material and financial prospects, education, general surroundings, happiness, stability of home and the like”.84 Traditionally, the comparative material advantage85 available in the home of adopting parents would have been judged insufficient justification in itself for severing a child’s links with his or her birth parents. So, also, reasons such as ‘legitimation’,86 immigration,87 or simply to change a child’s name,88 have similarly been held to be insufficient. In more recent years the courts have become more insistent that the term be interpreted in relation to the particular circumstances of the child concerned. There has always been an issue as to the relationship between the adoption process and the welfare test. The fact that the welfare of children would undoubtedly be improved by their adoption has never itself been sufficient justification for their admission to the process. For example, before the First World War at any one time there were some 80,000 children in care under the Poor Laws. Afterwards, adoption was a selective service for the benefit of adopters rather than adoptees, as may be seen in the fact that in 1929–1930 the National Children Adoption Association arranged 225 adoptions but rejected 550 children. These were also years which saw tens of thousands of children ‘trafficked’ by philanthropic societies from the U.K., where they were unwanted, to countries such as Australia and Canada up until the mid 1960s.89 Subsequently, despite legislative synchronisation of grounds for care orders and grounds for dispensing with parental consent so as to permit adoption, judicial resistance to the welfare test as a bridge between child care and adoption succeeded for many decades in preventing ready access to the process for children in care. In the U.K., the unfortunate consequences of this state of affairs were graphically highlighted by Rowe and Lambert in Children Who Wait.90 Only at point of case disposal did the welfare interests of the child have a critical bearing on whether or not an adoption order could be made. Statute law and case law have always been consistently clear that the welfare test is to be applied not just in the light of the child’s current circumstances but also prospectively so as to take into account their welfare interests until he or she attains the age of majority. This approach was first extended to suggest that the test be applied with a view to seeking assurance that it can be satisfied into the adulthood of the subject concerned. So, for example, where the Court of Appeal upheld91 an 84 See,

Re B [1971] 1 QB 437, per Davies L J at p. 443. Re D (No. 2) [1959] 1 QB 229. 86 See, for example, CD Petitioners [1963] SLT (Sh Crt) 7. 87 See, for example, In re A (An Infant) [1963] 1 WLR 34. Also, see, In re H (A Minor: Non-Patrial) [1982] Fam Law 121 where an adoption order was granted in respect of an immigrant child despite contrary advice from the Secretary of State. 88 See, for example, In re D (Minors) [1973] Fam 209. 89 As documented by Bean and Melville in Lost Children of the Empire, Unwin Hyman, 1989. 90 See, Rowe, J. and Lambert, L., Children Who Wait, London (1973). 91 See, In Re D (A Minor)(Adoption Order: Validity) [1991] 2 FLR 66. 85 See,

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adoption order granted six days before the subject with a learning disability attained his 18th birthday, it was held that in such circumstances the welfare consideration should extend beyond childhood. Subsequently, the reach of the principle was further extended to impose the present requirement that consideration be given to the subject’s projected lifelong welfare. For most of the history of the adoption process, legislators and/or the judiciary have ensured that a measured rather than an overriding weighting was given to welfare interests relative to all other considerations when determining adoption applications. This stand was based on the belief that welfare interests should not have automatic superiority, particularly in relation to the consent of birth parents. As explained by Lord Simon92 : In adoption proceedings the welfare of the child is not the paramount consideration (ie outweighing all others) as with custody or guardianship; but it is the first consideration (i.e. outweighing any other).

As Lord Hailsham had earlier argued, in the debates on the Children Bill in 1975, while the paramountcy principle applied to “care and control, custody and guardianship, it cannot be equally true of adoption”. It was strongly felt by many in the judiciary, that to abandon this final parental right—the right to refuse to surrender all parental rights—would be to open the door to ‘social engineering’.93 Finally, however, the principle that welfare interests must be the matter of paramount consideration—which had long governed decisions taken in wardship, child care and other proceedings—was extended to adoption with the introduction of the 2002 Act (see, further, Sect. 6.3.1.6).

1.6.3.2

Consent

The principle that adoption should rest on the full, free and informed consent of the birth parent/s, or the absence of dissent, was the starting point for statutorily regulating the process in the U.K. For most of its history, it has in the main been a consensual process resting on the freely given consent of the birth parent/s or on the absence of any need for it due to the child being orphaned or abandoned. While the consent principle has always protected the legal interests of a birth mother and those of a marital couple, in more recent years the law has extended the principle to afford recognition to the interests of the birth father, particularly if he has acquired 92 See,

Re D (An Infant)(Adoption: Parent’s Consent) [1977] AC 602 at p. 638. for example, the leading Northern Ireland case of In re E.B. and Others (Minors) [1985] 5 NIJB 1 where the dangers of straying into the realm of eugenics were explained by Hutton LJ: If the only test was the welfare of the child and the wishes of the natural parents could be disregarded, then there would be some cases where a child, taken into care for a short time because of the illness of his parents or some other family emergency, could be taken away permanently from humble and poor parents of low intelligence, and perhaps with a criminal record, and placed with adoptive parents in much better economic circumstances who could provide the child with greater material care and intellectual stimulation, a more stable background and a brighter future. 93 See,

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parental responsibilities. When dominated initially by third party applicants and latterly by birth parents, adoption was largely consensual. Both forms were facilitated by the legislative intent that the process should enable voluntarily relinquishing birth parent/s to surrender all rights. In consensual adoptions, the law has remained focussed on the evidence necessary to establish the existence of a free and fully informed consent; the fact, its form and the circumstances. In all others the focus has been on whether or not the grounds for dispensing with the need for consent can be satisfied. As the non-consensual proportion of annual applications has slowly grown, mainly due to an increase in child care adoptions, so too has contention as to the proper balance to be struck between the grounds on which a birth parent may withhold consent and the welfare interests of their child. When should welfare interests prevail over the wishes of a non-consenting parent? What, if any, rights could a non-consenting or indeed a consenting parent retain? In the U.K., the grounds on which a birth parent could rightfully withhold consent had been steadily reduced in the last half of the twentieth century. The inevitability of the legal balance being struck in favour of welfare as against parental rights had first been signalled with the wardship ruling in J v. C 94 followed by the inclusion of ‘paramountcy’ in s 1 of the Guardianship of Minors Act 1971. In the Adoption Act 1976 the legislative intent to extend this principle had been evident from the fact that in s 16, the final two grounds for dispensing with parental consent were explicitly child care in nature; ie serious parental ill-treatment of their child would justify this measure. In the Children Act 1989, Parliament firmly directed the judiciary to apply the paramountcy principle to determine all decisions affecting the upbringing of a child in family proceedings. This, together with the explicit child care grounds for freeing orders, should have expedited the flow of children from child care into the adoption process and substantially increased the number of non-consensual adoptions. Instead of taking the legislative lead, the judiciary steadfastly held to established precedents95 as the sole justification for dispensing with parental consent; for the last three decades of the twentieth century parental ‘unreasonableness’ was by far the most common ground for dispensing with consent. Simply put, the ‘unreasonableness’ test required the court to consider whether a reasonable person, in the parent’s position, being mindful of the child’s welfare interests, would be justified in withholding agreement. It was applied ubiquitously until displaced by the provisions of the 2002 Act. However, as the case law illustrates, for the next decade and more the judiciary exercised considerable restraint in giving effect to the clear legislative intent that welfare should always trump the veto of a failed or failing birth parent (see, further, Sect. 6.3.3.1). 94 [1970]

AC 668. specifically, Re W (An Infant) [1971] 2 All ER 49 where Hailsham LJ emphasised that: The test is reasonableness and nothing else. It is not culpability. It is not indifference. It is not failure to discharge parental duties. It is reasonableness and reasonableness in the totality of the circumstances.

95 See,

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Such limited rights as were reserved to a birth parent, such as the right to directly place their child with a person for the purposes of adoption, were eventually statutorily removed; except where the placement is with a relative.96 Whether entering the adoption process on a consensual or non-consensual basis, the only right legislatively left to a birth parent was the right to surrender all parental rights subject to a caveat in respect of the child’s religious upbringing. Although there had never been a statutory power permitting the courts to attach a condition to an adoption order—in deference to the traditional legal definition of adoption as immutable—the judiciary in the late twentieth century began selectively issuing adoption orders accompanied by contact orders authorising specified limited ongoing contact between an adoptee, their birth parent/s and/or their siblings. This practice was exercised restrictively, solely to further the welfare interests of the child and not to vest rights in the birth parent whether consenting or otherwise.

1.6.3.3

Parental Responsibilities

Finally, the law sought to give effect to the principle that adopters should be vested with the rights and duties necessary for them to step into the shoes of the birth parents and thereafter provide for the child as though he or she had been born to them and of their marriage. The legislative intent was that an adoption order would create new and permanent legal ties between the child and his or her adopters so that, as expressed by Vaisey J in Re DX (an infant)97 : The child looks henceforth to the adopters as its parents, and the natural parents, relinquishing all their parental rights step, as it were, for ever out of the picture of the child’s life.

As initially understood, granting an adoption order vested certain common law rights and duties in the adopters. They acquired the right of custody which has been defined as a ‘bundle of powers’ including not merely physical control but also control of education and choice of religion and the powers to withhold consent to marriage and the right to administer the child’s property.98 Included were such other rights as to determine place of residence, choice of health services, travel and the right to withhold consent to a subsequent adoption. They also acquired the duties of guardianship which included the duties of maintenance, protection, control and provision of appropriate medical care. Excluded to a large extent were rights of inheritance: the common law resolutely protected the traditional rules of inheritance governing the devolution of property from birth parent to child; not until statutory law intervened, to confer a presumption of equal entitlement on all ‘children of the family’, were adopted and birth children assured of equal inheritance rights. Since the introduction of the Children Act 1989 and the displacement of the concept of 96 The

Adoption and Children Act 2002, s 92(3)-(4). CH 320. 98 See, Eekelaar, J., ‘What are Parental Rights? ’ [1975] 89 LQR 210 and Hall, ‘The Waning of Parental Rights’ [1972] CLJ 248. 97 [1949]

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parental rights and duties by that of ‘parental responsibilities’, the authority vested in the adopters has been best understood within the meaning statutorily ascribed to the latter term. From the outset the courts had some difficulty in accommodating the piece of legal fiction that purported to place a child in exactly the same relationship to ‘strangers’ as he or she would otherwise have stood in relation to their birth parents. The judicial resistance towards accepting the legislative intent was evident in relation to matters such as inheritance and succession rights while legislation continued the exemption extended to an adopted brother and sister from the laws relating to incest. In more modern times it is evident in the increasing practice of adoption orders being accompanied by orders for contact. Initially, there was a presumption that a clean and absolute break between the child and the birth parent/s was a natural and essential part of U.K. adoption practice. A meaningful parent/child relationship being judicially viewed as vitiating the welfare ground for an adoption order: adoption and continued contact being seen as mutually exclusive. Since the introduction of the 1976 Act, however, the U.K. courts99 have been able to issue other orders to accompany an adoption order which have the effect of conditioning the latter’s traditional absolute nature. Most usually this occurs where a pre-adoption relationship exists between the child and a birth parent or sibling, constituting a psychological bond the continuance of which would have a meaningful significance for promoting the post-adoption welfare of that child. This is very often the case in family and child care adoptions where the child concerned is likely to be older and thus to have had the opportunity to form such relationships. In such circumstances, when satisfied that to do so would further the welfare of the child and could be enforced, the courts are now more willing to issue a contact order to run alongside the adoption order.100 The flexibility permitted by the introduction of contact orders under the Children Act 1989, together with the practice of facilitating more ‘open’ adoptions and the concern expressed about step-adoptions, has led to the present position whereby perhaps a majority of adoptions (and virtually all child care adoptions) now accommodate some level of ongoing contact between the child and at least one member of their birth family. This development was accelerated by the requirement under the Adoption and Children Act 2002, s 46(6), as reinforced by the 2006 Act, that the court before making an adoption order should consider whether contact arrangements need to be made in favour of any person (see, further, Sect. 6.10.1.1).

99 See,

in England and Wales, s 12(6) of the 1976 Act and in Northern Ireland, Article 12(6) of the 1987 Order. Note that in Northern Ireland a birth parent also had the right to add a condition of their own volition; the right to determine their child’s the religion in which their child was to be brought up (Article 16(1)(b)(i). 100 See, Re C (A Minor) [1988] 1 AER 712h.

1.6 Legal Context: Evolution of a Modern Statutory Process

1.6.3.4

37

Human Rights

The latter requirement—that adoption should accommodate contact between birth family members and adoptee, where this was considered conducive to the latter’s welfare—was only one indicator of the broad impact that a new human rights awareness was having upon adoption as it had been traditionally known to the law. The former exclusive controls of adopters were gradually undermined by a new judicial attentiveness to principles of ‘cultural affirmation’ of ‘private life’ and of a right to an authentic independent identity. Arguably, the role of the state is also being slowly reconfigured from one of impartial broker and regulator of standards to one of: advocate and active supporter for children’s rights; and provider of such ongoing services as may be necessary to facilitate the transformation of a child in need into an independent self-determining adult.

1.6.4 Contract or Gift Relationship As Hollinger has noted101 : A key element in debates about how adoptive families are constituted is the claim that the transfer of a child to an adoptive parent is a ‘gift’, a gratuitous transfer, analogous to a testamentary bequest or the donative deeding over of real property. Birth parents are said to “bestow” their child directly upon the adoptive parents, or to “surrender” them to child-placing agencies.

This is supported by pointing to the traditional prohibition, ingrained in adoption law, against any activity that could be construed as ‘trafficking’: the ‘solicitation’ of children is deplored; no money or other valuable consideration is to be paid in exchange for a child or for the consent of a birth parent; no intermediary or agency is permitted to ‘sell’ a child or make undue profits from facilitating placements. While this presents a good case in support of the relationship being based on ‘gift’ rather than contract, she rightly adds that in practice “the notion that adoption is not contractual is so powerful that it obscures the extent to which bargaining is intrinsic” to the relationship. Agency payment for all antenatal care costs, for example, has become a fairly standard element in the agreement between it and relinquishing unmarried mothers, stepparents will often agree to forgive the child support arrears of a noncustodial parent in exchange for that parent’s consent to the adoption, while adoptive parents may pay, and agencies and private intermediaries may charge, for adoption– related expenses, including legal and counseling fees. She poses the question—to what extent should bargaining about financial and other aspects of an adoption be allowed to tarnish the notion that adoption is a gratuitous transaction? In the U.K.,

101 See, Hollinger, J.H., Adoption Law and Practice, vol. 1, Matthew Bender Co., Lexis-Nexis, New

York, 1988–2005.

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this question must be considered within a context that includes local authority postadoption allowances paid to many, if not most, adopters throughout the upbringing of the child they adopted child from the care system. It must also be acknowledged that not all share the view of adoption as a gift relationship. There are those who suggest there is justification for viewing it instead as the creation of one family through the dispossession or destruction of another.102 The adoption transaction attracts much contention.

1.6.4.1

Public Services

Arguably, the current intensive involvement of expensive professionals—primarily social workers and lawyers—in the adoption process has served to emphasise its essentially contractual nature. Moreover, as the proportion of child care adoptions grow, so does the public service dimension. While this is most obvious in respect of the financial and other forms of state support provided for the adoption of children with ‘special needs’ there is a growing acceptance of the need for post-adoption, ongoing, professional support to be available to all parties involved in any adoption.

1.7 Conclusion Adoption is the most radical of all family law orders. No other order so fundamentally changes the legal status of its subject on a lifetime basis. Its effect is to re-write the relationships between three sets of legal interests with implications for the wider family circles of those involved, the consequences of which will be felt by subsequent generations. Many different societies and the same society at different times, led by the changing motivations of adopters, have shaped adoption to fit the needs of its particular cultural context. In the U.K., adoption is now a creature of statute. This was not always the case. The common law legacy, with its concern to uphold the legal autonomy and privacy of the marital family unit, defend traditional patriarchal social values, and its attention to matters of status, left its mark on the evolving statutory process. Many years later the basic constituent parts of the adoption process remain, to a large extent, as introduced by the first statute. Those recognised as parties, the main governing principles, the elements of their contractual relationship and the effect of an adoption order on their status are all essentially as initially defined. However, the balance then struck between the public and private interests is now undergoing significant change. The key component in triggering this re-balancing has been the welfare interests of the child. 102 See:

Briggs, L., Somebody’s Children: The Politics of Transnational and Transracial Adoption, Durham, NC, Duke University Press, (2012); and Högbacka, R., Global Families, Inequality and Transnational Adoption: The De-Kinning of First Mothers, London, Palgrave Macmillan, (2016).

1.7 Conclusion

39

Traditionally, in this jurisdiction, the welfare factor has not played a particularly prominent role in adoption; a point most poignantly demonstrated by the circumstances giving rise to The Lost Children of the Empire.103 Adoption has never quite shed the political ambivalence that accompanied its eventual arrival onto English statute books, long after the introduction of equivalent legislation elsewhere, because of a reluctance to allow the welfare interests of a child to override all other concerns. This may have been due in part to residual considerations relating to status as evidenced by the continuing attention given in law to matters such as rights of inheritance, implications for rules governing immigration and the locus standi of an unmarried father. Until very recently ‘welfare’ in law has tended to be treated negatively; the court confining its considerations to ensuring that no consequences adverse to the child’s welfare were likely to ensue as a result of it making an adoption order. For several decades104 the judiciary tenaciously resisted suggestions that the paramountcy principle should have any bearing on the outcome of the adoption process. Overall, this approach was not inappropriate when adoption was almost exclusively a private family law proceeding in which, typically, the care of a voluntarily relinquished child had been assumed by unrelated, agency approved and supervised, adoption applicants. Then, the three sets of needs and legal interests neatly dovetailed and the social construct of adoption fitted well with contemporary circumstances. However, in recent years the triangular relationship of legal interests had become very lopsided. The number of children compulsorily removed had not only vigorously outgrown the number voluntarily relinquished from parental care but were accompanied by a parental veto preventing adoption. The number of prospective adopters unable to adopt an unrelated child from within the jurisdiction had also grown. In a social context where birth control, serial parenting and transient family relationships had radically altered the previously prevailing norm—of marital, monogamous and nuclear family units—adoption practice was in danger of being redefined largely as an expedient adjunct to marriage or remarriage. In particular, the part played by maternal choice was steadily narrowing the role of adoption in the U.K. Having emerged from under a patriarchal shadow, the legal functions of adoption continued to be manipulated to meet the needs of adults. By the turn of the twenty first century, the U.K. government was faced with the needs of large numbers of children failed by parental care, a judiciary concerned 103 See,

Bean & Melville, op cit. for example Re D (An Infant)(Adoption: Parent’s Consent) [1995] 1 FLR 895 where Wall J remarked that it is “… logical that a different test needs to be applied to the making of an order which extinguishes parental rights as opposed to one which regulates their operation” at p. 898. A view endorsed by the DoH in its Review of Adoption Law 1992 at para 7.1. Note also Re W (An Infant) [1971] AC 682 where Hailsham LJ remarked that “ welfare per se is not the test” endorsed by MacDermott LJ in the same case “…the mere fact that an adoption order will be for the welfare of the child does not itself necessarily show that a parent’s refusal to consent to that adoption is unreasonable” at p. 706. More recently, however, perhaps in response to decisions of the ECHR, the judiciary in this jurisdiction had begun to demonstrate a willingness to recognise that the paramountcy principle could have a bearing on consent issues.

104 See,

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to protect established precedents in the law of adoption from being undermined by the paramountcy principle and by practice developments that threatened to entirely privatise the future use of adoption. A new policy was formulated to redefine the social construct of adoption so that it better addressed the imbalance in the triangular relationship of legal interests between child, birth parent/s and adopters. This found expression in the assertion of the paramountcy principle as the over-riding consideration in the adoption and children statutes of 2002, 2006 and 2014. Then, as a new human rights awareness was brought to bear on the roles traditionally legally assigned to the parties, so the whole adoption equation began to change.

Chapter 2

The Changing Face of Adoption

2.1 Introduction The role of adoption in contemporary western society is quite different from any of its historical manifestations as outlined in the previous chapter. This reflects the nature of changes in the related cultural context. From its historical role in fairly closed societies with their well defined boundaries, structured roles and ordered social relationships, adoption has now adapted its functions in relation to the needs of nuclear impermanent family units within a more fluid cosmopolitan society. Modern forms of adoption very much reflect the characteristic pressures on contemporary family life in western society. This chapter considers the role and functions of adoption against the context of unfolding social change in the United Kingdom, with a particular emphasis on recent developments in England and Wales. It begins with a broad review of modern adjustments to the traditional form of adoption. This includes a focus on the nature of change to the process as it becomes more ‘open’, accommodates a greater variety of children than formerly and responds to pressure from changes in the approach of adopters. It examines the causes of such adjustments and their consequences for the adoption process and for the roles of each of the parties. The chapter then deals with each of the three main types of modern adoption: family adoptions, agency adoptions and intercountry adoptions. It identifies the different permutations that constitute each type, provides statistical data to reveal the nature and extent of trends in their use and assesses the capacity of each to promote the welfare interests of the children involved. In particular, it considers child care adoption: as Baroness Hale has pointed out, the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.1 Because adoption must also be viewed in the context of other options for securing the welfare 1 See, Down Lisburn Health and Social Services Trust and Another v. H and Another [2006] UKHL

36, at para 34.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_2

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interests of children it is necessary to trace the modern policy developments that now result in increased numbers of children subject to care orders being placed for adoption. This chapter concludes with a brief overview of contemporary models of adoption so as to contrast contemporary U.K. experience with that of other nations.

2.2 Modern Adoption Trends in the United Kingdom A sense of perspective is needed in relation to adoption. Far fewer adoption orders are now made than at any time in the history of this statutory process. While all other family law proceedings continue to generate ever more litigation, adoption continues its steady decline. Adoption has greatly changed since the Adoption Act 1926 first placed this process on the statute books of the United Kingdom. This has not been due to government policy; despite the best endeavours of Houghton and others.2 In the post-world war period through to almost the very end of the twentieth century, while U.K. society underwent fundamental economic, cultural and other changes, there were virtually no policy led or formative legislative initiatives to adjust the functions of adoption. Not until the turn of the century did law and policy begin to catch up with practice developments occuring in response to pressures on the family. These changes have been gradually distorting the original functions of adoption.

2.2.1 From Traditional Model to Modern Variants The traditional form of adoption in the U.K. is dying out. Third party adoptions of healthy babies, voluntarily relinquished by birth parents resident and domiciled within the jurisdiction, most probably have no future. This form accounted for the majority of the 875,000 children adopted in England and Wales since 1926. Following a steady rise in total annual adoptions between 1927 and 1968, when they peaked at 24,831, they have declined consistently every year throughout the remainder of the twentieth century, reaching 4387 in 1998.3 However, annual trends in recent years have fluctuated somewhat: from 4740 in 2011 to 5206 in 2012 dropping to 3570 in 2018 from a high of 5360 in 2015 (see, further, Sect. 6.3.3.2). Interestingly, the largest fall since 1998 occurred between 2005 and 2006 when special guardianship orders were introduced and probably diverted many potential adopters. The hallmarks of this type, which have endured for most of the statutory lifetime of the process and now colour our expectations of how adoption should be defined, are also fading. It was very much a private family law and ‘closed’ process, almost 2 See, the Houghton Committee, Report of the Departmental Committee on the Adoption of Children

(Cmnd 5107), 1972 which followed on from the report of the Departmental Committee on the Adoption of Children Working Paper (HMSO), 1970. 3 See, the Dept of Health annual statistics.

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always consensual, involving a healthy baby with cultural affinity to the adopters, conducted confidentially usually by voluntary adoption societies and with guarantees of post-adoption secrecy. The underpinning legislative intent was to facilitate a neatly matching set of needs: relieve birth parents of responsibilities they did not want; provide a means for children to be ‘legitimated’; and enable a marital couple to make arrangements for the inheritance of family property. Reflecting the patriarchal values and status considerations of the late Victorian era, the traditional form of adoption primarily served to reinforce conformity to socially acceptable standards represented by the marital family unit. This has now given way to new forms of adoption which have brought with them possibilities for re-interpreting the process and clarifying its functions.

2.2.1.1

Open Adoption

The assumption that the traditional ‘closed’ model of adoption is wholly compatible with the welfare interests of the child has faded in recent years. That approach was rooted in an approach to child development that maintained the importance of allowing a child to form attachments within a clear and consistent set of relationships free from ambiguity. Any proposed ongoing involvement of members of the child’s family of origin was viewed as introducing complicating and confusing factors that might threaten the new and vulnerable family unit. It was also considered likely to impose unnecessary stress on the birth parent/s, who needed to come to terms with their loss, and on the adopters who very often wanted to close the door on the facts and relationships associated with the birth history of ‘their’ child. A clean break and a new start were seen as being in the best interests of all parties. In recent years, however, research has indicated that adoption arrangements which accommodate a degree of ongoing involvement from members of the child’s birth family have been viewed as successful by the parties concerned. In particular, it has been demonstrated that an adopted child has the capacity to make sense of such a relationship framework and form the attachments necessary to ensure healthy emotional development. Indeed, the tone of research into the need of an adoptee to develop secure attachments and build an authentic sense of identity strongly suggests that such arrangements are crucial.4 Increasingly, an adoption that allows for such degree of ‘openness’ as is compatible with the comfort levels of all parties is now viewed as being in the long-term perhaps healthier and more honest than the traditional closed approach; given the prevailing transparency of the current social context. That arrangements between the parties should be made and maintained in secrecy, and information disclosure relating to identity kept to a minimum, now contravenes principles well established in international Conventions and case law. 4 See,

for example, Vernier, N., The Primal Wound: Understanding the Adopted Child, British Association for Adoption and Fostering, London, 2009. In this book the author refers to the “primal wound” as: … the devastation which the infant feels because of separation from its birth mother. It is the deep and consequential feeling of abandonment which the baby adoptee feels after the adoption and which may continue for the rest of his life.

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The practice of openness5 is usually associated with family adoptions, where access to information relating to origins and identity is most likely to be readily facilitated. In child care adoptions, however, which often involve older children, it has been embraced as an unavoidable necessity unless there is good reason for secrecy such as a background of child abuse or domestic violence.6 As has been observed, adoption practice reflects social, political, economic and moral changes and the move towards openness in adoption is in keeping with a general trend towards more openness in society.7 Open adoption is an elastic concept that has been defined by Brodzinsky and Schlechter as follows8 : The practice of open adoption begins with the first contact of both the prospective adoptive parents and the birth parents. It is discussed as an integral part of agency procedure in the adoption of all children. Open adoption is a process in which the birth parents and adoptive parents meet and exchange identifying information. The birth parents relinquish legal and basic child rearing rights to the adoptive parents. Both sets of parents retain the right to continuing contact and access to knowledge on behalf of the child. Within this definition, there is room for greater and lesser degrees of contact between the parties. The frequency and meaning of the communication will vary during different times in the lives of the individuals involved, depending on their needs and desires and the quality if the established relationship.

The concept, and increasingly the practice, of openness brings with it the challenge that if the content of adoption is to be so radically transformed then perhaps the legal form that has housed the traditional interpretation of adoption should also be similarly transformed? Is the complete and permanent severing of the birth parent/s rights and duties in relation to their child, coupled with the equally exclusive vesting of such responsibilities in the adopters, now strictly necessary?

2.2.1.2

Step-Parent Adoption9

The attraction of a means whereby a second partner, who has all the day to day care responsibilities but none of the rights in respect of their spouse’s child from a previous relationship, may acquire with the latter exclusive parental rights, has been and continues to be a frequent motive for adoption. A wish to ensure inheritance rights can also be a factor. This step-parent use of adoption had not been within the contemplation of initial legislators. As marriage becomes less popular and less durable and parenting arrangements more fluid so an adoption order has come to be regarded as a useful authority for 5 See,

for example, Triseliotis, J. , Open Adoption: The Philosophy and the Practice, 1970. for example, Gunn—Russo v. Nugent Care Society and Secretary of State for Health [2001] EWHC Admin 566, [2002] 1 FLR 1 [2001] UKHRR 1320, [2002] Fam Law 92, QBD. 7 See, Grotevant, H. and McRoy, R., Openness in Adoption, Sage Publications, USA, 1998, at p. 196. 8 See, Brodzinsky, D. and Schechter, M., The Psychology of Adoption, Oxford University Press, USA, 1990 at p. 318. 9 In the last years of the 1976 Act, some 50% of adoption applications were from step-parents. Under the 2002 Act, such applicants will be directed towards a Parental Responsibility order/agreement as an alternative to adoption. 6 See,

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bolting the door behind a re-formed family unit to the exclusion of previous and now inconvenient relationships.10 It may also, of course, signify to the child concerned that both birth parent and spouse are wholly committed to making him or her as much a part of the new family unit as is legally possible. It was in response to the draconian effects of an adoption order on the marginalised birth parent and their family, together with a concern regarding the propriety of birth parents applying to adopt their own children, that the legislature made available such alternatives as residential orders, parental rights orders and most recently special guardianship. All of which have failed to distract step-parents from continuing to view adoption as the preferred option.

2.2.1.3

Adoption of Children with Complex or Special Needs

The term ‘special needs’ is used inconsistently. In the U.K. it has been most usually used in reference to children and others with learning difficulties. In the U.S. it refers to all children for whom, for whatever reason (e.g. older, with behaviour problems, with health care needs or members of sibling groups), it may be difficult to identify an adoption placement (see, further, Sect. 8.2.2.1). Practice in the U.K., particularly in the context of Adoption Panel determination of eligibility for adoption allowances, is now moving towards acceptance of the U.S. definition. Again, in all western societies, the reduction in the number of indigenous healthy babies available for adoption has led to adopters broadening their outlook. This has been matched by a commensurate change in the factors governing the availability of children, particularly babies. Previously, the few children with complex health care or special needs, unwanted or inadequately cared for by their birth parents, would have been consigned to long-term institutional care. Due to the advances made in medical sciences, many more vulnerable children are surviving and may need an intensity of care well beyond the abilities of ‘average’ parents. Some such children are now often successfully placed for adoption; most often with ongoing professional and financial support.

2.2.1.4

Adoption of Children Born as a Result of Assisted Conception

The introduction of techniques of artificial insemination and the practice of surrogate motherhood have injected a new dimension into adoption—often simply being an alternative—as it has been traditionally understood. This development is very recent: although in vitro fertilisation treatment (IVF) emerged in the 1970s, it was only in 2010 that the Nobel Prize was awarded to Robert Edwards for his work in this area. While the long term implications of his breakthrough remain a matter of conjecture,

10 See,

Utting (1995) who noted that 40% of marriages end in divorce, 20% of families are headed by a lone parent and 8% of dependent children live in step-families.

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IVF treatment has already resulted in many children becoming available for adoption by private arrangement. Surrogacy For some this new form of ‘adoption to order’ has given rise to ‘surrogacy tourism’ as prospective adopters shop among the less developed nations and among the socially disadvantaged in the developed western nations for the best deal available. Surrogacy in particular is not without its problems and many court cases have been generated by the withdrawal of consents freely given before birth of the children concerned.11 The gravity of concerns regarding the legal and ethical issues involved has resulted, according to a 2010 EU report, in surrogacy being banned in France, Austria, Switzerland, Sweden, Norway, Italy and Bulgaria. If surrogacy is not followed by adoption then the legal and social consequences are particularly complex: neither commissioning parent has any legal rights and responsibilities in relation to the child they are raising, even though the father’s name may be registered on the birth certificate; difficulties can arise when the parents enroll their child at school, apply for a passport for the child, or consent to or refuse medical treatment on the child’s behalf; problems can also arise if the parents separate and there is a dispute over the care and upbringing of the child; and it may be confusing and embarrassing for children to have their surrogate mother named on their birth certificate rather than the person they recognise as their mother. Surrogacy in any event will always give rise to concern for the child’s long-term sense of identity and their rights of access to information (see, further, Sect. 23.5.5).

2.2.1.5

Intercountry and Transracial Adoptions

The acquisition of a child in one jurisdiction by citizens, resident and domiciled in another, who either adopt the child in his or her country or return with the child and initiate adoption proceedings, is neither a recent nor an unusual phenomenon. For perhaps the last 50 years there has been a flow of children from less developed countries into the homes of adoptive couples in western Europe; particularly, from the Philippines and South America towards Scandinavia.12 However, this is no longer an occasional occurrence. The inward flow of children from foreign countries to domestic adopters is now proportionately more significant. There is a clear correlation between intercountry adoption and child care adoption: nations with a high rate of dependency on the former will also have low rates of availability via the latter; while social class (intercountry adoption is expensive), racial bias (white Caucasian prospective adopters tend to look towards Russia, Romania and eastern Europe rather 11 See, Re MW (Adoption: Surrogacy) [1995] 2 FLR 789 where the court dismissed a surrogate mother’s opposition to an adoption application by commissioning parents in respect of a child who by then had been in the applicants care for two-and-a-half years. 12 See, for example, the account of 20 years of such experience in Dalen, M. & Saetersdal, B., ‘Transracial Adoption in Norway’, Adoption & Fostering, Vol 2, no. 4. 1987. Also Ngabonziza, D., ‘Inter-country adoption in whose best interests’ Adoption & Fostering, Vol 2, no. 1, 1988.

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than to Africa for children), a resistance to openness (post-adoption contact with birth family members is for some an unwanted extra) and a preference for babies also play their part (see, further, Part III). This international phenomenon is impacting upon a wide range of countries, involving the annual movement of many thousands of children and is regulated by a Convention drawn up at the Hague Conference on Private International Law in 1993. This Hague Convention has been given effect in the U.K. by the Adoption (Intercountry Aspects) Act 1999 and has been largely incorporated into the Adoption and Children Act 2002 (see further, Chaps. 5 and 6). It has been further reinforced by international provisions to prohibit child ‘trafficking’. Intercountry adoptions are often transracial, some of the rationale and many of the same tensions prevail in both,13 and can give rise to identity issues for children removed from contexts of family, kinship, language and culture to be reared in a foreign ethnic environment. In England and Wales, the wisdom of having any formal policy on transracial adoptions—whether to promote or discourage—has been questioned.14 The Local Authority Circular Adoption—Achieving the Right Balance, although not dealing with intercountry adoption, addressed this controversy and concluded with the advice that whereas good practice should always seek to achieve sensitive racial and cultural matching this must remain conditional upon any such match being wholly in the best interests of the child concerned.15

2.2.1.6

Trafficking

The ‘migrant crisis’ impacted upon all western developed nations in the years 2015– 17. Included within it was the phenomenon of the ‘unaccompanied asylum-seeking child’. In England, as elsewhere in western Europe, this period saw a considerable rise in the numbers of such children being looked after by local authorities. By 2018 there were 4480, a slight fall from the previous year but still representing around 6% of the total looked after population. Against such a chaotic background, the possibility of some degree of trafficking in children cannot be discounted (see, also, Sect. 5.7.4.6).

13 See,

Murphy, J., ‘Child Welfare in Transracial Adoptions: Colour-blind Children and Colourblind Law’ in Murphy, J. (ed) Ethnic Minorities—Their Families and the Law, Hart Publishing, Oxford, 2000. 14 See, for example, Tizard and Phoenix (1989) who found that transracial placements are not necessarily damaging experiences for the children concerned. 15 See, Department of Health, LAC 20, 1998. Also, see: Harris, P. (ed.), In Search of Belonging: Reflections by Transracially Adopted People, BAAF, 2006; and Hall, B., Inside Transracial Adoption (2nd ed.), Jessica Kingsley Publishers, 2013.

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2.2.1.7

Single Adopters

Adoption has naturally reflected the traditional archetypal family model by catering almost exclusively for applications from married couples. In recent years, again in keeping with prevailing family models, there has been a small but noticeable increase in the number of single adopters. Such applicants may well offer the best chance of furthering the welfare interests of a child in care: perhaps, in particular, a child who requires a one-to-one relationship due to attachment or health issues. In 2012, a total of 300, or 8% of all U.K. adoption orders, were in favour of single applicants but by 2019 the numbers were 430 and 12% respectively.

2.2.1.8

Same Sex Adopters

The 1976 Act was silent on the prospect of adoption by a same sex couple; it simply was not within the ambit of legislative intent. Indeed, not until very recently would a household consisting of a same sex couple be construed as coming within the legal definition of ‘family’.16 The possibility of adoption by a single person, however, was and is provided for; the earlier statutory prohibition on adoption of a female child by a single adult male having been removed. An adoption application by a single homosexual male or lesbian, where the applicant is living with a partner of the same gender, has therefore for some time been legally possible17 but not until recently has it become professionally and socially acceptable. The most comprehensive recent review of related literature by Stacey and Biblarz concluded18 : Because every relevant study to date shows that parental sexual orientation per se has no measurable effect on the quality of parent-child relationships or on children’s mental health or social adjustment, there is no evidentiary basis for considering parental sexual orientation in decisions about children’s “best interests.” In fact, given that children with [lesbian or gay] parents probably contend with a degree of social stigma, these similarities in child outcomes suggest the presence of compensatory processes in [these] families.

Judicial notice has been taken of research findings indicating that child rearing by same sex couples has not disadvantaged the children concerned.19 This has led to the current position where judgments emphasise that providing such applicants satisfy 16 See, Fitzpatrick v. Sterling Housing Association Ltd

[2001] 11 FLR 271 where the House of Lords ruled that a settled homosexual relationship did constitute a ‘family’ for the purposes of the law relating to landlord and tenant. 17 See, for example, Re E (Adoption: Freeing Order) [1995] 1 FLR 382 where the Court of Appeal, albeit reluctantly, approved the placement of a girl with a single lesbian adopter. 18 See, Stacey, J. and Biblarz, T., ‘Does the Sexual Orientation of Parents Matter?’ 66 American Sociological Review, 159, 176 (April 2001). 19 See, for example: Golombok, S., ‘Lesbian Mother Families’ in Bainham, A., Day Sclater, S. and Richards, M. (eds.) What is a Parent? Hart Publishing, Oxford, 2000; Patterson, C.J., Children of Lesbian and Gay Parents (1991); Polikoff, This Child Does Have Two Mothers, 78 Geo. L. J. 459 (1990); and Rupp, M. (ed), The Life of Children in Same-sex Partnerships, the German Ministry of Justice, Cologne, 2009.

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the welfare test then their sexual orientation is of little relevance. So, for example, in AMT (Known as AC) (Petitioners for authority to adopt SR),20 where the subject was a three year old boy and the applicant a male homosexual living with a long-term male partner, the court granted an adoption order. Again, in Re W (Adoption: Homosexual Adopter),21 an application for a freeing order was unsuccessfully opposed by the birth mother, objecting to a local authority placement of her child with two lesbian women, who intended to adopt. Although, as a corollary, it is worth bearing in mind that a birth mother may see a unique value in consenting to a proposed adoption by a male couple as this preserves her role as the child’s only ‘mother’. Both scenarios, of course, equally distract from the primary consideration of what arrangement is best suited to promote the needs of the child concerned. These judgments, which brought adoption practice more into line with the realities of modern family life, prepared the ground for legislative change. In 2012, 160 adoption orders, or 4% of the U.K. total, were issued in favour of same sex applicants rising dramatically in 2019 to 14% (490) of the 3570 orders made in respect of looked after children22 (see, further, Sect. 6.2.2.1).

2.2.2 Causes of Change The structured homogeneity of late Victorian England has given way to a more fluid, multi-cultural society with permeable boundaries. Family life is now much less likely to be based on marriage, is more impermanent with serial parenting and shared care arrangements not uncommon. It is likely to take the form of a self-reliant fairly mobile nuclear unit, unlikely to be reinforced by an extended kinship network nor by community links and probably transient in nature as families relocate in pursuit of employment opportunities. Against this background the welfare interests and indeed the rights of the child have steadily acquired a more defined salience. This has been partly a consequence of increased knowledge of child development, particularly in relation to theories of attachment and bonding as attested to by a considerable body of research on outcomes for looked after children. It is also attributable to the general withdrawal throughout family law from a defence of the status determined obligations of adults (e.g., marriage) to upholding the principle that the welfare interests of children must prevail in any set of circumstances and to the adjustments necessary to make adoption more human rights compliant.

20 [1997]

Fam Law 8 and 225. 2 FLR 406. See, also, Re E (Adoption: Freeing Order) [1995] 1 FLR 382. 22 See, further, at: https://corambaaf.org.uk/fostering-adoption/looked-after-children-adoption-fos tering-statistics/statistics-england. 21 [1997]

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2.2.2.1

Advances in Medical Science

Advances in medical science have allowed parenting to become more a matter of choice, mostly to be exercised by women. Birth control and abortion services have clearly affected the number of unwanted births and therefore the number of birth parent/s wishing to voluntarily relinquish their babies. As mentioned above, medical science has also greatly improved the survival rate for babies born with complex health and social care needs resulting in more such children becoming available for adoption. Improvements in Techniques for Assisting Conception Improved techniques for assisting conception (AID, GIFT etc.) and for facilitating surrogacy arrangements have had profound implications for the adoption process. Surrogacy Surrogacy has been judicially defined as “an arrangement whereby a woman (the ‘surrogate mother’) agrees to conceive and bear a child, which she intends to another or others (the ‘commissioning couple’ or the ‘commissioning husband’ and ‘commissioning wife’) upon the child’s birth”.23 This arrangement may proceed either on a commercial basis which includes a fee, or on an altruistic basis where any payment is restricted to the reimbursement of medical and other expenses. Most nations permit the latter but not the former. In either case it is usual to legally secure parenthood by adopting the child. Among the problems associated with surrogacy is that the information the child receives will be entirely at parental discretion with resulting crucial implications for the development of his or her identity and cultural affiliation: due to the anonymity surrounding the use of genetic material a child may never know their true genetic origins. More immediately, as has been pointed out, there may be questions as to the child’s parentage and nationality24 : Often commissioning parents may not be recorded on the birth certificate of the surrogate child. This can create difficulties in obtaining passports and travel documents for the child, to enable him or her to accompany the commissioning parents home. If parentage and nationality cannot be established there is the potential that the child may be left “marooned, stateless and parentless”.25

2.2.2.2

Welfare Benefits

Birth parents who choose to provide ongoing care for their child, unlike their predecessors in the more traditional form of adoption, now have access to the range of 23 Lowe

& Barry and Anor [2011] FamCA 625 at para 5. Pascoe, CJ. , ‘Issues of Forced Adoption and International Commercial Surrogacy, Federal Court of Australia, Melbourne (2nd October, 2013) at: http://www.law.monash.edu.au/about-us/eve nts/chie-judge-pascoe-dpeech-notes.pdf. 25 See, Re X & Y (Foreign Surrogacy) [2009] Fam 71 at 76C. 24 See,

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welfare benefits and public services necessary to undertake and sustain that parental role. This—together with the fading of the social stigma previously associated with that role, access to contraceptives and the growth in equality of employment opportunities—has transformed the relationship between unmarried mothers and the adoption process.

2.2.2.3

Failed Parenting

Failed family life is becoming more evident as the child care population increases and media reportage of child abuse becomes commonplace. The ever-growing number of child abuse inquiries and paedophilia scandals have generated a level of public concern that is causing governments everywhere to formulate new policy initiatives. The failure of community care programmes to provide adequate support for the mentally ill, for those suffering from learning disability, for drug abusers and for refugees has exposed many children to situations of neglect and abuse (see, further, Part III). There is now a recognition that new measures need to be taken to provide both a better level of child protection26 and also safe and permanent alternative care arrangements for children failed by parental care. A measure of the scale of failed parental care is provided by judicial statistics which show the number of children involved in public law applications made by local authorities jumping from around 20,000 in 2008 to almost 26,000 in 2009, and subsequently to 29,500 in 2011, after which they stabilised until late 2015. Since then there has been a steady increase, such that by 2019 there were nearly 36,000 children involved in public law applications.27

2.2.2.4

Child Development Knowledge

Contemporary knowledge of child development—of what promotes or obstructs healthy physical and emotional growth and of what constitutes the welfare interests of a child—is at a much more advanced stage than in the era of traditional adoption. The importance of ‘nurture’, physical and emotional, of ‘bonding’ between child and a significant carer, in contributing towards a child’s well balanced psycho-social

26 See, the Department of Health, The Victoria Climbie Inquiry (‘the Laming Report’), the Stationary

Office, London, 2003. Also, Ward, H., Brown, R. and Westlake, D., Safeguarding Babies and Very Young Chiildren from Abuse and Neglect, Jessica Kingsley, 2012. 27 See, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_d ata/file/875005/Guide_to_Family_Court_Statistics.pdf.

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development have been extensively researched and are now accepted as key concepts in child rearing practice.28 Attachment Theory It was ‘attachment theory’,29 more than any other aspect of modern child development knowledge, impacting upon child care policy and practice that in turn caused a strategic change in professional attitudes towards the adoption process. Attachment theory suggests that the future psychological wellbeing of every child is dependent upon their experiencing an intimate one-to-one relationship with a caring adult for a crucial period during their formative early years. The corollary being that this opportunity can be missed, as when a child moves through a series of short-term care arrangements, leaving him or her psychologically stranded or in limbo. As Wilkes notes30 : The unfortunate outcome for many children in limbo is that they become ‘attachment resistant’. Such children pose significant problems for their caregivers, and they consume an inordinate amount of professional time and expertise.

It was attachment theory, bringing with it an acute awareness of the costs for the emotional wellbeing of each child and for the child care system as a whole, that gave rise to ‘permanency planning’ (see, further below). Adoption, inevitably, came to be seen as the permanency option that offered the most secure legal solution to attachment issues.

2.2.2.5

Failed State Care

The years immediately prior to and following the introduction of the Children Act 1989, which brought with it the ‘partnership with parents’ principle’ was a period of professional emphasis on family reunification in which foster care rather than adoption was the preferred option for children neglected or abused by their families. This approach was typified by the declaration of Templeman LJ in In re KD (A Minor: Ward) (Termination of Access)31 that: 28 See, for example, Goldstein, J., Freud, A, and Solnit, A.J. Beyond the Best Interests of the Child, 1973 which promoted the ‘psychological parenting’ concept and where the point (contributing significantly to the rationale for permanency planning) is made that “Continuity of relationships, surroundings, and environmental influences are essential for a child’s normal development” (pp. 31– 32). 29 See, for example, Bowlby, J. Attachment and Loss, London, Hogarth Press, 1969 and Howe, D. et al., Attachment Theory: Social, Developmental and Clinical Perspectives, New Jersey, Analytical Press, 1999. Also, see, Harris, G., ‘The Human Life Cycle: Infancy’ in Davies, M. (ed.) The Blackwell Companion to Social Work (2nd ed.), Oxford, Blackwell (2003) at pp. 342–347 where Harris states that ‘in extended families, infants might form an attachment to family members other than the main care provider’ (p. 343). It is now accepted that an infant child is equally capable of forming an attachment to a male or female carer. 30 See, Wilkes, J.R., ‘Introduction’, in Permanency Planning in the Child Welfare System, Ottawa, Sparrow Lake Alliance: Children in Limbo Task Force, 2002 at p. 6. 31 [1988] 1 AC 806, 812.

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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 was a time when the failings of state care were becoming only too apparent; the failure of some public child care agencies to satisfactorily provide for the welfare of the children they had made the subject of care orders has been well documented.32 The effect of public care scandals, combined with the expense of state care and influence of the principle that family care is best, led to a period of intense research focused on evidence based practice to clarify what works best. The outcomes research33 for looked after children, together with attachment theory, suggested that once rehabilitation had been found to be impracticable then a local authority should institute permanency planning and that adoption rather than foster care was more likely to produce long-term beneficial outcomes for the children concerned. By the end of the twentieth century, the ‘permanency planning’ policy had become of central importance to local authority child care managers. This requires a plan to be drawn up for every child accommodated by a local authority showing how a safe sustainable placement is to be secured that will enable the child to form the attachment so necessary for his or her welfare (see, further, below).

2.2.2.6

Human Rights Awareness

As more nations signed and ratified a succession of international human rights instruments and registered the impact of evolving ECtHR caselaw (see, Chap. 4), so too did their domestic law—including that relating adoption—adjust to align with human rights principles. Principles of ‘equality’ and ‘non-discrimination’ began to erode residual rights of birth mothers to exercise control over matters such as placement choice, and over post-adoption matters such as religious upbringing and access to identifying information. The rights of unmarried birth fathers to be notified and heard in relation to adoption proceedings were legislatively and judicially asserted. Rights to ‘private 32 A

number of official inquiries reported on the capacity of the care system itself to permit and sustain a culture of child abuse. See, for example, Waterhouse, Lost in Care: Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974, (The Stationery Office, London, 2000). 33 The ‘outcomes research’, analysing and evaluating the care careers of looked after children, is comprised of many different reports compiled in the main from within the social work and allied professions. These include: Triseliotis, J. and Hill, M. Hard to Place—the Outcome of Adoption and Residential Care, Gower (1984); Thoburn, J. Captive Clients (1980); Milllham, S. et al., Lost in Care (1986); Rowe, J., Hundleby, M., and Garnett, L. Child Care Now—A Survey of Placement Patterns (1989); Farmer, E. and Parker, R. Trials and Tribulations (1991); Parker, R., Ward, H., and Jackson, S. et al. (eds.) Looking After Children: Assessing Outcomes in Child Care, London, HMSO (1991); Bullock, R., et al., Going Home (1993); Dept. of Health, Caring for Children Away from Home: Messages from Research (1998); Adoption as a Placement Choice: Argument and Evidence, The Maudsley (1999); and Broad, R. et al., Kith and Kin: Kinship Care for Vulnerable Young People (2001).

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life’, to an independent identity, to respect for cultural origins and to many other judicially developed aspects of human rights, began to unpick the formerly tightly construed contractual relationships between the parties to an adoption. Children’s Rights An important modern development in the law relating to children has been the relatively recent paradigm shift from a central concern for the protection of their welfare interests to one of asserting their rights. This is largely due to the weight of case law precedents established under Convention provisions (see, further, Sect. 4.4.7.4). One effect of this development is that in certain issues, such as disputes regarding contact or parental responsibility, judicial determination will proceed from the premise that the child has a right to whatever arrangement is most conducive to securing and promoting their welfare. A more general effect has been to centre stage children’s interests in all family proceedings; the law is now much more for children than about them. Nevertheless it remains the case, as van Bueren stated some years ago, that “children have a right under a variety of treaties to respect for family life, and to protection against unlawful interference with the family, but children, as with adults, understandably do not have a right to a family per se under international law.”34

2.2.3 Consequences for the Adoption Process Radical change in the use of adoption has necessarily impacted upon the process itself. There are now many more professional checks and balances35 (see, further, Sect. 3.2.3). In addition to administrative changes, the content of the process has also undergone a considerable transformation.

2.2.3.1

The Process

Provision for post-adoption support, information rights and reunification services has led to adoption becoming more ‘open’, less absolute, anonymous, taboo tainted and exclusive. It can no longer be viewed simply as a legal proceeding but must be seen as comprising a comprehensive package of adoption services, governed by statutory regulations and managed, administered and conducted by professionals. Perhaps one of the more obvious manifestations of the compromises made to the traditional process lies in the fact that it now most often accommodates ongoing 34 See, Van Bueren, G., The International Law on the Rights of the Child, Martinus Nijhoff Publishers, 1998, at p. 93. 35 The transformation of adoption practice from a patchwork of activities provided largely by voluntary societies to a comprehensive and professionalised adoption service provided in the main by local authorities dates from the recommendations of the Houghton Committee in Report of the Departmental Committee on the Adoption of Children (Cmnd 5107), 1972 at para 38.

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contact arrangements which are often set out in contact orders that accompany adoption orders.36 Where, for example, a relationship already exists between the child and a birth parent or sibling, which may constitute a psychological bond and thus in itself be a determining factor of welfare, then the courts may well see fit to direct contact arrangements when making an adoption order.37 In the past the existence of such a meaningful bond would have been judicially viewed as vitiating the welfare ground for an adoption order: adoption and continued contact being seen as mutually exclusive. Now, the two factors that determine whether a contact order (or any other order) should be issued in conjunction with an adoption order are the welfare of the child and enforceability.38 Generally, the new flexibility permitted by the introduction of contact orders under the Children Act 1989, together with the tacit encouragement offered to the practice of facilitating more ‘open’ adoptions and the concern expressed about step-adoptions, has led to an increasing number of adoption orders being made jointly with contact orders. Most usually, however, contact arrangements are informally negotiated by the parties concerned and do not require a court order. Another clear development is that the U.K. adoption process has come to accommodate a growing number of contested applications. A process, very largely consensual until the 1980s, has since become increasingly non-consensual as child care adoptions are contested and occasionally so also are family adoptions. Moreover, the modern adoption process no longer necessarily begins with an application for, nor ends with the making of, an adoption order. Pre-adoption counselling services are now available to all parties. In addition, the 1976 Act introduced the requirement that local authorities ensure the provision of an adoption service including post-adoption support services. Finally, following the introduction of adoption allowances in 1983, the process now allows for considerable state payments to be made to adopters; though these still compare unfavourably with foster care allowances. Local authority Adoption Panels will now, more often than not, recommend the payment of adoption allowances when approving the adoption placements of looked after children. As a consequence the pool of prospective adopters has broadened as foster parents and other carers have

36 Under s 12(6) of the Adoption Act 1976, the court was given the discretionary power to attach such conditions as it thinks fit to an adoption order. 37 See, Re J (A Minor)(Adoption Order: Conditions) [1973] Fam 106, per Rees J where it was first held that continued contact was not inconsistent with adoption. Also, see, the decision of the House of Lords in Re C (A Minor)(Adoption Order: Conditions) [1989] AC 1, HL where it was re-affirmed that there was a power to attach a condition where this was in the welfare interests of the child concerned. 38 See, Re C (A Minor) [1988] 1 AER 712h where both factors arose for consideration. However, also, see, Re S (Contact: Application by Sibling) [1998] 2 FLR where the court refused an adopted nine year old child leave to apply for a contact order enabling her to resume her relationship with a seven year old half brother with special needs who had been adopted into a different family. The application was resisted by the boy’s adoptive parents on the grounds that it would disrupt his life. The court held that the making of an adoption order was intended to be permanent and final and issues such as contact should not be considered after that event; except in the most unusual circumstances.

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opted for financially supported adoption as the preferred means of securing long-term care arrangements. However, the policy of ‘paying people to adopt children’ was controversial.39 It represented a significant shift in the approach of government to what had been regarded as a private area of family law where the motivation of adopters was expected to be altruistic, above reproach and untainted by considerations of fiscal recompense.

2.2.3.2

The Children

The profile of today’s typical adopted child is very different from the one traditionally placed for adoption. Then the process largely catered for healthy, indigenous, ‘illegitimate’, white Caucasian babies.40 Now, while there are far fewer babies,41 and of those many are likely to be from a different country and possibly from a different race than that of their adopters, the children adopted continue to be very largely from unmarried parents.42 The preponderance of family adoptions naturally raised the average age of children being adopted as did the increase in children adopted by their long-term foster carers; a trend that is now in reverse (see, further, Sect. 6.2.2). Child care adoptions—often accompanied by very necessary long-term financial, professional and other forms of support—have introduced many children to the adoption process with needs that would not have been within the contemplation of initial legislators. Most contemporary agency adoptions involve children 39 See, British Association of Social Workers, Analysis of the Children Bill, 1975, which states: It would be an intolerable situation if financial resources were made available to subsidise adoption when an allocation of similar resources to the natural parents may have prevented the break up of the family in the first place (at p. 22). Cited by Lowe, N., ‘English Adoption Law: Past, Present and Future’ op cit, at p. 330. In support of this approach it has to be noted that child care adoption is virtually non-existent in Denmark where the state heavily invests in the family support services necessary to keep vulnerable children at home. 40 In 1968, the peak year for adoptions in the U.K. and Ireland, one in five of all ‘illegitimate’ children were adopted in the former jurisdiction compared with four in every five in the latter. See, also, Bridge, C. and Swindells, H., Adoption: the Modern Law, Family Law, Bristol, 2003 where it is stated: By 1951, baby adoptions comprised 52% of all adoptions. By 1968 this proportion was even greater—amounting to 76% of all adoptions—and in the same year, 91% of all adoptions were of illegitimate children. Adoption of illegitimate babies had become the primary focus of adoption law (at p. 6). 41 In 1975, the proportion of children adopted aged 10 years or more was 19% whereas by 1987 it had grown to 27% but has since continued a downward trend falling from 21% in 1998 to 8.4% in 2012. Adoptions of children aged under 1 decreased overall from 4.6% of all adoptions in 1998 to 1.6% in 2011 before rising slightly to 2.2% in 2012. In contrast, the percentage of adopted children aged 1–4 has increased steadily since 1998 when they constituted 34% of the total to reach 63% in 2012. See, further, at: http://www.ons.gov.uk/ons/rel/vsob1/adoptions-in-england-and-wales/2012/ stb-adoptions-in-england-and-wales--2012-.html#tab-Adoptions-by-age-and-sex. 42 The percentage of adopted children, born outside of marriage, increased slightly to 85% in 2012, up from 82% in 2011.

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that are the subject of care orders, have some degree of ‘special needs’, whether suffering from a physical or learning disability, from a behavioral disorder or from ‘foetal alcohol syndrome’ and may be placed in sibling groups; none of which was envisaged by initial legislators. The views of the child concerned, age and understanding permitting, will now be sought in relation to their proposed adoption. For example, the decision of a court43 to dispense with parental agreement was significantly influenced by an 11 year old boy’s views on adoption. This judicial approach has been endorsed by an official recommendation44 that the court should not be allowed to make an adoption order in relation to a child aged 12 years or over unless that child’s consent has either been obtained or has been dispensed with. In Re I (Adoption Order: Nationality)45 the court attached considerable importance to the expressed consent of children aged 13 and 16 when approving their adoption despite opposition from the Home Secretary who submitted that the application was a sham intended to defeat immigration controls.

2.2.3.3

The Birth Parent/s

The single most radical consequence of modern changes for the adoption process is that adoption came to be used mainly for the opposite reasons for which it was initially legislatively intended. By the early years of the twenty-first century, more mothers were resorting to adoption, with their new partner, as a means of jointly acquiring rather than relinquishing absolute and irrevocable rights in respect of a natural child.46 Despite a clear legislative intent—in the Children Act 1975, the Children Act 1989 and the Adoption and Children Act 2002—to end such adoptions, unless clearly proven to be better than any alternative, this curious legal anomaly continued. The Adoption and Children Act 2002 removed the necessity for birth parents to be joined as adoption applicants with their new spouses and provided alternative proceedings for the latter; though clearly the birth parent is complicit and ‘her’ role remains the trigger for such adoptions (see, further, Sect. 6.2.2.2). Where the birth parent/s are otherwise involved in the adoption process, which unlike formerly can now include the unmarried father,47 it is likely to be on a non-consensual basis to resist the forced adoption of their child. These fundamental changes called into question the continued relevance of legislation constructed on a contrary premise. Moreover, the above legal complexity surrounding the role of birth mother as donor or adopter in the adoption process has become considerably more complicated 43 See,

Re B (Minor)(Adoption: Parental Agreement) [1990] 2 FLR 383. See, also, Re G (TJ)(An Infant) [1963] 1 All ER 20 CA; Re D (Minors)(Adoption by Step-Parent) [1980] 2 FLR 103, and; Re B (A Minor)(Adoption) [1988] 18 Fam Law 172. 44 See, Interdepartmental Group, DoH, Review of Adoption Law, para 3, (1992). 45 [1998] 2 FLR. See, also, Re D (Adoption Reports: Confidentiality) [1995] 2 FLR 687. 46 See, Bridge, C. and Swindells, H., Adoption—The Modern Law, Family Law, Bristol, 2003 at p. 217. 47 See, Re B (Adoption: Natural Parent) [2002] 1 FLR 196 HL where the House of Lords endorsed an adoption order made by the High Court in favour of an unmarried father as sole applicant.

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by her current role in surrogacy, which itself is often a prequel to adoption. Such has been the pace of developments in reproductive technology and genetic editing that the law has yet to come to grips with the implications arising from the distinction between the birth mother acting as an “egg donor” or as a “gestational carrier.” Indeed, thanks to such technology, a ‘mother’ may have to be interpreted as a composite term in recognition of the possible “female biological contribution among several women” as each makes their own separate contribution to the genetic, gestational and upbringing tasks in respect of the same child.48 As has been pointed out49 : In ART cases, the historical presumption that assigns motherhood solely on the fact of having given birth may thus run contrary to the parties’ stated intentions in arranging for conception, potentially burdening one woman with responsibilities she had not contemplated and denying another the parental rights she had expected to receive.

The added layer of same sex marriage, and the functions of adoption for a birth mother in the context of a lesbian relationship, further highlights just how far the role of a birth parent—particularly that of the mother—has changed in recent years and now requires the law to have a new synthesis of principles that can enable it govern adoption, surrogacy and reproductive technology more broadly. Family law as a whole is struggling to move beyond the traditional legal definitions of ‘family’ and ‘parent’ (see, further, Sect. 22.5). Another significant consequence of modern changes to the adoption process is that information rights now mean that the birth parent/s cannot step forever out of the life of their adopted child. The latter will always have access to the information necessary to identify, trace and possibly contact their birth mother if not both parents. In circumstances where a birth father had neither parental responsibility nor given his consent then his name will not appear on the original birth certificate and this will leave an adoptee dependant upon the information sought and recorded by the relevant adoption agency.

2.2.3.4

The Adopters

Other changes to the role of adopters have also impacted upon the adoption process. The profile of the typical adopter is now very different from the applicant who would have been involved in the traditional form of adoption. They now may well be older, not necessarily married and perhaps be financially assisted and professionally supported. Occasionally, they may be of the same gender. They may also be of a different nationality and perhaps different race to the child they propose to adopt. Arguably, today’s adopters may be seen in the main as comprising three distinct groups. Firstly, there are those who adopt children from a child care context. These 48 See,

for example, Mykitiuk, R., ‘Beyond Conception: Legal Determination of Filiation in the Context of assisted Reproductive Technologies’, 39 OSGOODE HALL, L.J., 2001, at p. 793. 49 See, Bala, N. and Ashbourne, C., ‘The Widening Concept of Parent in Canada: Step-Parents, Same-Sex Partners, & Parents by ART’, in Journal of Gender, Social Policy & the Law, Vol 20, Issue 3, 2012, at p. 9.

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are likely to be foster parents, or agency approved adopters with similar abilities, who will adopt older children or those with special needs and who may well rely upon and welcome ongoing and intrusive public service support. Secondly, there are those with the motivation, determination and resources to adopt babies from another country. These are more likely to be from a professional or upper middle class background and are unlikely to want any post-adoption public service intrusion. Finally, there are those who adopt children to whom they are related, or as spouse of a birth parent. This group is again unlikely to want or welcome any post-adoption public service intrusion. Adoption in the first two groups will be as a result of agency placements involving assessments by an Adoption Panel. A majority of adopters are now likely to have ongoing contact, direct or indirect, with members of the adopted child’s family of origin.

2.2.3.5

Post-adoption

Post-adoption services have, within the space of a few years, grown to become a whole new industry operating on a local and global basis. There is now a multitude of agencies and facilitators available to: assist in locating and disclosing identifying information; tracing and reunifying adoptees and birth family members; and providing related counselling and other services. There are global registries and data bases, accessible by internet, with search and find capabilities designed to reunite adoptees with their birth parents and siblings.

2.3 Family Adoption This term usually refers to first party applicants where the adopter, or one of them in the case of a joint application, is in fact the birth parent of the child concerned. It also includes kinship applications made by other relatives most usually grandparents but occasionally by uncles and aunts who traditionally would have had no locus standi in adoption proceedings but under modern family law provisions may acquire legal standing by virtue of an enduring care relationship with the child. Lying at its heart is the concept of the ‘blood-link’ and the legal significance to be attached to this as a component of a child’s welfare interests.

2.3.1 Trends in Annual Orders In the closing decades of the twentieth century, family adoptions, though accommodated with some ambivalence by the law in the U.K., had grown to the point where

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they constituted the single largest category of applicant. Of these, step-parent adoptions, although not a new phenomenon,50 comprised a large proportion of all annual adoptions. Lowe offers the following explanation51 : A key element in the increased number of adoption orders during the period 1951–68 was the rise of step-parent adoptions. Such adoptions are essentially of three types: so-called ‘post-divorce’ step-parent adoptions,52 where the new family comprises a divorced parent, a child of the former marriage and a step-parent; ‘post-death’ step-parent adoptions, where the family comprises a widowed parent, a child of the former marriage and a step-parent; and ‘illegitimate’ step-parent adoptions, where the family comprises a formerly unmarried parent, an illegitimate child and a step-parent.

It is the post-divorce adoptions of ‘legitimate’ children that accounted for the rise in step-parent adoptions and in turn inflated family adoptions relative to all other types. In 1951 step-adoptions formed 32% of all adoptions and by 1968 this had risen to 34%. The post-divorce adoption of ‘legitimate’ children more than doubled in the period 1968–1974. As Lowe explains, following the disapproval expressed by Houghton53 for this type of adoption and the resulting provision in the Children Act 1975 directing the courts to reject such applications where other options were more appropriate, the number of such adoptions fell sharply.54 However, according to the Annual Judicial Statistics: in 1998, the proportion of all adoption orders made in favour of step-parents still constituted 50% of the total; by 2005 this had fallen to 20%; and reached 7% in 2019 (see, further, Sect. 6.2.2.2).

2.3.2 Adoption by Birth Parent and Spouse An unmarried mother may adopt her own child.55 An unmarried father may also do so.56 Initially, however, the typical such application was made by newly married parents in respect of their child conceived and born in the context of their pre-marital 50 See, Masson, J., Norbury, D., and Chatterton, S., Mine, Yours or Ours? HMSO, 1983 where it is noted that in 1951 a third of all adoptions involving ‘legitimate’ children and just under one-half of those who were ‘illegitimate’ were step-parent adoptions. 51 See, Lowe, N., ‘English Adoption Law: Past, Present, and Future’ in Katz, S., Eekelaar, J. and Maclean, M., Cross Currents: Family Law and Policy in the United States and England, Oxford, Oxford University Press, 2000 at p. 317. 52 See, Lowe, ibid., where as authority for this definition he cites Masson, J., Norbury, D. and Chatterton, S., Mine, Yours or Ours? HMSO, London, 1983 at p. 9. 53 See, the Departmental Committee on the Adoption of Children, Working Paper, HMSO, London, 1970, paras 92–94. Also, see, Report of the Departmental Committee on the Adoption of Children (Cmnd 5107), 1972. 54 From 6336 in 1992 to 1172 in 2003 and to 1040 in 2004. See, further, Judicial Statistics. Lowe cites as his source the Inter-Departmental Review of Adoption Law, Discussion Paper No. 3, ‘The Adoption Process’ at p. 9. 55 See, Re D (An Infant) [1959] 1 QB 229 [1958] 3 All ER 716. 56 See, F v. S [1973] Fam 203 at 207, [1973] 1 All ER 722 at 725 CA. Also, see, Re B (Adoption: Natural Parent) [2002] 1 FLR 196 HL above at f/n 31.

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relationship; the purpose being to ‘legitimate’ that child. More recently it has come to be represented most typically by the re-married parent who applies jointly with their spouse to adopt the former’s child from a previous relationship. This use of adoption in the U.K., which increased considerably after the Divorce Act 1969 came into effect, to legally seal the boundaries of their new family units, has remained contentious even though the necessity for a birth parent to apply jointly with a new partner was removed by the Adoption Act 2002. The effect of an adoption order in such circumstances may be to marginalise not only the birth father but also his side of the family. The European Court of Human Rights in Soderback v. Sweden57 accepted that such an adoption amounted to interference with the birth father’s right to respect for family life as it totally and permanently deprived him of the opportunity to enjoy family life with his child (see, further, Sect. 4.4.7.3). In 2002 the legislature followed the judicial lead by introducing special guardianship orders as an alternative to adoption in such circumstances.58 Increasingly, where a birth father can provide evidence of having sustained some degree of ‘family life’ as interpreted by the ECtHR, then the courts are prepared to challenge any use of adoption that would prevent him from continuing to do so.

2.3.3 Adoption by Grandparent The Houghton Report took the view that adoption by grandparents was not, as a rule, desirable.59 This reservation rests on the significance of age differentials between adopter and adopted and echoes the warning given by Vaisey J. that they should be regarded as exceptional and made with great caution. Adoption by a grandparent has been treated with some restraint under U.K. law but is now becoming fairly common.

2.3.4 Other Relative Adoptions Being usually grounded on the rationale of extending de jure status to de facto long-term in loco parentis care arrangements, in respect of a consensual parental placement, this type of adoption is now increasingly used by relatives and is referred to as ‘kinship adoption’. A characteristic of the modern law as it relates to children is the protection now given to long-term direct care arrangements provided by a person, usually but not necessarily a relative, who has undertaken full responsibility for a child with authority from the parent. Such an arrangement can find ultimate protection in adoption. Also, where a local authority has determined that adoption is in the best interests of a looked after child then, in accordance with the principle of 57 [1999]

1 FLR 250.

58 Special guardianship orders became available in 2005 under the Adoption and Children Act 2002. 59 Paras

111–114.

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giving first preference to arrangements that retain a child within his or her family of origin, it will always explore the possibility of kinship adoption.

2.3.5 The Welfare Principle, the Blood Link and Family Adoptions In the U.K., prospective adoption applications from relatives of the child concerned are not usually subject to scrutiny by the local Adoption Panel (though they will be if the child is the subject of a care order). This, in effect, means that perhaps the most important quality control mechanism in the adoption process has no relevance for a very significant proportion of U.K. adoptions. They avoid this forum for professional assessment on the grounds that this is viewed as a matter of private family law and because there is very seldom a ‘placement’ consideration as regardless of the outcome the child will almost certainly continue to be retained in the care of the applicants. Although inquiries regarding their suitability will be made by local authority social workers, following the required serving of notice of their intention to apply to adopt, the applicants can choose when to apply and may not do so until several years after making the placement arrangement.

2.3.5.1

The ‘Blood-Link’ Factor

In common law jurisdictions the ‘blood-link’ or jus sanguinis has long been accepted as signifying an entitlement to rights by virtue of the circumstances of birth. Most often the concept is relied upon to ground an application for citizenship but it also applies in a family law context to similarly indicate a sense of ‘belonging’. Particularly in Indigenous communities, but increasingly also in modern western nations, the understanding that the welfare of a child may be best pursued through exploring the care potential offered within his or her extended family has considerable credence. The House of Lords, in Re G (Children),60 can be seen as establishing something of a milestone in U.K. jurisprudence dealing with welfare interests in the context of a parent-child relationship. On the face of it the case concerned a disputed shared residence order made in favour of two women, whose lesbian partnership had broken down, in relation to two children born by artificial insemination to the one who now had primary care responsibility. However, it in fact led the court into an examination of ‘what is a parent?’ and ‘how much does the blood tie matter?’. Overturning the decisions of the court at first instance and the Court of Appeal, the House of Lords ruled that insufficient weight had been given to the “important and significant factor”61 of the biological link between the birth parent and children. In a judgment 60 [2006]

UKHL 43 [2006] FLR 629. at para 44. See, also, the Australian case Hodak, Newman and Hodak (1993) FLC 92-421 for a similar ruling (further at Chap. 10).

61 Ibid.

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63

that claimed to be “raising no presumption in her favour”62 the birth mother, argued Baroness Hale, could not be viewed as being on the same footing in relation to the two children as the other ‘parent’ because she was “both their biological and their psychological parent … in the overall welfare judgment that must count for something in the vast majority of cases.” This important ruling would seem to establish the blood-link as a factor of some legal weight in differentiating between the claims of parents, whether in a same sex context or otherwise. Arguably, it is not without ambiguity. The decision is open to interpretation as raising the importance attached to the blood-link as a component of a child’s welfare interests (integral to developing an authentic identity, with lineage and inheritance connotations etc.). It also resonates with a more traditional approach that recognizes the inherent stronger legal position of a birth parent (carrying a presumption of care rights and responsibilities) and thereby perhaps devalues the modern emphasis placed on attachment and psychological bonding.

2.3.5.2

Kinship Adoptions

Kinship adoptions (whether by uncles and aunts, grandparents or other relatives), and adoptions by birth parent and step-parent, foster-parents and all other carers with an established legal relationship with the child concerned, are contentious. On the one hand a kinship adoption is regarded as problematic because: • a new and lesser legal status is being substituted for an existing legal and actual relationship; • purpose and motive can be open to question; • kinship adopters are usually older than others; • it can obscure the nature of the actual relationship between child and adopter and be confusing for other children in the family; and • it can have a divisive effect by alienating other relatives. On the other hand a kinship adoption is viewed positively because63 : • it often retains the child in their home and social environment; • it always maintains the child within their actual network of relationships (though in some circumstances this can be problematic); • it facilitates an honest sharing of information between all parties; and • by retaining the child within their culture of origin it minimizes the possibility of long-term identity problems. 62 Op

cit, at para 44. further arguments in support of kinship care see, for example, Broad, B. (ed.) Kinship Care: The Placement Choice for Children and Young People, Russell House, 2001, Greef, R. (ed) Fostering Kinship: An International Perspective on Kinship Foster Care, Arena, 1999 and Hegar, R.L. and Scannapieco, M., Kinship Foster Care: Policy, Practice and Research, Oxford University Press, 1999.

63 For

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2.4 Agency Adoption Third party or ‘stranger’ adoptions, where the adopters are unrelated in every respect to the child voluntarily relinquished or otherwise consensually available, is the model that has consistently been the subject of legislative intent in the U.K. It has also been consistently in decline since the 1970s, until very recently. In 1982, following the recommendation of the Houghton Committee,64 such adoptions became the responsibility of adoption agencies as private placements by non-relatives were thereafter prohibited by s 28 of the Children Act 1975. These are now more commonly referred to as ‘agency adoptions’ because, unlike family adoptions, the critical placement decisions are made by the professional staff of an adoption agency.

2.4.1 Trends in Annual Orders Agency adoptions include consensual placements whether made by registered voluntary adoption societies or local authority agencies and non-consensual placements made by the latter in respect of children subject to care orders (child care adoptions) including placements made with members of the child’s family of origin (kinship adoptions). This composite group, though most representative of legislative intent and constituting by far the majority of all orders made, has steadily declined over recent years in the U.K. The child care component, however, has remained at a fairly consistent and significant level as a proportion of all adoptions but at a low level relative to the child care population. At the end of the 1980s, only a very small proportion of children in care were subsequently adopted65 but, as Lowe points out, “whereas in 1968 they accounted for 8.7% of all adoptions, for most of the 1990s they accounted for a third or more of all adoptions.”66 The number of looked after children who were adopted peaked in 2015 at 5360 and has been falling ever since: in 2017, 4370 were adopted; and in 2018 there was a further decrease by 13% to 3820.

64 See, Report of the Departmental Committee on the Adoption of Children, London, HMSO, 1972,

Cmnd 5107, paras 84–90 and recommendation 13. survey of six local authorities in England revealed that only 0.8% were eventually placed for adoption (see, Rowe et al., 1989). See, also, review of research into adoption by the DoH, 1999a). 66 See, Lowe, N., ‘English Adoption Law: Past, Present and Future’, op cit, at pp. 321–322, where he cites the ‘Looked After’ statistics for England as showing the following child care adoptions: 2400 in 1997; 2500 in 1998; and 2900 in 1999. The Dept of Health annual statistics reveal that in England during the year ending 31 March 2002, a total of 3400 looked after children were adopted. 65 A

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65

2.4.2 Voluntary Society Adoptions The archetypal triangulation of need—featuring the relinquishing birth parent/s; the child orphaned, abandoned, unwanted or inadequately cared for; and the childless couple selected by intermediaries on the basis of eligibility/suitability criteria— provided the template for adoption law in the U.K. It was pioneered and administered for most of the history of adoption as a statutory process, until the 1970s, largely by voluntary adoption societies.67 Consent for adoption was envisaged and almost always was available, placements were chosen and made by voluntary societies in a confidential manner so as to ensure that all identifying information was held by the society and not shared between the birth parent/s, child and adopters. Record keeping by such societies was a matter for their discretion; many were destroyed in the belief that this was in keeping with the confidential relationship between the society and the three parties. The consequences of this process were legislatively intended to be essentially private, absolute and irrevocable. The involvement of voluntary societies in the U.K. adoption process has faded as the process became dominated by family applicants, for whom there is no need to provide a placement service, and by child care placements which are usually non-consensual and require to be authorized and managed by local authorities.

2.4.3 Child Care Adoptions Until very recently, the steadily increasing child care population in England has been matched by a steady decrease in the proportion being adopted. This inverse correlation has been accompanied by an increase in the associated financial and emotional costs.68 In 2013 there were 68,110 looked after children in the care of English local authorities, rising to 75,420 in 2018.69 The flow of children from the public child care sector into the private law adoption process has been a relatively modern development. For many generations, when care in the family of origin failed, whether due to criminal abuse perpetrated by a culpable parent or neglect by a well meaning but inadequate parent, children have entered the public care system. This seldom resulted in their becoming available for adoption.70 67 In 1966, for example, of all agency adoptions, 73% were arranged by voluntary societies; by 1971 this had fallen to 60%. 68 See, for example, Selwyn J. et al., Costs and Outcomes of Non-Infant Adoptions, BAAF, 2006. 69 See, further, at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/att achment_data/file/757922/Children_looked_after_in_England_2018_Text_revised.pdf. 70 Despite recommendations in the Curtis Report, The Care of Children, (Cmnd 6922) 1946 where adoption was advocated for older children in care and subsequently those of the Houghton Committee, Report of the Departmental Committee on the Adoption of Children, (Cmnd 5107) 1972 which pressed for adoption to be made available to children in public care where this was in the best interests of a particular child.

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Indeed, in 1952 of all children adopted only 3.2% were from public care,71 rising to 8.7% in 1968, while a survey by Rowe in 1989 of placement patterns in six local authorities discovered that only 0.8% of children in care were eventually adopted.72 By 2018, of the 75,420 children in care, 3820 exited by way of adoption, continuing the steady fall from a high in 2015. However, the traditional alternatives gradually became less viable. Long-term residential care in children’s homes proved damaging to the welfare interests of thousands of children placed in the care of local authorities by court orders, while the recruitment and retention of sufficient foster carers, became increasingly problematic. A body of research convincingly demonstrated that the life chances of a child who had grown up in the public care system compared very badly, across a number of indicators (including employment, mental health, relationships etc.), with one who had matured in a safe family environment. Consequently grounds for freeing such children for adoption were eventually legislatively introduced.73 The Children Act 1989, however, rested on principles such as that the welfare interests of a child were best served by care in their family of origin and local authorities should work in partnership with parents. As Hale LJ warned74 : The court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary.

Subsequently she added75 : Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.

The introduction of this legislation saw a change in the trend of child care adoptions. Instead of continuing their steady increase child care adoptions began to decrease from the mid-1990s. By the beginning of the twenty-first century, the imbalance between type/volume of child care resources and the needs of children requiring alternative long-term care arrangements had become a matter of acute concern to all local authorities. Residential accommodation for children subject to care orders, where desirable, was difficult to secure. Foster parents were a scarce resource and serial placements for a child in care was the norm. These problems were unfolding in the context of a dramatic decline in the availability of freely relinquished healthy babies and 71 See, Lowe, N., ‘English Adoption Law: Past, Present and Future’ in Katz, S., Eekelaar, J., and Maclean, M., Cross Currents: Family Law and Policy in the United States and England, Oxford, Oxford University Press, 2000 at p. 315. 72 See, Rowe et al. (1989). 73 The concept of ‘freeing orders’ was first suggested by Houghton, see, Report of the Departmental Committee on the Adoption of Children, London, HMSO, 1972, Cmnd 5107, paras 173–186. 74 Re O (Care or Supervision Order) [1996] 2 FLR 755, 760. 75 Re C and B [2001] 1 FLR 611 at para 34.

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67

a continued increase in the number of childless couples wishing to adopt. Moreover, research findings on the outcomes for looked after children together with the results of evidence based practice utilising attachment theory and implementing the permanency planning policy indicated that traditional approaches to securing care arrangements for looked after children were unsustainable. It seemed that an assertive policy to expedite non-consensual adoption for older and often abused or impaired children might be timely but any such policy driven approach to child care adoption had to heed the warning of the Supreme Court that this option was only permissible, “if nothing else will do.”76

2.4.3.1

Rehabilitation

The fact that by far the majority of looked after children return to their families, and the vast majority of those who do not remain in foster care, should not be overlooked in any discussion about child care adoption. Whether the welfare interests of a child committed to long-term local authority care would be best furthered by a permanence plan that aims to rehabilitate him or her within their family of origin, or within the extended family, or by long-term foster care, or by adoption is clearly a matter that must turn on the particular circumstances of the child concerned. The principles and ethos of the 1989 Act, however, exerted an influence, not present in earlier legislation, towards a preference for the former option. It remains the case that where there are reasonable grounds for optimism, regarding a possible reunification of parent and child, then clearly the local authority must give first preference to pursuing that option. As Munby J remonstrated in Re L (Care: assessment: fair trial)77 : …it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to a parent—particularly, perhaps to a mother—that he or she is to lose their child forever.

In the light of the draconian effect of adoption on the future of such a parent/child relationship, the guidance from the ECtHR78 is apt—every effort should be made to explore rehabilitation if subsequent recourse to adoption is to be compliant with Article 8 of the European Convention. In particular, Gorgulu v. Germany79 provides authority for the view that the child’s welfare must be seen in a long-term context and this may even require terminating an adoption placement, however satisfactory,

76 See,

Re B (A Child)(Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, per Hale LJ at para 198. 77 [2002] 2 FLR 730. 78 See, for example, Haase v. Germany (2005) (App No. 11057/02, ECHR). 79 Application No. 74969/01, ECtHR, 26.02.2004. Also, see, P, C and S v. UK (2002) 35 EHRR 31, K and T v. Finland [2001] 2 FLR 707 and Johansen v. Norway (1996) 23 EHRR 33; see, further, Chap. 4.

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if local authority intervention is to meet the test of ‘proportionality’. The significance of this principle was explained by Hale LJ in Re C and B80 as follows: …one comes back to the principle of proportionality. The principle has to be that the local authority works to support, and eventually to reunite, the family, unless the risks are so high that the child’s welfare requires alternative family care. I cannot except that this was a case for a care order with a care plan of adoption or nothing. There could have been other options. There could have been time taken to explore those other options.

In many cases the prospects for safe rehabilitation can be swiftly assessed as unrealisable on the basis of facts grounding the care order, the parent/s track record etc., or the number of years the child has been in care. In those circumstances, when the principle of partnership with parents and the ‘care in the family of origin is best’ ethos of the 1989 Act have had to give way, then a local authority applied the policy of permanency planning. Now, when parents seek leave to defend adoption proceedings, following care orders and the issue of placement orders under s 21 of the 2002 Act, a heavy onus rests on them to show a significant change in their circumstances and this will be judicially assessed by application of the paramountcy principle.81

2.4.3.2

Permanency Planning

A key policy to emerge in recent years in most western societies has been a recognition that public service agencies should strive to secure for every vulnerable child a stable, safe and nurturing environment in which he or she can grow up. Where rehabilitation in the family of origin or with relatives is not an option then public authorities must consider how best to secure a permanent placement for a looked after child.82 ‘Permanence’ is ‘a framework of emotional, physical and legal conditions that gives a child a sense of security, continuity, commitment and identity’83 while ‘permanency planning’ has been defined as84 : …the systematic process of carrying out within a limited period a set of goal-directed activities designed to help children and youths live with families that offer continuity of relationships with nurturing parents or caretakers, and the opportunity to offer lifetime relationships.

The term has long played a role as a key concept in American child care legislation and now informs local authority policy in relation to looked after children for whom return to their families of origin is not feasible. The age of the child, the child’s 80 [2001]

1 FLR 611 at para 31. P v. Serial No. 52/2006 and Others [2007] EWCA Civ 616. 82 See, for example, Aitken, G., ‘Extending Options in Permanency Planning’, in Permanency Planning in the Child Welfare System, Ottawa, Sparrow Lake Alliance: Children in Limbo Task Force, 2002, at pp. 16–17. 83 See, the Department of Education and Skills, Draft Regulations and Guidance for Consultation (Care Planning, Special Guardianship), London, 2004 at p. 20. 84 See, Maluccio, A. and Fein, E., ‘Permanency Planning: a redefinition’, Child Welfare 62: 3, pp. 195–201, (1983). 81 See,

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wishes and the quality of his or her relationship with their parents may well indicate adoption as the preferred means of securing permanency for that child whether or not parental consent is available. Local authorities in the U.K. will always apply permanency planning to identify the best option for a ‘looked after’ child, most often this will be either adoption or long-term fostering or by way of such private law measures as a residence order and in the future special guardianship. A factor of growing significance for local authorities engaged in permanency planning is whether the cost in financial and other terms merits pursuing the adoption option for a looked after child. Purely in financial terms, justifying the investment of scare resources in lengthy contested proceedings often involving QCs, expert witnesses and vast amounts of social work and senior management time in respect of a child (who may in any event remain in the existing care arrangement) can be problematic. The cost in terms of time for the child concerned who needs a settled family environment to form attachments and the insecurity for prospective adopters must also be borne in mind. Then there is the cost to the self-esteem and morale of social workers, often young and inexperienced, exposed to intimidating crossexamination in the gruelling process of contested proceedings. It may be that, despite all the changes in law and policy to facilitate the adoption of looked after children, such practice driven considerations will ultimately weigh in the balance with local authority decision makers.

2.4.3.3

Concurrent Planning

In recent years the practice of concurrent planning has been instituted for children accommodated by some local authorities in order to reduce the number of changes of placement endured by such children. This is a practice whereby a local authority will commit to a rehabilitation programme designed to return a child to safe parental care, while also putting in place a parallel permanent placement plan.85 It relies upon foster parents who are chosen for their capacity to engage directly with the birth parents and facilitate the rehabilitation plan: the foster parents must have the resilience to facilitate the return of the child to parental care if that plan succeeds; but also, in the event of that plan failing, must be willing to adopt the children concerned. These two options will then be played out in tandem with emphasis given to rehabilitation but the fallback position of adoption is kept alive and preparations for utilising it are attended to constantly. In very many cases, where the rehabilitation option has demonstrably failed, children in care have then been successfully and relatively swiftly adopted. This approach avoids the traditional care career of serial placements and ‘drift’ in long-term foster care and has been recently wholly endorsed by government.86 Arguably, however, there is cause for some concern as to whether such a practice is wholly Convention compliant: specifically, there are grounds for considering that, 85 See, for example, Wolfson, R., ‘Concurrent Planning: A Route to Earlier Permanence for Young Children’, Seen and Heard, Vol 23, Issue 2, 2012, pp. 46–58. 86 See, Dept of Education, An Action Plan for Adoption: Tackling Delay, 2012, paras 60–63.

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by allowing attachments to form over a considerable period, concurrent placements in effect prejudice the welfare principle, reduce the likelihood of a return to parental care and pre-empt the court’s decision-making, thereby breaching Articles 6 and 8.

2.4.3.4

Long-Term Foster Care v. Adoption

Given the virtual disappearance of residential care provided by voluntary organisations and the influence of the principle that family care is most conducive to promoting the welfare of a child, permanency planning in practice means a choice between two forms of placement, long-term foster care and adoption: by 2013, three-quarters of all children in care in the U.K. were in foster placements87 ; but by 2018 this proportion had reached 73%. Generally speaking, long-term foster care is most often the placement of choice in circumstances where the probability of successful bonding, the crucial component in any attempt to replicate in adoption the dynamics of a “normal” nuclear family, is reduced by some added complication. This may be the case where the children concerned are older, have been repeatedly fostered, comprise a multiple sibling group, have complex health or special needs or are children from a minority culture background. Quite often the choice is made because a child has close relationships with his or her family of origin which the local authority want to maintain, and a placement with foster parents rather than adopters is more conducive to facilitating open-ended contact arrangements. In Re B,88 where such a relationship existed but a local authority nevertheless chose adoption rather than long-term foster care, the courts challenged that choice. The court ruled that given the close and frequent contact between the looked after child and his birth father and paternal grandmother, all of whom lived locally, adoption was inappropriate as the child was in fact a secure member of both families. Also, there are times when an intended short-term placement has been so successful that any change would threaten the welfare interests of the child concerned. For example, in Re F (Adoption: Welfare of Child: Financial Considerations)89 the local authority sought freeing orders in respect of three siblings whom it proposed to remove from successful but expensive foster care and place for adoption, though an adoption placement had yet to be identified. The foster carers were not in a position to adopt because of the financial loss they would incur on cessation of foster care allowances. The proposal was not supported by the guardian nor by any of the 87 On 31st March 2019 the local authority child care population comprised 78,150 children, of whom 56,160 (72%) were living with foster carers. See, further, CORAMBAAF statistics at: https://corambaaf.org.uk/fostering-adoption/looked-after-children-adoption-fostering-statistics/ statistics-england. 88 [2001] 2 FCR 89. 89 [2003] EWHC 3448 (Fam). Note, also, R (L and Others) v. Manchester City Council; R (R and Another) v. Manchester City Council [2001] EWHC Admin 707, [2002] 1 FLR 43 where the court ruled that the local authority practice of paying less to kinship carers than to foster carers was unlawful.

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other professionals involved as it was seen as contrary to the children’s welfare interests. The court refused the order and rebuked the local authority for not having a child-centred focus in its care plan. The disadvantages of long-term foster care are that: • There is intrusion. • Drift can happen with the child moving from one place to another. It is more likely to lead to breakdown. • It reinforces impermanence. • Matters such as surname can be important. Self-image is important as children get older. • The existence of other children in foster care can increase the insecurity as they come and go. • Children frequently act out with the other foster children the abuse they have suffered. • Placements in long-term foster care are more likely to fail than adoption placements. The advantages of adoption, as stated in the DHSS circular Departmental Guidance: Permanency Planning for Children: Adoption—Achieving the Right Balance, are that90 : The importance of family life to a child cannot be overstated. It is the fundamental right of every child to belong to a family and this principle underpins the United Nations Convention on the Rights of the Child which United Kingdom ratified in 1991. Where, for whatever reason, children cannot live with their families, society has a duty to provide them with a fresh start and, where appropriate, a permanent alternative home. Adoption is the means of giving children an opportunity to experience positive family relationships. Adoption continues to provide an important service for children, offering a positive and beneficial outcome. Research shows that adopted children generally make very good progress compared with similar children who are brought up by their parents. Adopted children do considerably better than children who have remained in the care system throughout most of their childhood. Adoption provides children with a unique opportunity to become permanent members of new families enjoying a sense of security and well-being previously denied to them.

The U.K. government has since firmed up on this approach with an unequivocal policy commitment to prioritising adoption in preference to long-term foster care (see, further, Sect. 6.3.1.1). In every instance, however, the court will guided not by government policy but by evidence that this is the best option for a particular child—the provision of such evidence, as noted by Black LJ in Re V (Children), has not always been seen as necessary91 : I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering … It is not the first time that I have remarked on an absence of such material from the evidence 90 See, Local Authority Circular (20), 1998. See, also: the government’s Green Paper, Every Child Matters, 2003; and Biehal, N. et al., Belonging and Permanence: Outcomes in Long-Term Foster Care and Adoption, BAAF, 2010. 91 [2013] EWCA Civ 913, at para 88.

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2 The Changing Face of Adoption … Care should always be taken to address this question specifically in the evidence/reports …

If government policy in the U.K. is to be effective it would need to be supported by a considerable increase in the pool of approved and suitable adopters. It has been estimated that as of 2013 the running annual shortfall of adopters was approximately 5–600 with some 2000 extra adopters required to match the numbers of children waiting to be placed.92 By 2019 the picture was no better: 4140 children in England with a plan for adoption and 1700 families approved to adopt.93

2.4.3.5

Private Law Orders

Permanency planning can also result in a looked after child leaving the public care system for private family care, not through adoption but under the authority of a private law order. In the past this might have been achieved through use of a guardianship order or the ill-fated custodianship order. Since the introduction of the Children Act 1989, residence orders have been used to discharge a child from a care order and for vesting parental rights, shared with the birth parent/s, in the named holder of the new order. This option has not proved popular with foster-parents because its authority and status is seen as being unduly compromised by ongoing parental involvement. Special Guardianship The special guardianship order became available in 2005, under the Adoption and Children Act 2002, probably triggering the sharpest fall in annual adoption orders over the past 15 years. This order was introduced to provide a new permanence option for children, a half-way house between a care order and adoption, intended to attract both foster parents and kinship carers it has been mainly sought by the former.

2.4.4 The Welfare Principle and Agency Adoptions All prospective agency adoptions are assessed by an Adoption Panel the brief of which is to make recommendations as to: • whether adoption is in the best interests of a particular child; • whether a prospective adopter should be approved as an adoptive parent; and • whether the home of a particular approved prospective adopter would provide a suitable placement for a particular child.

92 See, 93 See,

further, at: http://www.baaf.org.uk/webfm_send/3095. further, at: https://www.adoptionuk.org/pages/faqs/category/national-adoption-week.

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The Panel acts as an independent quality assurance body that makes recommendations to its ‘parent’ adoption agency on matters concerning adoption as a means of securing the welfare interests of children referred to it (see, further, Sect. 6.4.2.1).

2.5 Intercountry Adoptions For some decades the number of babies available for adoption has been declining in all modern Western societies. At the same time, circumstances of war, poverty and natural disaster have induced other countries to permit the adoption of orphaned or abandoned children by couples in western societies. The welfare interests of such children can usually only be improved by this modern ‘child rescue’ approach. However, for some children their availability is conditioned by the social economy of their country of origin and it may be that the dislocation to family and culture resulting from adoption could, in the long-term, prove not to be conducive to promoting their welfare interests. Unquestionably, intercountry adoption will only satisfy the welfare test when neither rehabilitation in the family of origin nor adoption within the country of origin is possible.

2.5.1 Trends in Annual Orders The adoption of children from other countries by persons unrelated to them and resident in the U.K. gradually became a more significant aspect of modern adoption practice. Lowe has drawn attention to the relatively low numbers of such adoptions94 : In the early 1990s, there were a number of adoptions of Romanian orphans. Indeed, in 1992 the Adoption Law Review commented that since March 1990 over 400 children from Romania alone had been brought to the U.K. for adoption. In 1998, however, the total number of intercountry adoptions through official procedures was 258, amounting to 6% of all adoptions for that year.

While total annual UK intercountry adoptions ranged between 300 and 360 in the period 2003–07, by 2008 they had fallen to 225, dropping steeply to 58 by 2015, but rallying marginally to 71 in 2018.95

94 See, 95 See,

Lowe, N., ‘English Adoption Law: Past, Present and Future’, op cit, at p. 333. further, at: https://assets.hcch.net/docs/a8fe9f19-23e6-40c2-855e-388e112bf1f5.pdf.

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2.5.2 Transracial Adoptions The modern post-war phase of intercountry adoption was transracial from the outset. The Scandinavian countries being the first to establish adoption agencies in Asia, particularly in Korea. The media generated controversy surrounding transracial adoptions has tended to center on a practice by adoption agencies and local authorities to make and break placements on the basis of whether or not there was a racial match between child and prospective adopters. There have been a number of cases where the propriety of this practice has been examined.96 The emerging consensus is that where possible placement arrangements should reflect a child’s ethnic background and cultural identity, insofar as such considerations are compatible with the welfare interests of that child which must always have priority. In particular, the courts have upheld the value of preserving established relationships as a key component of welfare interests in transracial as in all other kinds of placements; the duration of current care arrangements and age of the child being of crucial importance. In Re N (A Minor)(Adoption)97 Bush J warned that: …the emphasis on colour rather than on cultural upbringing can be mischievous and highly dangerous when you are dealing in practical terms with the welfare of children.

The practice was addressed in the White Paper on adoption.98 The view then expressed was to the effect that a child’s ethnic background and cultural identity should always be factors to be considered by agency staff when making adoption placements but not necessarily to be given any greater consideration than other factors.

2.5.3 The Welfare Principle and Intercountry Adoptions All prospective intercountry adoption applicants are professionally assessed and the resulting reports are reviewed by Adoption Panels. Intercountry adoptions have given rise to eligibility issues. These most often occur in relation to the prohibition on unauthorised payments,99 unauthorised placements and proof of consents. The first two represent the traditional legal abhorrence of ‘trafficking’ in children and are criminal offences under s 57 and s 11 respectively of the 1976 Act. Improper payments (e.g. direct or indirect payments to the child’s 96 See,

for example: Re P (A Minor)(Adoption) [1990] 1 FLR 96; R v. Lancashire County Council, ex parte M [1992] 1 FLR 109; and Re JK (Adoption: Transracial Placement) [1991] 2 FLR 340. Also, see, Caesar et al., 1993 and Tizard and Phoenix, 1989. 97 [1990] 1 FLR 58 at p. 63. Also, see, Re O (Transracial Adoption: Contact) [1995] 2 FLR 597. 98 See, Adoption: The Future, (Cmnd 2288) HMSO, 1993, para 4.32. 99 See, Re An Adoption Application [1992] 1 FLR 341, Re AW (Adoption Application) [1992] Fam Law 539 and Re C (A Minor)(Adoption Application) [1992] Fam Law 538.

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mother) may, if proven, prevent the court from making an adoption order100 ; though much will depend on the circumstances and whether the child’s welfare interests are otherwise impaired. Improper placements are viewed more seriously by the courts and are more likely to result in the refusal of an adoption order. The problems in relation to proof of consents refers to the difficulty in establishing, across geographical, cultural and language barriers, the legal status of parent and child and confirming that any consent given was done so freely and with full understanding of the consequences. Any one or combination of these issues may well complicate the court’s ultimate application of the welfare test to a particular intercountry adoption application. However, as was illustrated in Re C (Adoption: Legality),101 the fact that there have been irregularities—in adopter approval, payments, matching and introduction of adopter and child—will be insufficient to outweigh the fact that once the placement is made the passing of time steadily dictates the making of an adoption order as the best option available to the court.

2.5.3.1

Cultural Links

Applying the welfare test to the child subjects of intercountry adoptions does of course give rise to some fundamental questions. It must be accepted that the circumstances of war and natural disaster governing the availability of many children are such that their welfare interests can only be improved by the ‘child rescue’ approach of contemporary adopters. This rationale, perhaps, lay behind the decision of the court in Re K (Adoption and Wardship)102 which concerned a five year old orphan who as a wounded baby had been removed from Bosnia and then ‘adopted’ by her English rescuers. The court, when faced with a petition from the child’s relatives, set aside the defective adoption order but rather than direct her return to her extended family and her country of origin it ruled that she should remain with the English couple who had become her ‘psychological parents’. A contrary line of reasoning was present in the decision of in the Court of Appeal in Re M (Child’s Upbringing).103 In that case it was held that preserving the Zulu identity of a ten year old boy, reared for seven years by white foster parents, was sufficiently important to order his return to birth parents in South Africa despite his strong wishes to the contrary. While it is 100 The court may, however, retrospectively authorise payments; see, for example, Re WM (Adoption:

Non-Patrial) [1997] 1 FLR 132. 1 FLR 370. 102 [1997] 2 FLR 230. See, also, Re N [1990] 1 FLR 58 where the adoption application by white foster parents in respect of a four year old Nigerian child, placed with them when 3 weeks old, was successfully challenged by the child’s father who lived in the U.S. The court, attaching considerable weight to the father’s assertion that adoption was unknown to Nigerian law and carried resonances of slavery, warded the child giving care and control to the foster parents. 103 [1996] 2 FLR 441. See, also, Re B (Adoption: Child’s Welfare) [1995] 1 FLR 895 which concerned an adoption application arising from the informal foster care arrangement made for a Gambian child. In refusing the application, Wall J placed considerable importance upon the child’s cultural inheritance as an integral aspect of its welfare. 101 [1999]

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admittedly difficult to reconcile the judicial rationale of both cases, it may be that intercountry adoption will only satisfy the welfare test where, as with other adoptions, rehabilitation in the family of origin has become impossible. The consent or absence of dissent, of the child concerned, must also be a factor in meeting that test.

2.6 A Coherent Legal Model for Adoption Practice It could be argued that adoption practice in the U.K. has now outgrown the uniform legal framework which governed its development since its legislative inception. Adoption no longer conforms to the single coherent model that traditionally fitted the social needs of late Victorian England. In fact it has not done so since at least the 1970s.

2.6.1 Classification of Adoption by Type The adoption process in the U.K. now encompasses several different ‘types’, usually broadly classified as ‘family adoption’, ‘third party adoption’—also known as ‘agency adoption’ which contains a number of quite distinct groups—and ‘intercountry adoption’ which is really a form of third party adoption.

2.6.1.1

Family Adoption

Most usually the applicant is a step-parent of the child concerned who, with their new spouse—the birth parent of that child—is motivated by a wish to legally secure parental rights and responsibilities. Pre-application professional assessment is not usually a legal requirement and counselling is probably unwelcome. The child is unlikely to be a baby, their wishes, and their consent if old enough, will be sought and the order may well be compromised by a contact condition in favour of the child’s other parent. Post-adoption public support services are not provided.

2.6.1.2

Agency Adoption

The traditional form of adoption, which continues albeit in greatly reduced numbers, is initiated by a married and usually childless couple, unrelated to the subject of the application and motivated by a need to become parents. They will have been professionally assessed and carefully matched to suit the needs of the child concerned. The latter is likely to be a baby or toddler without health or social care difficulties and their views or consent will not be sought. The order is likely to be absolute and post-adoption public services are again most unlikely.

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Child care adoption is a species of agency adoption. It is, however, initiated by a local authority seeking carer/s, married or not, with skills appropriate to the needs of the child concerned. The applicants may be motivated by their existing care relationship with the child (although only a minority of such applicants will be foster carers) and will have been professionally assessed, offered counselling and be carefully matched to suit the needs of that child. The subject is likely to be an older child with health or social care problems whose views or consent will be sought. The order will almost always be compromised by a contact condition or agreement in favour of member/s of the child’s family of origin and post-adoption public support services will be provided.

2.6.1.3

Intercountry Adoption

The applicants are likely to be an older married couple motivated by a need to parent a healthy baby or toddler without health or social care problems and preferring to do so by looking overseas rather than undergo the waiting, agree to ongoing birth family contact arrangements and cope with the uncertainties associated with agency adoption. They will have been professionally assessed and counselled, will be prepared to pay the considerable costs involved and will not want post-adoption public services. The order will be absolute. They each conclude, if successful, in an order with a uniform effect on the parties concerned. However, intercountry adoption is different from the others in that it is now regulated by its own quite distinct body of legislation (see, further, Chaps. 5 and 6).

2.6.2 Social Role The purposes pursued in each type of adoption are often fundamentally different. In particular, family adoption, child care adoption and intercountry adoption can be clearly differentiated from each other and from the traditional form of third party adoption. The children, their needs and the relative bearing of the welfare principle are also quite different in each context, as are the motives of adopters and the reasons governing the availability of children. The extent to which each type attracts professional and public service intervention can vary considerably.

2.6.3 Legal Functions Essentially, the above differentiation in adoption’s contemporary social role reflects the balance respectively struck between public and private interests in each type. The public interest is most strongly represented in child care adoptions while family

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adoptions are in the main dominated by private interests. All types are also subject to the public interest in safeguarding the welfare of the child.

2.7 Conclusion Adoption in the U.K. has greatly changed since the introduction of the first legislation. Most change has occurred in the past few years. The traditional form of adoption has largely been displaced by new variants some of which are wholly driven by private interests (e.g., family adoptions, surrogacy associated adoption) and others by the public interest (e.g., child care adoptions). Sustained adopter demand in the face of the shrinking consensual availability of healthy white babies has broadened the adoption ‘market’. Intercountry and transracial adoptions, once rare occurrences, are becoming increasingly common as is adoption by same sex couples while many more children with ‘special needs’ are now being adopted than would ever have been thought possible. A closed, immutable and confidential process has in many ways become more open. It has also, however, become more prone to being bypassed: surrogacy—altruistic or commercial—and improved IVF technology have provided parenting opportunities that simply did not previously exist. All this gave rise to legal complications regarding issues such as consent, application of the welfare principle and post-adoption contact, financial support and information rights. The ‘one size fits all’ composite legal framework could no longer adequately accommodate the new types of adoption with their associated distinctive problems. Adoption law as a whole in the U.K. was no longer reflecting a coherent policy nor was it equal to the sum of the parts of adoption practice.

Part II

Developing International Benchmarks for Modern Adoption Law

This part is central to the book. It sets out and explains the frameworks both for the template to be employed in gathering the profile data necessary to undertake a comparative analysis of selected jurisdictions and for the principles of international law applied through convention jurisprudence that now supplement and constrain national law and practice in those jurisdictions. The main legal functions of adoption, as revealed in the legislation and related case law of England and Wales, are identified, their history and purpose explored, and their inclusion in the template justified. The adoption-related principles and provisions stated in various conventions are examined, with particular attention being given to the United Nations Convention on the Rights of the Child and the European Convention for the Protection of Human Rights and Fundamental Freedoms including an up-to-date survey of relevant ECtHR case law. The phenomenon of intercountry adoption (ICA) and the provisions and significance of the Hague Convention on Intercountry Adoption are examined in some detail. In so doing, this part identifies the key benchmarks of modern adoption law and policy and clarifies the terms of reference for the survey of jurisdictions in Parts III–V.

Chapter 3

The Legal Functions of Adoption

3.1 Introduction At each stage of the adoption process a distinct set of legal functions comes into play that are now readily recognised. They have clear roles in a statutorily defined process that, at least in contemporary western societies, is now well established and to a varying degree regulated throughout its sequence of quite distinct stages. Entry to the process is controlled through the application of threshold criteria to all parties. Placement of the child is subject to an authorised consent. Supervision of the child, after placement and until determination of proceedings, is usually a statutorily ascribed responsibility. The outcome of an adoption application is determined with regard to the rights of the parties but in accordance with the principle of the welfare of the child and may result in the issue of a conditional order or in an order other than the one sought. Finally, the effects of an adoption order, the possible availability of post-adoption support and of long-term services relating to information disclosure, tracing and possible re-unification and the responsibilities of the parties concerned are usually set by statute. The central focus of this chapter is on identifying the main legal functions of adoption as generally applicable in contemporary modern western jurisdictions. Attention is given to recent changes in emphasis and to the balance now generally struck between public and private legal interests. The chapter goes on to examine the related legislative intent and assess the consequences of exercising the legal functions for the parties involved in the adoption process. In this way a tool kit is assembled for use in later chapters to assess and track trends in the main operational aspects of the adoption process in other contemporary jurisdictions. The chapter thereby also outlines a template against which the legal functions in the adoption processes of other countries can be compared and evaluated.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_3

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The chapter begins with an overview of the adoption process. In particular, it considers: • • • •

the regulatory framework; the roles of determining bodies; the roles of other administrative agencies; the sequential stages of the adoption process and the nature and the weighting of different legal functions at each stage; • the legal criteria governing entry to and exit from the process; • the legal effects of an adoption order; and • the outcomes of the process for the parties concerned. Finally, the chapter concludes with a review of the changing place of adoption within the larger framework of family law.

3.2 Regulating the Adoption Process While adoption in the U.K. has been firmly established as a judicial process, closely regulated, the successful completion of which is marked by the issue of a court order, this is not necessarily the case in other jurisdictions. Whether or not adoption proceedings are judicial, however, the role assigned to mediating bodies is now almost always professional, intrusive and extensive and the entire process operates within a statutory framework. This framework provides an important opportunity for influencing the balance between public and private interests. If appropriate standards are to be maintained and good practice promoted then an agency must be positioned to hold an overview of the workings of the adoption process.

3.2.1 The Adoption Process Until relatively recently in most western societies the adoption process has existed simply as an extreme form of private family law proceedings. It was a process characterised by private initiative, the anonymity of its participants, and by the fact that one or more parties sought to bind the others to permanent secrecy. It aimed to achieve an artificial re-configuration of legal relationships between the participants, sealed by an unconditional adoption order that would be absolute, exclusive and permanent. It was an adoption process wrapped in a distinct aura of taboo. This traditional adoption process usually permitted only one of two possible outcomes: an adoption order was either granted or it was refused; no qualification to an order nor any alternative option to it, were available. When regarded as primarily a matter of private law, the adoption process was conducted in a non-intrusive manner. All the important decisions were taken before the application was brought before the court or other determining body. The latter

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then addressed the public interest dimension by ensuring that the welfare threshold was satisfied. In recent years, instead of the traditional all or nothing, private or public resolution of adoption proceedings, the law in many jurisdictions has developed to provide a longer, broader and more balanced response to adoption applications. An adoption process will now most usually consist of the following stages: • pre-placement counselling; • legal procedures regarding availability of child, status of parties, consents, identification of any residual post-adoption rights etc.; • placement of child; • pre-application supervision of placement; • legal procedures relating to application; • the hearing and issue of order/s, with or without attached conditions; • post-adoption support services; and • information disclosure, tracing and possibly re-unification services. As can be seen, the process is now often lengthened at commencement by a statutory pre-placement counselling stage during which adoption agencies are required to provide a counselling service to all birth parents whose consent is available or will be sought and to such others as may be necessary. In the context of family adoptions, professional scrutiny is now frequently required. The process has also been extended at the closing stage by procedures governing the disclosure of information, use of contact registers, by possible contact orders accompanying adoption orders and the opportunities for adoption allowances and other forms of ongoing support from government bodies. Moreover, it now encompasses a wide range and uneven mix of participants including: increasing numbers of children from other jurisdictions; children who have special social and/or health care needs; step-parent applications; and a growing proportion of foster parent applicants. The sequence of stages constituting the adoption process have become more distinct and are now governed by a mix of some prescriptive rules and large areas of professional discretion but otherwise the continuum has not undergone any substantive change. What has changed most significantly in some jurisdictions is the nature of the process. This has developed from being almost exclusively consensual to becoming increasingly coercive as regards authorising the availability of children; and agency controlled, in terms of determining adopter suitability, selection of children and matching of child and adopter. There is considerable jurisdictional variation, however, in the degree and pace of such developments. Other changes have also impacted upon the traditional adoption hallmarks of absoluteness, exclusiveness, secrecy and permanency. These have necessitated adjustments to the regulatory role statutorily assigned to the determining body and agency.

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3.2.2 Role of the Judiciary or Other Determining Body The consequences of adoption for the legal status of all concerned have always been viewed in some jurisdictions, most notably in the U.K., as necessitating judicial determination. This is often also a matter of practical necessity; as the non-consensual proportion of adoption applications grows so too does the need to involve the court to adjudicate on contentious legal issues. The role of the court or other determining body is to: • • • • •

ensure that criteria of eligibility/suitability and status are fulfilled by all parties; ascertain consent or adjudicate on consent issues where necessary; check adherence to law, procedures and propriety; ensure the welfare of the child; and then make such order as may be appropriate.

This role is usually supplemented by the responsibilities of other officials, such as social workers and a court officer such as the CAFCASS officer. The former will usually provide reports detailing the circumstances of the adopters and the family background of the child while the latter will be required to carry out an exhaustive investigation into all the circumstances of the proposed adoption. The court officer will interview all applicants and respondents including, where feasible, the child and ensure that any factor having a bearing on the welfare of the child is brought to the attention of the court.

3.2.3 Role of Administrative Agencies The extent to which the law licenses or constrains those in a pivotal position to influence the finalising of an adoption ‘contract’ provides valuable insight into the legal balance struck between public and private interests. Adoption legislation generally contains few objective criteria; control over the adoption process has effectively been delegated to adoption agencies. In recent years that process has, in most modern western jurisdictions, become greatly contracted in terms of the numbers of applicants and babies involved while also becoming increasingly professionalised. The fewer children now being adopted, many in the course of contested proceedings and bringing with them complicated legal problems, receive attention from an increasing range of bodies and officials; their bearing on the process differing according to whether an application is ‘family’, ‘agency’ or ‘intercountry’. An adoption society or agency is the key professional reference point in the adoption process; in many jurisdictions these are now required to register with a designated government body and such registration is dependent upon ability to satisfy prescriptive standards. The emergence of consortia, umbrella bodies that co-ordinate the work and resources of several adoption agencies, are also beginning to exercise

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a significant influence on shaping policy and practice. An important development in recent years in the U.K., unlike other jurisdictions, has been the extent to which the traditional involvement of voluntary agencies in the adoption process has been displaced by statutory agencies. This reflects three changes in entry to the process: a sharp decrease in the number of babies available for third-party placements; a steady increase in first party applicants adopting a child to whom they are related; and increased access to the process by public bodies placing older children or those with complicated health/social care needs. The key professional functions of an adoption agency are likely to include: • assessing prospective adopters; • providing pre-placement counselling for birth parents and where appropriate, for the children concerned; • providing information to adopters on health, social care and well-being of children to be placed; • arranging adoption placements; • assessing and where appropriate meeting any need for post-adoption support services; and • providing post-adoption counselling, information disclosure and tracing services. The local authority in England, or the equivalent public body in other jurisdictions, plays an important role in relation to the adoption process. The statutory powers available to such a body for the registration and supervision of adoption agencies are indicative of the public dimension of that process. Coupled with this is the extent to which it acts as a feeder channel. In some jurisdictions that body will manage the child care context for permanency planning on behalf of children in need of longterm foster care but otherwise be positioned alongside and carefully distanced from the adoption process. In others such a body will ensure that the adoption process is firmly embedded and integrated within its child care context. The Registrar General, or equivalent official in other jurisdictions, has duties with a bearing on the adoption process, though in effect they are tied to a post-adoption role. At a minimum, these will allow for the collection of information sufficient to identify child, adopters, the date and place in respect of every adoption order issued.

3.3 Thresholds for Entering the Adoption Process: Eligibility and Suitability Criteria Access to the adoption process is clearly crucial—Who may be a party to adoption proceedings? Who may be prohibited from participation? The conditions under which this may happen—comprise the acid test of how the public/private balance is struck. The eligibility and suitability criteria, as applied to birth parents the child and to the adopters, give effect to this balance. In almost all western jurisdictions, access to the adoption process is now subject to mandatory professional scrutiny to ensure that

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all parties meet the threshold criteria and that the placement is at least compatible with the welfare interests of the child. In the U.K., this role is performed initially by adoption agency staff in relation to all applications including ‘family’ adoptions and then by Adoption Panels in respect of all third party adoptions whether child care, intercountry or arranged by a voluntary adoption agency.

3.3.1 The Child The child is the starting point and in all jurisdictions the law sets certain prerequisites for his or her entry into the adoption process. Firstly, the subject must satisfy certain status requirements; traditionally, this focused on his or her ‘illegitimacy’. Now it is the child’s legal status and their welfare interests, rather than the marital status of his or her parents, that are usually the primary determinants of eligibility for adoption. At its most basic level, status requirements in virtually all modern western jurisdictions include the necessity that the subject of proceedings meets the legal definition of ‘child’: he or she must be born and be less than 18 years of age; it is not possible to adopt a foetus; though, in some jurisdictions, it is possible to adopt an adult. Additionally, many jurisdictions stipulate that a young person must not have been previously married though the fact that he or she was previously adopted is not necessarily prohibitive. Moreover, the necessity of obtaining a fully informed and free parental consent imposes a minimum requirement in terms of the child’s age as some time must elapse from birth before a mother can be considered capable of making such an important decision; most usually the child has to be at least one week old. Where the child is of sufficient age and understanding then there is usually a legal requirement to either seek their views or to obtain their consent in relation to the proposed adoption; in either case this to be preceded by provision of appropriate information and advice as to all relevant rights. Secondly, the subject must satisfy availability criteria by being amenable to the courts of the jurisdiction in which he or she is resident. It is usually not possible to lodge an application in respect of a child who is resident elsewhere and thus remains subject to the courts of that jurisdiction. Thirdly, for most of the history of the adoption process, children in this and other jurisdictions have to satisfy explicit suitability criteria before entering the adoption process. Traditionally, in the U.K., Ireland, Australia and in the U.S. a suitable child was one who conformed to an archetypal model by being healthy, white, Caucasian, illegitimate and a baby. Now the suitability threshold is implicitly higher for a child in the context of ‘family’ adoptions and lower as regards ‘agency’ adoptions. The lower suitability threshold is also now apparent in many jurisdictions by the active targeting of special needs children and those with complex behavioural or health needs for adoption coupled with special post adoption allowances and other forms of support. Most jurisdictions now require matters relating to the child’s age, gender, religion, ethnic or cultural background and any special health or social care

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needs to be specifically addressed by the adoption agency involved. In the U.K., the agency’s Adoption Panel is additionally required to be satisfied, except in relation to most ‘family’ adoptions, that all such matters will be appropriately resolved by the proposed adoption. In summary, for a child to enter an adoption process most contemporary western jurisdictions require the following criteria to be satisfied: • • • • •

the child must be a ‘person’ known to the law i.e. he or she must have been born; the availability of the child must be appropriately authorised; the child must also usually satisfy minimum and maximum age limits; conditions relating to residence/domicile etc. must be satisfied; a professional assessment must indicate that adoption would be at least compatible with the specific needs and welfare interests of the child; and • the consent of the child, or their views, depending on whether he or she is of sufficient age and discernment, must be obtained.

3.3.2 The Birth Parent/s In most western jurisdictions the appearance of a birth parent in adoption proceedings will be as either donor parent or respondent. In both instances there is usually a statutory requirement that the parent/s be professionally assessed by a registered adoption agency and have access to a counselling service. In the U.K., except for ‘family’ adoptions, the circumstances of the birth parent/s will also be scrutinised by an Adoption Panel. In the former case, certain threshold requirements must be met by the relinquishing birth parent/s or legal guardian of a child. Eligibility criteria, for example, as demonstrated by being amenable to the courts though not necessarily resident within the jurisdiction, must be satisfied. Also there must be no evidence of illegal practices; in some jurisdictions this means that the selling or smuggling of children for adoption purposes is specifically prohibited. Whether married or not, in most jurisdictions any parent with full parental responsibility is entitled to voluntarily relinquish a child for adoption; though the consent of the other parent must be obtained or the need for it dispensed with. In some jurisdictions, this is not the case as it is not legally possible for a married parent to abandon all rights and responsibilities in respect of their child; though, in a few extreme circumstances, these may be removed by court order. An interesting permutation, reflecting the different balance struck between public and private interests in modern western jurisdictions, is the nature and extent of any rights which the birth parent/s may exercise or retain when their child enters the adoption process. In some jurisdictions, such as Northern Ireland, the birth parent/s may determine the religious upbringing of their child. In others, such as New Zealand they have the right to choose the adopters. In the U.K. jurisdictions and elsewhere, although not for example in Ireland, adoption orders may be accompanied by orders granting rights of ongoing contact in favour of the birth parent/s.

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In general, the law imposes least requirements where a child is being voluntarily admitted to the adoption process by his or her unmarried mother. The informed consent of the latter is the only absolute necessity; increasingly in modern western jurisdictions the involvement if not the consent of the unmarried father is also sought. Where the adoption is in respect of an overseas child, then evidence of that consent must be available to the court. Where the need for parental consent is obviated by permanent absence, death or by judicial removal of parental rights the court will instead require the consent of the person or body legally charged with responsibility for the child. In some jurisdictions legislation provides for circumstances in which consent may be revoked. Traditionally ‘legitimate’ children could not be adopted within the lifetime of either parent, as this was viewed as undermining the legal integrity of the marital family unit. Usually, however, the law no longer draws such an inference. Provided evidence of legal status and the necessary consents are available, then in most jurisdictions any parent or parents, whether married or not, may enter the adoption process on a consensual or coercive basis. Where the birth parent is appearing as respondent, for example a divorced father objecting to the adoption of his marital child, the court is usually unable to make the adoption order unless statutory grounds exist for dispensing with his consent. In summary, the role of the birth parent/s at point of entry to the adoption process will, in most contemporary western jurisdictions, require the following criteria to be satisfied: • ascertaining legal status regarding marriage, domicile, residence, parental responsibilities etc.; • post-counselling consent of birth mother; • notice served upon or consent of birth father; • consent for disclosure of health information on child; and • ascertaining any pre-conditions for adoption.

3.3.3 The Adopters Adopters, in particular, must meet the full rigour of threshold requirements; though the onus falls unevenly on applicants according to whether they are first or third party adopters. Generally, third party applicants, with in the eyes of the law no inherent reason to offer love care and protection to a child to whom they are unrelated, are required to satisfy both eligibility and suitability criteria. The law governing this varies considerably from jurisdiction to jurisdiction. So, for example, in the U.K. both sets of criteria have traditionally been applied quite prescriptively, in the U.S. they have always been liberally interpreted while in Ireland considerable importance has been attached to an obligation placed upon adopters to ensure the religious upbringing of a child conforms with that of the birth parent/s. In the U.K., the responsibility for ensuring that both sets of criteria are satisfied falls in the first instance to the adoption

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agency involved and then, except for ‘family’ adoptions, to the relevant Adoption Panel. Eligibility criteria usually require adopters to satisfy statutory conditions relating to: • • • • • •

marital status; residence/domicile; income or financial means; no evidence of having procured child by illegal means; character, or lack of serious criminal convictions; and minimum age.

Suitability criteria are additionally required by adoption agencies and although varying to some degree depending on according to whether they are being approved for a specific child or more generally, these will include matters such as: • • • • • •

maximum age; religious and racial compatibility; state of good health; appropriate motivation; quality and duration of relationships; and cultural background and lifestyle.

In recent years certain practice and policy developments have driven some significant changes to the law as it relates to third party adopters. Firstly, a growing volume of intercountry adoptions attracting less rigorous professional scrutiny than other third party applicants led eventually to the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993 which introduced specific legislative provisions that now regulate adopters in this context. Secondly, a policy to maximise the number and range of child care adoptions forced a change in agency perception of adopter eligibility and suitability criteria in application to the often complex health and social care needs of the children in public care. This saw a change in professional emphasis from an ‘adopter led’ to a ‘child led’ approach. Instead of responding to applications by identifying ‘normal’ adopters to be carefully matched—in accordance with characteristics such as race, religion, class and physiological features—to ‘normal’ children, adoption agencies began to sift, sometimes actively recruiting, adopters according to their skills and aptitudes to cope with children with ‘special needs’. In many jurisdictions, this has led to a broad practice of flexibly interpreting eligibility and suitability criteria so as to accommodate adopters who differ from the traditional type by being perhaps older, single, mixed race or of gay or lesbian sexual orientation. Again, in many jurisdictions, the increased availability of post-adoption support services also eased access to the process. First party applicants, however, have traditionally attracted a relaxed approach: eligibility criteria were viewed as unlikely to be contentious and suitability criteria as unlikely to be relevant as the child would, in any event, almost always remain in the care of the applicants—much the same approach is currently evident as regards applications by long-term foster carers. An increase in the rate of family breakdown

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and with it the rise in serial parenting arrangements has seen the adoption process in many jurisdictions being used more by birth parents to secure rather than relinquish rights to their children. In response, many such jurisdictions have in recent years been enacting laws requiring first party applicants to demonstrate that adoption, rather than any other order, is the better means of promoting the welfare of the child concerned.

3.4 Pre-placement Counselling It is a requirement of the law in general that any consent must be informed and given freely with a full appreciation of the consequences. In the context of the adoption ‘contract’ this often requires a counselling service to be made available to all parties at least for that purpose but most usually also for the purpose of assessing any needs, support or service requirements they may have as they prepare to enter the adoption process. The counselling is not always provided by the agency responsible for placing the child, indeed this would often be unwise, but that agency is usually the one responsible for ensuring its provision. Most jurisdictions now have legislative provisions requiring that pre-placement counselling services be offered to all parties.

3.4.1 The Birth Parent/s Pre–placement counselling services are most usually arranged, if not provided, by adoption agencies and directed towards the birth parent/s of children the agency is considering placing for adoption; traditionally a service associated with the needs of unmarried mothers. In most jurisdictions the provision of this service is now a statutory requirement to be offered to both parents regardless of their marital status; although in relation to fathers, the duty is sometimes restricted to the provision of counselling services to those vested with legal parental responsibilities. At a minimum the service entails advising the parent/s as to the legal consequences of any adoption decision taken in respect of their child, providing the information necessary and ensuring that this has all been fully understood. It also entails exploring with them all feasible alternative options and, insofar as the law of the jurisdiction permits, establishing whether the parent/s wish to exercise any residual rights in relation to their child such as to maintain a level of contact or determine nature of religious upbringing. It may extend to offering a therapeutic relationship enabling the parent/s to work through their feelings and be reconciled to the decision taken. The duty to provide this service now falls mainly on public care agencies and is most often directed towards the birth parent/s whose child is to be the subject of a compulsory adoption placement by that agency. In such cases parental consent is not always an issue but in all other cases the onus rests on the service provider to satisfy themselves that a fully informed consent has been given and given free from any undue pressure.

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3.4.2 The Child Where the child concerned is of an appropriate age and level of understanding, then there is usually a statutory requirement that the adoption agency involved at least seeks their views and ensures that a counselling service is provided appropriate to that child’s needs. Again, the service is directed as a minimum towards ensuring that appropriate information is made available, that all feasible options are explored and that the child has an understanding of the consequences that will follow from the making of an adoption order. The counselling will take into account any issues arising from the child’s age, gender, religion, ethnic or cultural background and any special health or social care needs. In relation to a ‘mature minor’ the duty may be to establish whether he or she fully consents to the proposed adoption in addition to the obligation to provide a counselling service. The latter may extend to exploring the child’s attitude towards maintaining contact with members of his or her family of origin. It will involve advising the child regarding any rights the law of their jurisdiction may provide in relation to matters such as contact conditions and postadoption access to information. Such work is often viewed as requiring a high level of skill and may necessitate the involvement of specialists.

3.4.3 The Adopters Again, most jurisdictions impose a statutory obligation upon adoption agencies to provide such counselling as is necessary to ensure that prospective adopters fully understand and accept the legal consequences that will follow from the making of an adoption order. This duty will usually require the agency to satisfy itself that the prospective adopters appreciate the effects of the order on their rights and responsibilities in relation to matters such as care and protection, inheritance and citizenship. It will entail ensuring that they understand and are willing to comply with any possible conditions that may represent the ongoing legal rights of others in relation to matters such as contact and religious upbringing. It will explore their knowledge of and entitlement to any available professional support services, adoption allowances etc. The counselling should also address issues of willingness to share information with the child as to his or her family and perhaps culture of origin and their acceptance of the child’s eventual right to access information held in agency files. The prospective adopters will most usually have counselling opportunities available to them in the context of their relationship with the assessing and/or the placing adoption agency (where, as in intercountry adoptions, these are the functions of separate agencies).

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3.5 Placement Rights and Responsibilities In practice, a child enters the adoption process when he or she is placed with prospective adopters. This placement decision must be taken by a person or body with the requisite authority; an initial consent is a legal necessity.

3.5.1 Placement Decision Traditionally, this decision was a private one taken by birth parent/s or guardian in the belief that it offered the best way of serving the child’s welfare interests. It was sometimes implemented by a direct placement or by placement through the good offices of an intermediary. It was most often implemented in favour of a third party or stranger but not infrequently a relative such as an uncle or grandparent was the parental choice for placement. It necessitated a complete change in the child’s living environment. In some jurisdictions, such as in New Zealand and certain states within the U.S., choice of placement may still be determined by the birth parent/s. In the U.K. jurisdictions and in most other modern western nations, this traditional right has been statutorily removed and replaced by a requirement that the placement decision is taken by a registered adoption agency. Nowadays, in many jurisdictions, the majority of such decisions are still taken privately, by birth mothers supported by their spouses, but these are decisions to adopt rather than to relinquish the children concerned. This has led to the current position where most adoption decisions are still authorised by birth parents but now do not necessarily entail a change of placement. In addition, in all jurisdictions a growing proportion of decisions are public policy driven. Most evident are those relating to children in public care. In the U.K., following policy developed in the U.S., specific statutory grounds for dispensing with parental consent and authorising an adoption placement despite parental opposition have been in place for some years (see, further, below). Decisions taken by the courts—subsequent to child care proceedings initiated by health authorities on the grounds of parental abuse, neglect or inadequacy—are now determining the placements of many children. Judicial decisions, however, are preceded by those of child care professionals which in some jurisdictions, such as those of the U.K., are in turn subject to the recommendations of an Adoption Panel. To this body falls the responsibility to assess and make recommendations regarding all child care and intercountry adoption placements. The policy initiatives of foreign jurisdictions have also played a significant role in fuelling the rise and fall in numbers of intercountry placements. For example, the policy of the Romanian government to make available the occupants of its state orphanages to foreign adopters directly led to many thousands of placements for children in home environments far removed from their kin and cultural contexts of birth.

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3.5.2 Placement Supervision A legal requirement to ensure that an adoption placement is safeguarded, until such time as a court or other body determines whether or not an adoption order is to be made in respect of the child concerned, is usually mandatory. The duties to safeguard the child’s welfare interests rest most rigorously upon all placement agencies but apply also, though with less intrusiveness, to family adoptions from notification to hearing. Most often, once made the placement cannot be terminated without prior approval of the placing agency or court.

3.6 The Hearing and Issue of Order/s In most jurisdictions, although not in Ireland, the hearing of an adoption application is a judicial responsibility. Whether judicial or administrative, satisfying the statutory grounds relating to eligibility, suitability and consent will itself be insufficient to allow the process to conclude with a granting of the order sought. Whereas any contested application will fail because the statutory grounds have not been met, no contested or uncontested application (even where the grounds have been met) will succeed unless the court is assured that the welfare test is also fully satisfied. Applying the test may result in the issue of an altogether different order or no order at all.

3.6.1 Where Consent Is Available Adoption in the U.K. and elsewhere was traditionally a largely consensual process. Where the necessary consents were available or could be dispensed with and all statutory criteria were met, then no obstacle existed to prevent a court or similar body from concluding the adoption process by granting the order sought. Nowadays in most jurisdictions the informed consent of an older child, the subject of proceedings, will also be sought; though this is not always regarded as determinative. In many jurisdictions, the availability of all required consents will not necessarily prevent consideration of whether an order other than the one sought would not offer a more appropriate means of ensuring the welfare of the child concerned.

3.6.2 Where Consent Is Not Available In recent decades, non-consensual adoption applications have become a prominent feature of the law in some modern western jurisdictions. These now sometimes provide specific statutory grounds for dispensing with parental consent on grounds

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of child neglect or abuse as well as on the traditional grounds of parental absence, incapacity or death. Allowance is also generally made for contested family adoptions.

3.6.2.1

Grounds for Adoption from the Child Care and Protection System

The specific synchronisation of statutory grounds for dispensing with parental consent with those of child care and protection is a very significant development in the modern family law of some jurisdictions. Parental fault, as justifying an application for freeing or for adoption, has finally bridged the gap between the public and private sectors of this law. The rights of an abusing parent who falls foul of statutory care proceedings may now not only be qualified by the issue of a care order but may also be abrogated by an adoption order. From statutory origins based on serving the private parental interests of a closed nuclear family unit, the legal functions of adoption in some jurisdictions have now been strategically re-positioned to openly serve a public interest in rescuing a child from parental abuse and providing permanent alternative family care.

3.6.2.2

Grounds in Contested Family Adoption

In the context of first party adoptions, non-consensual applications also pose a fundamental dilemma for the policy, law and practice of modern western jurisdictions. As parenting becomes less marriage based and features looser ties with extended family networks, transient home and locality links and serial care arrangements, the circumstances in which in can be safely predicted that the permanence and exclusive nature of an adoption order will be an appropriate legal intervention in private family relationships are decreasing. The use of adoption as an extreme form of parental custody order is becoming a policy issue in many jurisdictions. Some jurisdictions now provide a statutory power for alternative orders to be made as indicated by the welfare interests of the child concerned, in either public or private family law, at judicial discretion.

3.6.3 The Orders Available Adoption being traditionally regarded as a matter of private family law, it was customary for many jurisdictions to legislatively provide the judiciary with the power to make an alternative private law order in the rare event of an adoption application not succeeding. Some jurisdictions provide such a power to be used in circumstances where the grounds for adoption have not been satisfied but those for an alternative order in private or public law can be met. Yet again, there are jurisdictions where

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the matter is left totally to judicial discretion; the order to be made is the one most appropriate for the welfare interests of the particular child.

3.7 Thresholds for Exiting the Adoption Process There is no general right to adopt or to be adopted. The ‘welfare test’, though variably interpreted, provides the single over-riding threshold criterion for exiting the adoption process.

3.7.1 The Welfare Interests of the Child Whether an adoption order can be made is determined in accordance with the statutory criteria relating to eligibility, suitability and consent. Whether it will be made is determined by the welfare test. The welfare test in adoption proceedings has three functions: • it identifies the ‘substance’ of welfare in relation to the child concerned; • it indicates the professionals required/permitted to bring welfare related matters before the court; and • it defines the weighting to be given to such matters in deciding whether or not to make an adoption order. Firstly, the making of an adoption order is conditional upon a finding that to do so would be at least compatible with the welfare interests of the child concerned; which entails a careful analysis of matters constituting those interests. The wishes of an older child regarding his or her proposed adoption have to be ascertained and taken into account. Expert witnesses may be called to give evidence and that evidence may have a determining weight. Whether contested or not, information on matters constituting welfare interests will invariably be required by the court or other such body before any decision is taken. Secondly, in most jurisdictions the duty to bring welfare considerations before the court rests heavily on a range of specified agencies and/or on such court officers as a guardian ad litem. Usually this duty necessitates completion of comprehensive reports detailing the family background and needs of the child, his or her views— where appropriate—regarding the proposed adoption and a professional assessment of the probable outcome for the child if the order is made. In some jurisdictions there are legislative provisions requiring the legal representation of a child’s rights and welfare interests before determination of an adoption application can be made. This is held to be necessary because “children must generally rely on other persons to present their claims and represent their interests and may not be of an age or capacity to authorise steps to be taken on their behalf in any real sense” and in view of the

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“growing recognition of the vulnerability of children and the need to provide them with specific protection of their interests”.1 Thirdly, the weighting given to the welfare factor in adoption proceedings has always been a contentious matter reflecting the balance struck in any jurisdiction between public/private interests and parent/child rights in this area of family law. Traditionally in the U.K., both legislative intent and judicial practice have painstakingly differentiated between the paramount weighting given to welfare interests in child care proceedings and a lesser weighting ascribed to such interests in adoption proceedings. In England, however, this distinction has now been statutorily erased following a government policy initiative to expedite child care adoptions: in effect the welfare interests of a child have been repositioned to act as a threshold test for entry to the adoption process. In Northern Ireland the traditional approach continues, as the law has not yet been similarly amended, and it has long prevailed in the Republic of Ireland. The weighting given to welfare interests will also usually differ to some degree in relation to the class of applicant. So, first party applicants may not be subject to the same level of pre-placement scrutiny as third party applicants while non-consensual applicants may find their adoption order qualified by a contact condition imposed to safeguard an aspect of a child’s welfare.

3.8 The Outcome of the Adoption Process In all modern western jurisdictions, legislative intent began by being almost exclusively concerned with regulating the consensual third party applications of indigenous, healthy and in all respects ‘normal’ non-marital babies. From that common starting point each jurisdiction has steadily adjusted its legislative provisions in response to the pressure from emerging areas of common social need which has inevitably led to a change in the balance struck between public and private interests.

3.8.1 Adoption Orders and Third Party Applicants This, the type of order originally legislated for, has everywhere declined both in aggregate and as a proportion of total annual orders. Unconditional, consensual, third party adoptions now form a minority in the adoption process annual output of some modern western jurisdictions. This is so despite the fact that orders in respect of children from overseas have shown a slight increase and those made in respect of children suffering from learning difficulties, physical disability or behavioural problems are slowly becoming more common. Unconditional but contested adoption orders, where the opposition is from a culpable parent

1 See,

S.D., D.P., and A.T. v. the United Kingdom, Application No. 23715/94 (1996).

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or parents, form a significant and growing proportion of annual orders made. The child concerned will often be the subject of a care order and may well be ‘legitimate’. Adoption orders accompanied by an order, usually permitting contact with a member of the adopted child’s family of origin but sometimes requiring a specified religious upbringing, now constitute a growing proportion of annual orders. In many jurisdictions, ‘open’ adoption is becoming more common, representing an increasing public commitment to acknowledge and promote the independent interests of a child, over and above the interests of birth and adoptive parents, before and after the issue of an adoption order, to further their lifelong welfare. This is also apparent in the statutory provision of post-adoption support services which again indicates a recognition that the long-term welfare interests of an adopted child may well require to be sustained by public resources.

3.8.2 Adoption Orders and First Party Applicants In most modern western jurisdictions unconditional consensual orders in favour of first party applicants have for some years constituted the main outcome of the adoption process. They often concern older children and, because such applications are open to professional and judicial challenge on their merits, some are likely to be diverted to other proceedings. A characteristic of such adoptions in many jurisdictions is the fact that some adoption orders will also be accompanied by an order directing arrangements for contact between the adopted child and members of their birth family.

3.8.3 Adoption Orders and Relatives A feature of the adoption process in many contemporary modern jurisdictions is the growing minority of orders now made in favour of grandparents. These applications are susceptible to professional or judicial challenge.

3.8.4 Other Orders The outcome of a small but growing proportion of adoption proceedings is now likely to be the issue of an order other than the one sought. In the U.K. and in Ireland, whether contested or not, an adoption application may at judicial discretion conclude in the issue of a different private law order.

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3.9 The Effect of an Adoption Order In most if not all jurisdictions the traditional outcome of the adoption process for many generations was either no order or a full order with its characteristic permanent, exclusive and absolute legal effects on all parties. This has been dramatically changed in all modern western jurisdictions by the statutory introduction of information rights, contact registers, schemes for payment and support and the possibility of conditions being attached to adoption orders or the issue of alternative orders. In particular, the traditional consequences of an order on the legal status of the parties involved have changed.

3.9.1 Effect on the Child Generally, the law in most jurisdictions states the primary effects of an adoption order to be that thereafter the child’s legal status cannot be anything other than ‘legitimate’, he or she will bear the surname of the adopters and in all respects is to be treated in law as their child. Because the child’s status is thereafter defined by that of the adopters so also, for the duration of childhood, are all matters of residence, domicile and nationality. The succession rights of an adopted child are usually expressly addressed by legislation and provide that for most purposes there should be no distinction between the inheritance rights of a parent’s natural and adopted children. Usually, also, such legislation provides that adoption does not affect the law relating to marriage and incest (i.e. an adopted person may not marry anyone he or she would have been prohibited from marrying if the adoption had not occurred). In short the legal effect of an adoption order on the status of the child concerned will most usually be: • • • •

prevention of ‘illegitimacy’; assumption of the same name, residence, domicile and citizenship as the adopters; assumption of the same inheritance rights as an adopter’s birth child; and the acquisition of such rights as may be attached by condition to the order.

These legal incidences of adoption invariably apply regardless of the type of adoption (e.g. ‘open’ or intercountry etc.) and will prevail at least throughout childhood.

3.9.2 Effect on the Birth Parent/s Again, in most jurisdictions the law states the primary effects of adoption on the birth parent/s to be the abrupt, permanent and absolute termination of their rights and responsibilities in respect of the adopted child. It will also operate to extinguish

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any court order relating to the child and any agency directive requiring payments for the child’s maintenance or upbringing. The law is not always as certain regarding the right of the child to inherit from the birth parent/s; in some jurisdictions the adopted child will retain the right to benefit from the estate of the birth parent/s unless specifically excluded. However, for most purposes the birth parent/s will be treated in law as if the child had never been born to them. In summary, the main legal effects of adoption on the birth parent/s are to: • terminate all parental rights and responsibilities; • extinguish any court order imposing any liability upon them in relation to the child; • remove any obligation to provide for the child by will or testament; and • to grant such rights as may be attached by condition to the order.

3.9.3 Effect on the Adopters The law in most jurisdictions states the primary effect of an adoption order on the adopters to be the vesting in them of all parental rights and responsibilities in respect of the adopted child. There is usually a specific legislative provision declaring that in any will, testament or in the event of intestacy, in the absence of any statement to the contrary, the estate of the adopters will devolve to the adopted child as though the latter was their birth child. For most purposes the birth parent/s will be treated in law as if the child had been born to them though in some jurisdictions exceptions are made to the rules relating to consanguinity so as to permit marriage within degrees of blood relationship that would otherwise be prohibited. The main legal effects of an adoption order on the adopters are to: • vest in them all parental rights and responsibilities, subject to such constraints as may be specified in any attached condition/s; and • create a presumption of entitlement to inherit from their estate.

3.10 Post-adoption Support Services Traditionally, in keeping with the essentially private nature of adoption, once an order was made then the door was closed on the newly formed family unit, professional intrusion in its affairs ended and no further contact with public service agencies was anticipated. However, in recent years there has been a growing recognition that such families should be entitled to call upon the state for ongoing support services if required and a reciprocal recognition that it is in the state’s interest to inject such resources as are likely to forestall a placement disruption and cause a child to be admitted to public care. As many jurisdictions began to accommodate and give effect to a policy of increased use of adoption as a resource for public care bodies, it has become customary for the latter to facilitate this by providing such short or

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long-term support and respite services as are likely to sustain the child within that care arrangement. Currently, these support services are usually confined to third party rather than first party adopters and are not always extended to benefit the birth parent/s.

3.10.1 Child Care and Protection Adoptions In this context, the making of an adoption order marks a double change in the status of the child concerned. He or she is legally transplanted not only from one family to another but also from public to private care. In modern adoption practice and particularly in the context of child care adoption, this transfer is no longer between two necessarily mutually exclusive settings. The child adopted from a public care background is likely to differ from the subject of a traditional adoption by being older, have special health or social care needs and to have formed attachments necessary for promoting his or her post-adoption welfare interests. In modern western jurisdictions there is now a much greater willingness on the part of adoption agencies, courts and the families concerned to facilitate a carry-over of those relationships, services and professional input deemed important for the welfare of the child in their post-adoption life. Adoption allowances are the most common form of support service and have a particular significance for child care adoptions. In the main they are used to continue the support provided to carers under the foster care allowance scheme before they elected to adopt the child they previously fostered. Allowances are also important in securing and supporting adoption placements for those requiring particularly high levels of attention, such as disabled children, sibling groups or those with complex health care or special needs. In many jurisdictions counselling services are quite prevalent, particularly in the increasing number of cases where ongoing contact arrangements are in place to maintain relationships between the adopted child and members of their family of origin. The provision of other specialist services tends to vary in accordance with the particular needs of the children adopted but may include respite care, the services of psychologists and psychiatrists, occupational therapy, speech therapy and possibly nursing care. At a minimum, however, post-adoption support services will consist of: • adoption allowances; and • counselling services.

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3.11 Information Disclosure, Tracing and Re-unification Services The traditional guarantee of absolute and permanent confidentiality, given by an adoption agency to a mother voluntarily relinquishing her baby for adoption, has become steadily diluted in all modern jurisdictions in recent years. An adopted person now generally has the right to basic information about the fact and circumstances of their adoption, the means for accessing that information and an entitlement to related counselling services. The statutory introduction of information disclosure procedures, contact registers, tracing and re-unification services have transformed some of the more traditional characteristics of adoption.

3.11.1 Information Rights In most, jurisdictions information disclosure is associated more with the rights of an adopted person rather than with the needs of adopters or the birth parent/s. This former is generally restricted to the adopted adult. For an adopted child, where such a young person has not reached the age of 18, it would be most unusual for him or her to have a statutory right to access birth records. Legislative provisions and procedures enabling an adopted person to acquire by right information relating to the circumstances of the adoption have now been introduced in many countries. So, an adopted person under the age of 18 and intending to be married may apply to the Registrar General, or other such body, for a declaration that the intended spouse is not within the prohibited degrees of relationship for the purposes of marriage law. An adopted person over that age usually has the right to make a similar application for a copy of their original birth certificate and has a right of access to information relating to the circumstances of their adoption. For an adult adopted person seeking to access information about his or her sperm donor father, however, where relevant legislation exists this can vary considerably among modern western jurisdictions. Prospective adopters are generally entitled to full disclosure of information relating to any child placed with them, or approved for placement with them, for adoption purposes. The birth parent/s generally have no rights to access information regarding the adopters’ identity, nor to the post-adoption circumstances and whereabouts of the child.

3.11.2 Information Disclosure Duties In addition to the above statutory duties of the Registrar General, or similar government body, it is now also customary to have similar information disclosure obligations

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placed upon such other relevant bodies as the courts and public health care agencies. However, it is the adoption agencies that are central to the adoption process and serve as the primary repository for all adoption information. By virtue of its initial critical role with at least the birth parent/s and child, if not also the adopters, the adoption agency will later be the primary source of information relating to the personal history and circumstances of those parties. For the adopted adult seeking access to information and perhaps to relatives associated with his or her birth family, through the statutory procedures available, all avenues will lead back to the relevant adoption agency. The usefulness of the disclosure procedures will be wholly dependent upon the amount and quality of information recorded and held on file by the agency. In most jurisdictions there are now legislative provisions requiring adoption agencies to maintain their records for a specified minimum period; usually not less than 50 years (see, further, Part III).

3.11.3 Tracing and Re-unification Services For some adopted persons access to information is not enough and contact is sought with a relative, most usually a birth parent, who may well have reciprocal needs. Many jurisdictions have introduced ‘contact registers’ as a means of facilitating the mutually compatible needs of these parties. The purpose of such a register is to hold and co-ordinate information relating to desired contact between adopted persons and members of their family of origin. Right of access to the register is invariably restricted to adopted persons of not less than 18 years of age: any public inspection and search of the registers, books and records are prohibited. The usefulness of this service is restricted to situations where there is matching information in the contact register; many birth parents choose not to be contacted and do not file information. The next step for many adopted persons is to attempt to meet with their birth parent/s; though the latter may also initiate this process. Most jurisdictions now have a statutory or voluntary procedure whereby the relevant adoption agency will undertake to trace and contact the relative and relay the request for a meeting. Where both parties agree, it is probable that the agency will arrange counselling, effect introductions and mediate at least in the initial encounters.

3.12 Adoption Within Family Law In modern western societies, being a parent is now largely a matter of private individual choice. Serial parenting arrangements, together with medical developments allowing adults to choose or reject the option of parenthood, have undone the centrifugal significance that the nuclear marital family once had within the body of private family law. In public family law, an increase in the incidence or detection of

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child abuse and neglect has led to the development of ever more pervasive interventionist strategies by public child care agencies in relation to families. On both the private and public fronts there has been a retreat from the traditional presumption that the legal integrity of the family should be upheld and a falling back to the safer ground that however families constitute or re-constitute themselves they must ensure the welfare interests of any child involved. Adoption is intimately linked to the different public and private proceedings that constitute family law. While it has traditionally reflected the principles of private law, in many modern contemporary western societies it now embodies and is being shaped by the more pervasive principles and pressures influencing practice within the broad body of family law. Adoption has come to incorporate principles drawn from the public and private sectors and this enables it to bridge them both and to perhaps play a key role in bringing a new coherence to law, policy and practice in this area.

3.12.1 Adoption in Its Traditional Family Law Context Traditionally, adoption was the ultimate private family law proceeding; no other order in public or private family law had such an extreme effect. It was wholly a creature of private law: initiated by private applicants; allowing for minimum professional intrusion; and concluding in an order that resolutely sealed the private boundaries of the new family unit. Arguably, this was strongly associated with the dominant patriarchical model of the family unit upheld by Victorian society, entrenched in legislation and vigorously defended in the courts. A legacy that thereafter endured in the legal importance attached to status, to the integrity and autonomy of the family and in the significance of rights of inheritance, perpetuation of the family name, citizenship etc. The role of adoption and the functions it was initially legislatively established to serve in western society may be viewed as intimately tied to this Victorian legacy. In recent years, status in family law has become a much more elastic concept. Illegitimacy, marriage, divorce, residence, ‘child of the family’ etc. are among many examples of designations which have now largely lost their clear and almost immutable capacity to define the status of parties which they held for generations in the family law proceedings of many jurisdictions. Initially, the law was concerned to recognise and protect the marital family unit as the necessary foundation for society and the essential prerequisite for a body of family law. The private sanctity of this unit was afforded special protection. The law regarded status as emblematic of certain specific sets of rights and duties thereby vested in adults and defining their personal and private legal capacities. Private family law and the statutory processes for conferring or extinguishing status were limited in number, clearly defined, absolute and permanent in their effects and rigorously policed by the courts. Public family law was non-interventionist and largely directed

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towards policing parental behaviour that threatened or did not conform to the norms represented by the marital family unit. As times changed the emphasis moved away from protecting the special position of the marital family unit, and the concomitant status of the parties concerned, towards protecting instead the welfare interests of children. Family law is now primarily concerned with giving effect to the public interest in safeguarding the welfare of any child who may be affected by the outcome of status related proceedings whether these are public or private.

3.12.2 Adoption in the Context of Modern Public Law Proceedings In most western jurisdictions, the state as ‘guardian of last resort’ continues to undertake its traditional duty to provide for the public care of children in circumstances where private care is impossible: usually where parents are dead, missing, cannot exercise proper control; or have been convicted of abuse, neglect or of otherwise failing to exercise adequate care and protection in respect of their children. More recently, in keeping with the ethos of ‘partnership’ between child care agencies and parents, such care may also be provided with parental consent; usually for reasons of parental respite, training or illness. In either case the law has usually been at pains to ensure that the limited and specific duties of public child care agencies should not be convertible into a power to make a compulsory adoption placement. Parental consent has been upheld as the essential legal passport for a child to pass from public care to private family via adoption. In some contemporary societies this is no longer the case. Equating the grounds for entry to public care with those of non-consensual third party adoption has been a most significant development for family law as a discipline. This policy is one that now clearly differentiates the family law of modern western jurisdictions.

3.12.3 Adoption in the Context of Modern Private Law Proceedings In most jurisdictions, the legal functions of adoption were legislatively defined and carefully separated from those of such other private law proceedings as guardianship, wardship and matrimonial proceedings; each occupied its own separate well-defined and discrete space within the body of private family law. Their respective legal functions were tightly contained, exercised on a once-off basis to achieve permanency in the status awarded by their respective orders. The emphasis was on clarifying the rights and duties of spouses and parents in proceedings initiated by them and in which

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professional or other agency intrusion was minimal. The legal functions, where they concerned the interests of children, were more about them than for them. This has greatly changed in most modern western jurisdictions. Adoption is now closely aligned to matrimonial proceedings: the legal functions of the former most often being used as an adjunct to the latter; to assimilate the legal status of either a pre-marital child or one from a previous marital relationship. Other proceedings for broad grants of authority, such as in guardianship and wardship, have largely been displaced by narrower, more specific orders which offer multiple options dealing with matters such as where and with whom a child is to live, contact arrangements, prohibited conduct etc. Further, the locus standi of parents, traditionally central to those proceedings, is being challenged by a new recognition accorded to those who bear direct and continuous care responsibility, whether or not they are related to the child concerned. Although an adoption order continues to alter the status of the three parties involved, the order itself has changed; not least in that it is now understood in some jurisdictions as imposing responsibilities on adopters that will endure for the life rather than for the childhood of the adoptee. Its previous draconian effects have been ameliorated by the statutory introduction of possible qualifications. Instead of vesting/divesting wholly and permanently all incidents of status an adoption order may provide for an arrangement which permits a sharing of status attributes. This is indicative of a more generalised and international movement to the same effect in family law as a discipline.

3.12.4 Adoption and Contemporary Family Law Principles The contemporary concept of ‘family’ in modern western society has changed considerably from the Victorian patriarchical model, resting on monogamous, heterosexual, marital union for life, on which the family law of such a society was constructed. The U.N. now defines ‘family’ as: Any combination of two or more persons who are bound together by ties of mutual consent, birth and/or adoption or placement and who, together, assume responsibility for, inter alia, the care and maintenance of group members through procreation or adoption, the socialisation of children and the social control of members.

So, for example, in X and Others v. Austria2 the ECtHR found that a de facto family life existed in a household consisting of two women living in a stable relationship with the child of one of them. The legal functions of adoption are indicative of those occurring elsewhere in family law as the entire body of law becomes slowly more integrated around certain key principles.

2 Application

No. 19010/07, 19 February 2013.

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Family Life

“The central point about family life is that the whole is greater than the sum of its individual parts.”3 The implication arising from this House of Lords assertion is that the primary focus of family law must rest on the strands that bind rather than on membership rights which tend to fragment. As a starting point, this would seem to be a safe, positive, working assumption.

3.12.4.2

Welfare of the Child

A child’s welfare is inextricably bound up in the quality of the relationship established between the parents within the security and comfort of their shared home: welfare is a component part of parental harmony; given the power imbalance, it can only be sensibly construed as a factor of the parental relationship. To the extent that the parent/s or carer/s can establish and maintain a home environment offering security and contentment, the welfare of their child is then reasonably assured. However, in contemporary society where family membership is often transient and outside a marital framework, it is increasingly necessary to identify the members’ legal rights and relationships and differentiate between a primary carer and others. In all modern western jurisdictions, there is now an unmistakable emphasis on ensuring that family law proceedings satisfy a general public interest requirement that all arrangements for the future upbringing of children are subject to much the same controls and supports and are tested against other options before they are legally sanctioned by court order. Mostly, this is evident in the use of the welfare principle to ensure that private and public proceedings are subject to the test that the outcome secures and promotes the welfare interests of the child. This may entail compromises to the order issued by the court that would not have been previously countenanced in either private or public family law. From a position where the welfare principle was accorded a paramount weighting in a restricted number of proceedings and in relation to specified matters, it is now gradually permeating all family law in most jurisdictions.

3.12.4.3

Rights of the Child

The powerful influence of Convention rights and associated case law have in recent years made this principle of central importance to the family proceedings of all modern western jurisdictions (see, further, Sect. 4.4.4). The step from welfare to rights is one which has been made in order to equip children to take their place in an adversarial court system where the numbers of adult

3 Beoku-Betts

(FC) v. Secretary of State for the Home Department [2008] UKHL 39, [2009] 1 AC 115, at para 4.

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litigants, the costs and the shortage of court time might otherwise cause their interests to be treated in a cursory, subservient and paternalistic fashion. The fact of party status, entitlement to legal aid, access to a range of professional support and representation and full exposure to the dynamics of adversarial family law proceedings are among the more prominent accompaniments of a rights approach. The balance to be struck between a child’s welfare interests and their rights is a contentious issue for many jurisdictions.

3.12.4.4

Parental Responsibility

The increased salience given to the interests and rights of children in the family law of modern western jurisdictions has been accompanied by a corresponding decline in the traditional central importance attached to parental rights. The displacement of rights by the principle of parental responsibility has marked a shift in emphasis in family law from structure to content, from status to protection; parents are legally empowered to re-configure their adult-to-adult relationships but have the duty to do so in ways that enable them to continue being responsible for their children. The new priority given to protecting the welfare interests of children has led to a hardening of the onus on those in a position to afford that protection. Certain concepts such as ‘fault’ have lost their traditional currency; whether intended or not, spouses and parents will in law be held accountable for the consequences of their actions or inactions. Other concepts such as ‘unreasonableness’ now pervade family law as indicators of failure to uphold the responsibilities of spouse or parent and justifying removal of their rights as such.

3.13 Conclusion Adoption—law, policy and practice—represents in a particularly intimate and fundamental way the essential characteristics of a society at a specific time and stage in its cultural development. The social functions of adoption reflect the society of which it is a part and are adjusted by it in response to emerging pressures. The legal functions of adoption, being internally referenced and remaining relatively fixed, retain their basic characteristics. This chapter has identified the sequence of stages that constitute the modern adoption process and the range of essential and possible legal functions that are available to give effect to the legislatively determined purposes of each stage. In so doing it has provided the outline for a template that will be applied in later chapters to identify and explore the permutations constituting the legal functions of adoption in other jurisdictions and so permit a comparative evaluation of its social role.

Chapter 4

Adoption, the Conventions and the European Court of Human Rights

4.1 Introduction National adoption proceedings take place within an overall context of rights, duties and principles set by international provisions. It will now often be necessary to also have regard not only to relevant domestic legislation, but also to international treaty law and principles and to a rapidly expanding body of international case law. The international legal context must be taken into account when examining all the jurisdictions studied but the Conventions have a particular bearing on the domestic adoption law of Russia, Romania, Sweden, France, Germany, Ireland and England and Wales. ‘Convention law’, for the purposes of this chapter, is taken to reference either the United Nations Convention on the Rights of the Child 1989 or the European Convention for the Protection of Human Rights and Fundamental Freedoms 19501 or to both. In fact other international instruments also have a bearing on adoption. These include The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 which, together with the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986 and the European Convention on the Adoption of Children 2008, are also very relevant, though of different weight, as they provide the framework for regulating intercountry adoption (see, further, Chap. 5). All contribute to the building of an international rights context for the adoption of children. They also further the growing international harmonisation of principles and processes in family law.

1 See,

further, https://www.unicef.org/crc/ and respectively. Also, note that the Council of Europe, on 03.05.02, adopted the Convention on Contact concerning Children; see, .

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_4

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This chapter begins by identifying the various international courts, regulatory bodies and other entities that provide forums for determining or advising on adoption issues and related policy or procedural matters. Primarily, however, it is concerned with examining how the modern development of the policy, law and practice of adoption has been influenced by the European Convention of 1950 (ECHR) and the decisions of the European Court of Human Rights (ECtHR). It also considers, though to a lesser extent, the United Nations Convention of 1989. The unfolding of various other Conventions form part of the context for constructing an international framework for safeguarding children and these are outlined in the following chapter.

4.2 International Bodies with a Brief for Adoption Policy Adoption, domestic and intercountry, is primarily a matter of concern for the Hague Conference Permanent Bureau but other international bodies also have an interest which from time to time can call for their direct involvement.

4.2.1 The European Parliament In February 2017 this institution passed a resolution calling upon the EU Commission to require all 28 Member States to provide a European Certificate of Adoption as the means for ensuring the automatic recognition of each others adoption orders. It also called for “common minimum standards” to be drawn up for adoption by the Commission to define “best practice” guidelines. This initiative was prompted by concerns that that the existing disparity in national rules could compromise human rights: of some adoptees, including their right to family life, to non-discrimination, to inheritance rights and right to nationality; and of some adopters by impacting on their ability and willingness to exercise their rights of free movement. It is anticipated that such certification, harmonising legal provisions, may well encounter opposition from countries where same sex marriage and adoption by same sex couples have yet to be legalised.

4.2.2 The Council of Europe In addition to other responsibilities, this body works to promote consistency in the various domestic adoption laws of its 47 member States, including Russia. It is known primarily for producing the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms which, although not containing any specific reference to adoption, provides safeguards for private and family life in Article 8 and guarantees the right to marry and found a family in Article 12.

4.2 International Bodies with a Brief for Adoption Policy

4.2.2.1

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Committee of Ministers Recommendation CM/Rec 5, 2010

This Recommendation by the Committee of Ministers for the Council of Europe on measures to combat discrimination on grounds of sexual orientation or gender identity, was adopted by member States on 31 March 2010. It covers a wide range of areas where lesbian, gay, bisexual or transgender persons may encounter discrimination. In the chapter concerning the “Right to respect for private and family life” it provides: 27. Taking into account that the child’s best interests should be the primary consideration in decisions regarding adoption of a child, member States whose national legislation permits single individuals to adopt children should ensure that the law is applied without discrimination based on sexual orientation or gender identity.

4.2.2.2

Commissioner for Human Rights

Established in 1999, this independent and non-judicial office functions in an ambassadorial capacity on behalf of the Council of Europe by engaging with member States to raise awareness about human rights issues and to promote the development of national human rights structures. Adoption and other family related issues are among the matters pursued by the Commissioner. For example, a 2011 study by the Council of Europe Commissioner for Human Rights explains that2 : LGBT [lesbian, gay, bisexual and transgender persons] can adopt a child by one of three procedures. A single lesbian woman or gay man may apply to become an adoptive parent (single-parent adoption). Alternatively, a same-sex couple can adopt their partner’s biological or adopted children without terminating the first parent’s legal rights. These are so called ‘second-parent adoptions’ and give the child two legal guardians. Second-parent adoptions also protect the parents by giving both of them legally recognised parental status. The lack of second-parent adoption deprives the child and the non-biological parent of rights if the biological parent dies or in the case of divorce, separation, or other circumstances that would bar the parent from carrying out parental responsibilities. The child also has no right to inherit from the non-biological parent. Moreover, at an everyday level, the lack of second-parent adoption rules out parental leave, which can be harmful financially for LGBT families. The third procedure is joint adoption of a child by a same sex couple.

It then lists those few countries which provided for same sex adoption and notes the very many which, at that time, did not.

4.2.2.3

The Venice Commission

This organ of the Council of Europe was established in 1990 and has a membership of 60 member states (the 47 members of the Council of Europe plus 13 others). Its primary task is to assist and advise individual countries in constitutional matters in 2 Council

of Europe Commissioner for Human Rights, ‘Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe’, Council of Europe Publishing, June 2011.

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order to improve functioning of democratic institutions and the protection of human rights. It does so by appointing a working group of rapporteurs to advise national authorities on relevant issues.

4.2.3 The United Nations Founded in 1945 to promote international co-operation and prevent further wars, the UN is now the world’s largest and most powerful human rights organisation. It works on behalf of its almost 200 member States to maintain international peace and security, conciliate disputes, promote human rights, foster social and economic development, protect the environment, and provide humanitarian aid in cases of famine, natural disaster, and armed conflict. It has been responsible for formulating such foundational human rights instruments as the Universal Declaration of Human Rights 1945, the 1966 International Covenant on Civil and Political Rights together with the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child 1989 and the Declaration on the Rights of Indigenous People 2006.

4.2.3.1

The UN Human Rights Council

This body was established in 2006 when it replaced the UN Commission on Human Rights, which was formed in 1946. This subsidiary of the General Assembly works with the High Commissioner on behalf of its 47 member States to oversee human rights issues for the UN. Among the many human rights themes addressed by the Council are those relating to women’s rights, LGBT rights and the rights of racial and ethnic minorities; areas which at times interface with domestic and intercountry adoption. It has been weakened by the U.S. decision to withdraw in June 2018.

4.2.3.2

UN Special Rapporteur

The remit of this official—examining the sale of children, child prostitution and child pornography—has been extended to include illegal adoptions.3 A report on this matter was submitted to the UN Human Rights Council in 2017 recommending new measures to combat illegal adoptions, including proposals for tackling the systems in which such practices occur.4 It noted that “it is high time that all parties concerned put the best interests of the child at the centre of adoptions”.

3 Such activity clearly violates Article 3(1) of the Optional Protocol to the Convention on the Rights

of the Child on the Sale of Children, Child Prostitution and Child Pornography. further, at: https://wunrn.com/2017/04/illegal-adoptions-un-special-rapporteur-report-2017.

4 See,

4.2 International Bodies with a Brief for Adoption Policy

4.2.3.3

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The United Nations Guidelines for the Alternative Care of Children

These Guidelines, introduced in 2009, were intended to enhance UN CRC implementation “regarding the protection and well-being of children deprived of parental care or who are at risk of being so” (para 3). They start from the general principle that efforts should primarily be directed towards enabling children to remain in or return to the care of their parents. Removal from Family of Origin Removing a child from the care of the family should be seen as a measure of last resort and should, whenever possible, be temporary and for the shortest duration possible (para 14). The rights and responsibilities inherently vested in parents should primarily attract State support and intervention without parental consent is only justified as a measure of last resort.5 Children temporarily or permanently deprived of their family environment, or in whose best interests cannot be allowed to remain in that environment, are entitled to special government protection and assistance (UN CRC, Article 20(1)). Alternative Care Such alternative care can include “foster placement … adoption or, if necessary, placements in suitable institutions for the care of children” (UN CRC, Article 20(3)). Decisions regarding children in alternative care should have due regard for the importance of ensuring children a stable home and meeting their basic need for safe and continuous attachment to their care givers, with permanency generally being a key goal (para 12). Family Based Care In accordance with the predominant opinion of experts, alternative care for young children, especially those under the age of 3 years, should be provided in family based settings (para 22). “Where such arrangements are not possible or are not in the best interests of the child, efforts should be made to find a permanent family placement within a reasonable period” (para 44).

4.3 International Courts, Regulatory Bodies Etc. In the absence of any truly international adjudicative body or forum with a specific brief for determining legal issues relating to adoption, the rulings of the European courts have assumed great significance. In particular the judgments handed down 5 See,

for example, Fenton-Glynn, C., ‘Adoption Without Consent: a report for the PETTI Committee’ (2015), at: https://www.europarl.europa.eu/RegData/etudes/STUD/2015/519 236/IPOL_STU(2015)519236_EN.pdf.

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by the ECtHR, over many decades, have grown to constitute not only an evolving body of jurisprudence governing adoption related matters for all 47 member States but also to serve as benchmarks for courts and regulatory bodies elsewhere when addressing similar issues.

4.3.1 The European Court of Justice (CJEU) Officially the Court of Justice of the European Union (CJEU), and normally referred to as the ECJ, this is the highest court in the European Union on matters of European Union law. It was established in 1952 with a role of ensuring that EU law is interpreted and applied fully and consistently throughout the EU. It adjudicates on legal disputes arising between national governments and EU institutions, enforces decisions taken and settles compensation for any entity that has had their interests harmed as a result of the action or inaction of the EU.

4.3.2 The European Court of Human Rights (ECtHR) The ECtHR rules on issues arising from the domestic litigation of 47 member states, including many presently studied, concerning alleged violations of rights enshrined in the Convention and its protocols. In making its determinations, the ECtHR is guided by principles such as ‘proportionality’, ‘compatibility with democracy’ and ‘a margin of appreciation’. The first requires a fair balance to be struck between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights.6 The ECtHR looks at the interference complained of in the light of the case as a whole to determine whether the alleged interference is “prescribed by law” and was: (i) for a legitimate aim which is important enough to justify interfering with a fundamental right, (ii) rationally connected to achieving that aim, (iii) no more than reasonably necessary to achieve it, and (iv) in the light of this, striking a fair balance between the rights of the individual and the interests of the community.7 The second imports a liberal measure of balance and tolerance.8 Frequently the ECtHR can be seen applying the test—is this form of State intervention

6 See: Olson v. Sweden (No 1) (1988) 11 EHRR 299; Sporrong v. Sweden [1982] 5 EHRR 35 at para.

69; Tsirlis and Kouloumpas v. Greece (1997) 25 EHRR 198 at para. 116; Razgar v. Secretary of State for Home Department [2004] UKHL 27 at para. 20; and see, Kozac v. Poland [2010] ECHR 280 (2010) 51 EHRR 16. 7 See: Huang v. Secretary of State for the Home Department [2007] 2 AC 167, para. 19; R (Quila) v. Secretary of State for the Home Department [2012] 1 AC 621, para. 45; and Bank Mellat v. HM Treasury (No 2) [2013] UKSC 39, [2013] 3 WLR 179, 222, para. 20. 8 See, Refah Partisi v. Turkey (2003) 37 EHRR 1, [2003] ECHR 87.

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necessary in a democratic society?9 The third permits States a degree of latitude in their interpretation of human rights obligations.10 Each State enjoys a margin of appreciation when assessing what constitutes ‘discrimination’ and the extent to which differences in otherwise similar situations may justify a corresponding difference in treatment.

4.3.3 The Human Rights Committee (HRC) Composed of a body of independent experts, the HRC is established under Article 28 of the ICCPR, and provides an independent and impartial monitoring function by reporting on implementation of the Covenant by State parties. The latter are required to submit progress reports in compliance with the ‘periodic review process’ to the HRC which in turn identifies deficits and makes recommendations on improvement by means of its concluding observations. This procedure has a uniform application to all UN Member States and operates in conjunction with the Principles relating to the Status of National Institutions (the Paris Principles), adopted by the UN General Assembly in 1993, which sets out the minimum standards required from national human rights institutions if they are to operate effectively and to be considered credible.

4.3.4 Human Rights Commissions It has been customary for human rights issues, including those relating to adoption, to be regulated by a designated national or regional Human Rights Commission, with a right of appeal to the appropriate court. Currently, there are three such regional bodies—the European Commission, the Inter-American Commission and the African Commission—in addition to their national counterparts. In 1991, under the auspices of the UN General Assembly, the ‘Paris Principles’ were agreed which set out a basic template of functions and objectives for every local Commission.

9 See,

Olson v. Sweden (No 1), op cit, where it is explained that to be justifiable such interference must be “relevant and sufficient; it must meet a pressing social need; and it must be proportionate to the need”. 10 See, for example, Lithgow v. United Kingdom (1986) 8 EHRR 329, Fredin v. Sweden (1991) 13 EHRR 784, Abdulaziz, Cabales and Balkandali v. United Kingdom (1985) 7 EHRR 471.

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4.3.5 Other An ever growing list of international treaties, conventions, protocols etc. are constantly enlarging the number of bodies and themes which interface with domestic and intercountry adoption. These include the International Covenant on Economic, Social and Cultural Rights 1966 and the Committee on the Elimination of Discrimination Against Women (CEDAW) which was established under the UN Convention on the Elimination of all forms of Discrimination Against Women with its Optional Protocol. This international treaty, adopted in 1979 by the United Nations General Assembly, refers to the interests of children being paramount in relation to the common responsibility of men and women for their children’s upbringing and development (Article 5(b)) as well as in regard to States Parties’ ensuring the same rights and responsibilities between men and women as parents in matters relating to their children and in matters of guardianship, wardship, trusteeship, and adoption of children (Article 16 (1)(d) and (f)). The Committee reviews and makes recommendations on national reports submitted by the States parties within one year of ratification or accession, and thereafter every four years. The Convention on the Civil Aspects of International Child Abduction, the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, the Charter of Fundamental Rights of the European Union 2000, the European Convention on the Exercise of Children’s Rights 1996 and the Declaration on the Rights of Indigenous People 2006 have a varying relevance, the latter of which makes specific reference to the special features of adoption in an indigenous cultural context.

4.4 International Treaties, Conventions and Protocols Etc. The range of international instruments giving recognition to the needs and rights of children, with a varying degree of relevance for adoption, has been steadily growing. Some have a wide international reach (e.g. the UDHR, ECHR, UN CRC, the Hague Convention and the ICCPR) others are regional (e.g. the African Charter on the Rights and Welfare of the Child).

4.4.1 The European Convention on the Adoption of Children 2008 The provisions introduced by this Convention include: • a requirement that the father’s consent be obtained in all cases, even when the child is born out of wedlock;

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• a requirement that the child’s consent be obtained if the child has sufficient understanding to give it; • a requirement that adoption be available to heterosexual unmarried couples who have entered into a registered partnership in States which recognise that institution, and to single applicants; • it also leaves States free to extend adoptions to homosexual couples and same sex-couples living together in a stable relationship; • a requirement that a better balance be struck between adopted children’s right to know their identity and the right of the biological parents to remain anonymous; and • a requirement that the minimum age of an adopter must be between 18 and 30, and the age difference between adopter and child should preferably be at least 16 years. (See, further, Sect. 5.8).

4.4.2 Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography 2000 (Sex Trafficking Protocol) 2000 This Protocol, appended to the CRC, addressed the many purposes for which children are bought and sold, including adoption. It defined and prohibited the sale of children and, in that context, established the principle that improperly inducing consent, as a means of procuring the adoption of a child, violates human rights and is to be treated as a criminal offence.

4.4.3 The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 Of the four Hague Conventions on matters relating to children11 this one has the distinction of being truly international due to the near global reach of its provisions; by 2019 it had been signed by some 99 States.12 However it is constrained: implementation of its provisions depends upon the voluntary co-operation of Signatory 11 Those being: the Convention on the Civil Aspects of International Child Abduction 1980; the Hague Convention on Intercountry Adoption 1993; the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007; and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996. 12 See, https://www.hcch.net/e/status/adoshte.html.

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States; there is no regulatory body or governing authority. The Preamble explicitly states that this Convention is to be read in conjunction with the UN Convention on the Rights of the Child (UN CRC).13 It is underpinned by principles, sometimes explicitly stated sometimes not, that are intended to guide international practice (see, further, Sect. 5.6.1.2).

4.4.4 The United Nations Convention on the Rights of the Child 1989 The U.N. Convention on the Rights of the Child (UN CRC), signed by nearly 200 countries, was ratified by the U.K. on December 16, 1991. It has now been ratified by all U.N. Member States except for Somalia and the United States.14 It lists 42 substantive rights that comprehensively address the needs of children—including Articles 18, 20, 21, and 35 with direct relevance to adoption—and requires the courts and regulatory bodies to ensure that decisions broadly comply with the general and specific obligations set out in the Convention. While the Convention has no specifically designated means of enforcement, signatory nations are obliged under Article 44 to provide regular reports to the U.N. Committee on the Rights of the Child detailing the progress made on meeting the terms of the Treaty.15 The Committee then makes recommendations to the states, on the basis of those reports, for improvements in national law and practice. This audit mechanism provides a useful tool for promoting transparency and accountability and for benchmarking developments in national law while also facilitating international comparative assessments. The following are some of the more significant provisions of the U.N. Convention with relevance for adoption law and practice.

4.4.4.1

Article 2—The Non-discrimination Principle

Article 2 directs that all Convention rights are to apply to children without exception and without discrimination of any kind. This applies irrespective of the child’s—or his or her parent’s or guardian’s—race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. In the latter respect, it therefore prohibits discrimination on the basis of parental marital status. All appropriate measures must be taken to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, 13 The

Preamble also refers to its links with the 1986 U.N. Declaration. U.S. has signed the Convention but has not yet ratified it. See, Day O’Connor ‘Children’s Rights and Youth Justice in the USA’ International Family Law Journal, 2006 at p. 183. 15 See, Office of the United Nations High Commissioner for Human Rights, Committee on the Rights of the Child: Monitoring Children’s Rights. 14 The

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activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

4.4.4.2

Article 3—The Best Interests of the Child Is a Primary Consideration

Article 3 states the most important principle in the Convention. This Article requires that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration.

4.4.4.3

Article 7—The Right of the Child to Know Their Identity

Article 7 recognises the right of a child to know the identity of his or her parents and under Article 7(1) the ‘right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents’. This is a powerful legal acknowledgement that an adopted person has a right of access to information, in the form of agency records etc., that could potentially contribute to their sense of identity. Arguably, this confers on an adopted child the right to have their parents’ identity recorded on his or her birth certificate (see, further, at Sect. 23.6.1.2).

4.4.4.4

Article 9—The Right of the Child Not to Be Separated from His or Her Parents

Article 9 requires states to ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

4.4.4.5

Article 12—The Right of the Child to Express an Opinion in Administrative and Judicial Proceedings

Article 12 states that the child has the right to express his or her opinion freely and the right to have that opinion taken into account in any matter or procedure affecting the child. This is subject to the caveat that the child concerned is capable of forming his or her own views. Due weight, in accordance with the age and maturity of the child, must be given to those views. In particular the child should be provided the opportunity to be heard in any judicial and administrative proceedings affecting him or her, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

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Articles 13 and 14—The Right of the Child to Self-determination, Dignity, Respect, Non-interference and the Right to Make Informed Decisions

Articles 13 and 14 require the state to ensure that the child has the right to freedom of expression and the right to express his or her own views. Again, rights require a mechanism for their enforcement and this is provided at the discretion of State authorities.

4.4.4.7

Article 18—The Primary Responsibility for the Upbringing of a Child Rests with the Parent/s

Article 18 requires the state to render appropriate assistance to parents and legal guardians to facilitate the upbringing and development of their children. It requires the state to ensure that children of working parents have the right to benefit from those child care services and facilities for which they are eligible.

4.4.4.8

Article 20—State Duty to Protect Child Without Family

Article 20.3 suggests that: Such care could include, inter alia, foster placement, Kafala of Islamic law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.

Article 20 requires the state to provide care for a child deprived of a family environment and to have due regard to the child’s cultural background when doing so. An interventionist approach to vulnerable families ensures the provision of state care in the circumstances outlined in this Article. However, the quality and permanence of such care arrangements are often jeopardised by forced reliance upon serial foster care placements while the protection afforded to the children concerned cannot be guaranteed. Following extensive debate among the professionals and agencies concerned, there is no doubt that state care is now provided on a culturally sensitive basis and that transracial adoption placements are arranged only after due consideration has been given to the issues involved. However, it could be argued that intercountry adoption in practice is very often undertaken on a culture-blind basis with little concrete allowance made for measures to bridge the usually very significant gap between the cultures of adopters and adopted.

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Article 21—Adoption Shall Ensure that the Best Interests of the Child Shall Be the Paramount Consideration

Article 21 is of particular significance for adoption as it requires those State Parties that recognise and/or permit adoption to give paramount consideration to the welfare interests of the children concerned when doing so. It requires State Parties to: (a)

(b)

(c) (d)

(e)

ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; recognise that intercountry adoption may be considered as an alternative means of a child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; Ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it; and Promote, where appropriate, the objectives of this article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.

Article 21(d), in conjunction with Articles 8 and 32 of the Hague Convention, requires a State Party to take all appropriate measures to ensure that adoption placements do not result in any improper financial gain for any of the parties involved.

4.4.4.10

Article 25—Adoption Placements Must Be Subject to Periodic Review

Article 25 requires periodic review of placements of all types, including foster care and residential units, to ensure that no child in state care is overlooked.

4.4.4.11

Article 27—Every Child Is Entitled to a Reasonable Standard of Living

Article 27 requires the state to recognise the right of every child to a standard of living adequate for that child’s physical, mental, spiritual, moral and social development.

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Article 35—Prevention of Trafficking in Children

Article 35 requires State Parties to: take all appropriate national, bilateral and multilateral measures to prevent the abduction, the sale of or traffic in children for any purpose or in any form.

Trafficking has recently become a significant problem as a consequence of the ongoing migrant crisis which began in 2015 and has now seen several million displaced people move northwards from the greater Middle East and more generally from the southern hemisphere. The courts are increasingly referring to this provision in the context of intercountry adoption applications when issues arise regarding improper payments and uncertainty as to consents.

4.4.4.13

Articles 44 and 45—Every State Is Required to Audit, Progress and Publish a Report

Articles 44 and 45 require a State Party to report on the measures it has adopted which give effect to the rights recognised in the Convention and on the progress made on enjoyment of those rights.

4.4.5 The Hague Convention on Civil Aspects of International Child Abduction Also known as the Hague Abduction Convention, this treaty ensures that a child internationally abducted by a parent is returned to their habitual country as quickly as possible. This multilateral treaty was developed by the Hague Conference on Private International Law (HCCH) and concluded on October 25, 1980, entering into force on December 1, 1983. As of July 2019, 101 states were signatory parties to this convention.

4.4.6 The International Covenant on Civil and Political Rights (ICCPR) This Covenant, which came into force in 1976, has become particularly important because of its wide international application and accompanying monitoring process; the Optional Protocol has now been ratified by 170 countries. Some of its provisions replicate, reinforce or extend those of the UDHR and the ECHR. Its relevance for adoption is evident, for example, in the recognition given to the fundamental rights to origins information implied in Article 24 and to found a family in Article 23.

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4.4.7 The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and Rulings of the ECtHR All public bodies including courts and local authorities of the signatory states to this Convention have been required, from the date of signing, to ensure that their processes and decisions are compliant with Convention rights. All case law resulting from decisions of the European Court of Human Rights (‘ECtHR’)16 has since had a direct relevance for the courts of the signatory states, even if they are unenforecable. However, most breaches never reach the ECtHR; they are the subject of proceedings in domestic courts and the related judgments serve to reshape practice and forestall the likelihood of future similar breaches. The common law tradition of the U.K. in relation to the family, evolved with a formal emphasis on parental rights, duties and status accompanied by mandatory court proceedings for sanctioning any permanent changes to the legal relationships between the parties involved (see, further, Sect. 1.4.1). This was quite different from the more flexible approach developed elsewhere. Consequently, while there are considerable differences in the law, policy and practice of adoption across the countries of mainland Europe the differences between the latter and the U.K. are of a more fundamental nature.17 This has led to certain tensions as the ECtHR lays down benchmarks for standards to be upheld by all signatory nations. The difficulty in setting common benchmarks for human rights is apparent from even this most cursory analysis of contemporary differences between the U.K. and continental Europe in their approach to adoption. In the Scandinavian countries, for example, the steady decline in consensual domestic adoption and the unavailability of children from public child care has meant that the adoption of babies is now an almost totally intercountry phenomenon (see, further, Sect. 5.3.1.3). In France and more generally in Europe, the absence of statutory powers to remove all parental rights and totally dispense with the need for parental consent means that the adoption experience is virtually entirely a consensual process. The corollary of course is that public child care institutions in those countries have a high investment in family support and long-term foster care services. In the U.K., by way of contrast, the non-consensual use of adoption in relation to children in the public care system has brought with it significant features that are becoming distinguishing characteristics of that nation’s adoption experience. For example, the children involved are often: old enough to have their views taken into consideration, for their consent to be relevant and to have a sense of personal and cultural identity; adopted in sibling groups; suffering from significant health and/or 16 The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a Commission and Court. For judgments of the ECtHR, see https://www.echr.coe.int. 17 See, further, ‘Adoption of Children in the European Union’ (2016), at: https://www.europarl.eur opa.eu/RegData/etudes/BRIE/2016/583860/EPRS_BRI(2016)583860_EN.pdf.

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social care problems; committed to ongoing post adoption contact with their birth parents/siblings; and may be adopted by persons qualifying for ongoing financial assistance. This somewhat disparate national experience of adoption, particularly between the U.K. and the rest of continental Europe, has not yet been the subject of international research to identify the difference in outcomes for children failed by parental care but adopted (as in the U.K.) instead of being retained within alternative public service care arrangements (as in, for example, Sweden). It has, on the other hand, given rise to a range of legal issues with which the ECtHR copes by applying the doctrine of a ‘margin of appreciation’. This doctrine declares that individual states are entitled to act with a level of discretion in accordance with their particular legal tradition. However, in relation to child care adoption this doctrine has a strictly limited application. As stated in Saviny v. Ukraine18 ...notwithstanding a margin of appreciation enjoyed by the domestic authorities in deciding on placing a child into public care, severing family ties means cutting a child off from its roots, which can only be justified in very exceptional circumstances...A relevant decision must therefore be supported by sufficiently sound and weighty considerations in the interests of the child, and it is for the respondent State to establish that a careful assessment of the impact of the proposed care measure on the parents and the child has been made.

As is illustrated in the case law below, the exercise of discretion is only permissible within the judicial parameters established by principles such as ‘necessity’ and ‘proportionality’. All the following provisions have a general relevance for family proceedings, and therefore also for adoption, but some have been applied specifically to adoption cases. They are important and have a potentially direct bearing on the circumstances of those appearing before the court. Accordingly members of the judiciary have cautioned against any tendency to simply refer to them in passing in a routine or ritualistic fashion.19 In fact, contemporary case law contains constant references to such rights which are treated as essential benchmarks of good practice.

18 No.

39948/06 (18 December 2008), at para 49. See also: Kutzner v. Germany no. 46544/99 (26 February 2002), at paras 67 and 81; Moser v. Austria no. 12643/02 (21 September 2006); Kurochkin v. Ukraine no. 42276/08 (20 May 2010); Schalk and Kopf v. Austria, no. 30141/04 (24 June 2010); and Burden v. the United Kingdom [GC], no. 13378/05 (60, ECHR 2008). 19 See, Daniels v. Walker (Practice Note) [2000] 1 WLR 1382 at p. 1387.

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Article 6—Everyone Is Entitled to a Fair and Public Hearing Within a Reasonable Time by an Independent and Impartial Tribunal Established by Law

A majority of applications to the ECtHR have been generated by alleged breaches of Article 6, though it is of lesser direct importance to adoption than Article 8. Due Process This requirement was found to be breached, for example, in Negrepontis-Giannisis v. Greece20 when a Greek court refused to recognise a monk’s adoption of his nephew, which was valid in the USA where an order to that effect had been issued. In Moretti and Benedetti v. Italy,21 the ECtHR, found serious shortcomings in the proceedings followed by Italian authorities when they prevented an adoption application in respect of a child placed in the applicants care by the authorities. The court found it regrettable that their request to adopt had not been examined before the authorities declared the child to be available for adoption and that it had been dismissed with no reasons being stated. Again, in Mizzi v. Malta,22 the ECtHR found that the inability of the applicant to bring civil proceedings to repudiate his paternity of the child constituted a violation of Article 6. Delay Delay in the processes of court or local authority can be harmful to the welfare interests of the children concerned. According to the European Court of Human Rights the following factors should be taken into account when considering whether there has been undue delay in determining a case: • • • •

the complexity of the case23 ; the conduct of the applicant and the other parties24 ; the conduct of the relevant authorities25 ; and what is at stake for the applicant in the litigation.26

20 Application

No. 56759/08, 2011. No. 16318/07, 2010. 22 Application No. 26111/02, 2006. 23 See Glasser v. United Kingdom [2001] 1 FLR 153 where the court recognised that the complexities arising from the case being transferred between jurisdictions required additional reports to ensure that the eventual decision affecting the welfare interests of the child was based on a thorough investigation. 24 See Glasser (ibid.), and Hokkanen v. Finland [1944] 19 EHRR 139, [1996] 1 FLR 289, where, in both cases, the delay was attributable to the party awarded custody refusing to comply with the terms of contact orders. More recently, in Pini and Others v. Romania [2004] EHRR 275, the ECtHR found that the Romanian authorities, by failing for more than three years to take effective measures to comply with final and enforceable judicial decisions, had rendered nugatory the provisions of Article 6. 25 See Bock v. Germany [1990] 12 EHRR 247, where the court held that there had been a breach of Article 6 by the delay resulting from domestic courts seeking an unnecessary number of reports. 26 See H v. United Kingdom [1988] 10 EHRR 95, where the court noted that the irreversibility of adoption proceedings was a factor in the adopters’ failure to apply promptly. Also, see, Mikulic v. 21 Application

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In H v. United Kingdom27 the parent complained of the “deplorable delay” of almost 2 years in court proceedings concerning her contact application in relation to her child in local authority care. By the time the matter was brought before the court almost three and a half years had elapsed since she had last seen her child who was by then well settled with prospective adopters. The court stressed that: In cases of this kind the authorities are under a duty to exercise exceptional diligence since… there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held the hearing.

The court held that the time it had taken the parent to pursue a claim for contact with her daughter—from the first application in wardship/adoption proceedings to the rejection of her leave to appeal to the House of Lords—constituted “excessive delay” and thus breached Article 6(1). This ruling establishes the important duty to expedite proceedings which is not always reflected in national law. Again, in K.A.B. v. Spain,28 the ECtHR was concerned with the adoption—despite the father’s opposition—of a child who had been declared abandoned after his mother’s deportation. The applicant complained that he had been deprived of all contact with his son and that neither he nor the child’s mother had been informed of the proposal to adopt the child. The ECtHR held that there had been a violation of Article 8: in particular, that the passage of time resulting from the authorities’ inaction, the deportation of the child’s mother without the necessary prior verification, the failure to assist the applicant when his social and financial situation was most fragile at the earlier stage, together with the failure of the courts to give weight to any other responsibility for the child’s abandonment and the finding that the applicant had lost interest in his son’s welfare, had decisively contributed to preventing the possibility of reunion between father and son. Legal Representation An essential element of a ‘fair hearing’ is the provision of appropriate legal representation. The court, in Airey v. Ireland,29 held that the Irish State had breached Article 6 when it failed to either make proceedings accessible/to simplify them or to provide legal aid for the applicant who had been left to represent herself.30 In P, C and S v. UK 31 the court was clear that the failure to provide parents with legal representation was in breach of their rights under Article 6 because:

Croatia, Application No 53176/99, ECtHR, 07.02.02 where the court ruled that, given what was at stake for the applicant, the four year delay before hearing did not satisfy the obligation to act with particular diligence to progress the proceedings. 27 Ibid. See, also, Paulsen-Medalen and Svenson v. Sweden (1998) 26 EHRR 260 and Z.M. and K.P. v. Slovakia, Application No. 50232/99, 11.05.2005. 28 Application No. 59819/08, 2012. 29 (1979) 2 EHRR 305. 30 See, X. v. the United Kingdom, Application No. 8158/78 (1980) and Ange Garcia v. France, Application No. 14119/88 (1991). 31 (2002) 35 EHRR 31; [2002] 2 FLR 631.

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…the complexity of the case, along with the importance of what was at stake and the highly emotive nature of the subject matter, lead this Court to conclude that the principles of effective access to court and fairness required that P receive the assistance of a lawyer.

The parents had a right to legal representation in adoption proceedings, including at the administrative stage. As the ECtHR has pointed out “a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees in Article 6” this may involve provision of legal aid if this is necessary to ensure access to such courts.32 Involvement of Parent in Decision-Making Process The ECtHR has assiduously established the principle that those whose interests are at stake in any decision-making process must be afforded every opportunity to fully engage in that process. This is an aspect of the “equality of arms” principle whereby both parties to proceedings must be placed in a position where they have equal knowledge of and be permitted to comment on evidence held by the other.33 So, for example, in Case Soares de Melo v. Portugal,34 among many violations of Article 8, the ECtHR listed “the decision-making process that led to the placement of children in institutions for their adoption, which was not conducted fairly saw the lack of effective involvement of the applicant”.35 This right is also relevant to the issues of disclosure of documents and other evidence to the court and may have a relevance for the availability or otherwise of legal aid. Alleged breaches of a parent’s right of access to their child in care have also been heard under Article 6.36

4.4.7.2

Article 8—The Right to Respect for Private and Family Life

This Article requires respect for a person’s private and family life, their home and correspondence. The ECtHR has found that “private life” incorporates not only the right to respect for decisions to become and not to become a parent”37 but also “the right of a couple to conceive a child and to make use of medically assisted procreation for that purpose”.38 The right is one anchored on preserving a family unit that already exists, but it does not extend to safeguard a mere desire to found a family.39 According to the ECtHR, this right necessitates parental involvement in the decision-making process to a degree sufficient to provide them with the requisite 32 See Gnahoré v. France, Application No. 40031/98 (2001) at para. 38; citing Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 78–79, at para. 59. 33 See P, C and S v. United Kingdom, op cit. 34 Application No. 72850/14 (2017). 35 Ibid., at para. 123. 36 See O v. United Kingdom, B v. United Kingdom, H v. United Kingdom, R v. United Kingdom and W v. United Kingdom (1987) 10 EHRR 29. 37 See, Parrillo v. Italy, Application No. 46470/11 (2015), at para. 153. 38 See, S.H. v. Austria, Application No. 57813/00 (2011), at para. 82. 39 See, Paradiso and Campanelli v. Italy, Application No. 25358/12 (2017), at para. 141.

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protection of their interests.40 If they are not so involved, there will have been a failure to respect their family life. The involvement includes being engaged in the decision-making process relating to the religious education of their children. Essentially the right aims to provide protection for an individual against arbitrary action by public authorities, for example a local authority.41 It places an obligation on the court to ensure that the rights of an individual are properly secured and are protected against infringements by other individuals.42 It also inherently requires procedural fairness. However, the prohibition on public authority interference is made subject to the exception that where to do so is: (a) in accordance with the law; and (b) is necessary in a democratic society43 (i) in the interests of national security, public safety or the economic well-being of the country, (ii) for the prevention of crime and disorder, (iii) for the protection of health or morals or (iv) for the protection of the rights and freedom of others. Restrictions on Private Life There are limits on an applicant’s right to private life under Article 8 of the European Convention; it does not confer upon a litigant an unfettered choice of behaviour. This was demonstrated in X v. Netherlands44 where the Commission dismissed the protest of a 14-year-old girl who objected to being summarily returned by the authorities to her parents. The court held that such action was justified under Article 8(2) in order to protect her health and morals. Any interference with the right to respect for family life, however, will entail a violation of Article 8 unless it was “in accordance with the law”, had an aim or aims that is or are legitimate under Article 8(2) and was “necessary in a democratic society” for the aforesaid aim or aims. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.45 The existence of limits on private rights was again demonstrated in Eski v. Austria46 when the ECtHR ruled that a step-adoption could proceed despite objections from the birth father who had maintained irregular contact with the eight year old child following family breakdown six years earlier: even though the adoption of a minor severs parental ties it can still be compatible with Article 8.47 40 See,

W v. United Kingdom (1987) 10 EHRR 29. for example, Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 and C v. Bury Metropolitan Borough Council [2002] 2 FLR 868. 42 See Airey v. Ireland (1979) Series A No 32, 2 EHRR 305. 43 See, Olson v. Sweden(No 1) (1988) 11 EHRR 299 where it is explained that to be justifiable such interference must be “relevant and sufficient; it must meet a pressing social need; and it must be proportionate to the need”. Advice subsequently echoed in Johansen v. Norway (1997) 23 EHRR 33 where it was observed, that “the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportional to the legitimate aim pursued”. 44 (1974) (Application No. 6753/74) (1975–76) 1–3 DR 118. 45 See, for example, W., B. and R. v. the United Kingdom, 8 July 1987, Series A no. 121. 46 Application No 21949/03, 25 January 2007. 47 See, also, Emonet and Others v. Switzerland (Application No 39051/03, ECtHR, 13.12.2003). 41 See,

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Identity and Access to Information While there is no express protection for the right to identity in Article 8 or any other Convention provision, this has not prevented the court from exploring the extent of a right to information about matters which have a bearing on an individual’s sense of personal identity within the general right to privacy and to family life provided by Article 8. The beginning of this process can be traced to the important decision in Gaskin v. United Kingdom.48 The plaintiff, Gaskin, had spent his childhood in care and he sought to challenge the refusal of social services to give him access to the confidential records they held on him. The ECtHR endorsed the view of the Commission that: …respect for private life requires that everyone should be able to establish details of their identity as human beings and that in principle they should not be obstructed by the authorities from obtaining such very basic information without specific justification.

However, the court stopped short of finding a general right of access to information about family ties or personal background and found instead that compliance with respect for private life requires the state to put in place an in place an independent system which adjudicates on disputes regarding access to confidential data. The right to establish details of identity includes the right to information about a biological parent; as the court reiterated in Mikulic v. Croatia.49 In that case the five year old applicant and her mother instituted civil proceedings to establish paternity and when the alleged father failed to attend for DNA testing on several occasions, the domestic court gave judgment that this corroborated the mother’s testimony that he was the child’s father. The applicant argued before the European Court that her right to respect for her private and family life had been violated because the domestic courts had been inefficient in deciding her paternity claim thereby leaving her uncertain as to her personal identity. The Court agreed unanimously. This right may also prevent a local authority from claiming that its child care records are confidential, to be accessed by the subject only at its discretion. For example, in MG v. United Kingdom50 the ECtHR found that the applicant had been wrongfully denied full access to social services files and to the information held therein. This information would have clarified whether his name had been entered on the child protection register and whether his father had ever been convicted of child abuse. The court was particularly concerned that the applicant had no opportunity to appeal against the agency’s decision.51 The fact that the central issue for the court was the existence of adequate procedural remedies, rather than any personal right of access to information held in official records, was clearly demonstrated in Odièvre 48 (1990)

12 EHRR 36. cit, where the ECtHR recognised that the identity of a child’s parents is integral to the private life of that child under Article 8. The failure, therefore, to provide a procedure whereby a putative father could be compelled to undergo DNA testing to clarify his possible paternity was in breach of the child’s rights under that Article. 50 Application No. 39393/98, ECtHR, September 24, 2002. 51 The introduction in March 2000 of the Data Protection Act 1998, c 29, provides such an opportunity. 49 Op

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v. France.52 The applicant then submitted that denying her access to the information necessary to trace her mother, who had abandoned her at birth and who had expressly requested that information about the birth remain confidential, violated her rights under Article 8. Rejecting her complaint, the Grand Chamber held that the French legislation, which entitled adopted children to certain non-identifying information about their birth parents but prohibited contact where birth parents withheld consent, struck a proportionate balance between the competing interests given the wide margin of appreciation enjoyed by the State in this complex and sensitive area. There was, accordingly, no violation of Article 8 (see, further, below). Later, however, in the factually not dissimilar case of Godelli v. Italy,53 the ECtHR held that the applicant’s Article 8 rights had been violated by Italian legislation which, in cases where the mother had opted not to disclose her identity, did not allow a child—who had not been formally recognised at birth and was subsequently adopted—to request either non-identifying information about his or her origins or the disclosure of the birth mother’s identity with the latter’s consent. While the ECtHR has so far had nothing specific to say about the existence or otherwise of ‘contact registers’ as a means of co-ordinating information relating to desired contact between adopted persons and members of their family of origin, many jurisdictions have introduced such registers and related procedures. Again, the crucial issue is whether or not the existence of such a register, its contents and rights of access to it are prescribed in legislation. Finally, and again without any ECtHR guidance, most jurisdictions now have a procedure whereby the relevant adoption agency will undertake to trace and contact the relative and relay the request for a meeting. Family Life Article 8 guarantees the right to respect for family life but the definition of ‘family’ is not restricted to one based on marriage; it includes unmarried couples, non-marital children and lesbian or homosexual relationships. As the ECtHR has pointed out54 : …the notion of ‘the family’…is not confined solely to marriage based relationships and may encompass other de facto ‘family’ where the parties are living together outside of marriage. A child born out of such a relationship is ipso iure part of that ‘family’ unit from the moment of his birth and by the very fact of it.

Article 8 makes no distinction between the “legitimate” and “illegitimate” family55 : …‘family life’ within the meaning of Article 8 includes at least the ties between near relatives, for instance, those between grandparents and grandchildren, since such relatives may play a considerable part in family life. 52 ECtHR, 13.02.2003. This was most recently endorsed in the U.K. by the decision of the House of Lords in In re P and others (AP) (Appellants) (Northern Ireland) [2008] UKHL 38. 53 Application No. 33783/09, 2012. 54 Keegan v. Ireland, Application No. 16969/90 (1994) Series A No. 290, 18 EHRR 342, at para. 44. 55 Marckx v. Belgium (1979) Series A No 31, 2 EHRR 330, at para. 31.

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Where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be developed and take measures that will enable parent and child to be reunited.56 Parent and Child In successive cases the ECtHR examined the issue of what constitutes ‘family life’ and, as Kilkelly57 has pointed out, broadly found it to be present in the nexus of a parent and child relationship, “in all but very exceptional cases regardless of the parents’ marital status,58 the family’s living arrangements,59 or their apparent lack of commitment to their children.”60 The ECtHR has repeatedly found that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life.61 That nexus is one which, as the ECtHR has recognised, gives the parent a “right to personal development through their relationship with the child”.62 Once it is established that such a nexus exists then the state has a duty to support it.63 In all cases, however, as the ECtHR explained, the existence of such ‘family life’ is a pre-condition for the operation of Article 864 : The right to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence of a family (see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 31), or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999-VI), or the relationship that arises from a genuine marriage, even if family life has not yet been fully established (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 62), or the relationship that arises from a lawful and genuine adoption. (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 148, ECtHR 2004-V) 56 See:

Eriksson v. Sweden, 22 June 1989, Series A no. 156; Margareta and Roger Andersson v. Sweden, 25 February 1992, Series A no. 226-A; Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250; Keegan v. Ireland, op cit; Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A; and Ignaccolo-Zenide v. Romania, no. 31679, § 94, ECHR 2000-I. 57 See, Kilkelly, U., ‘Child and Family Law’ in Kilkelly (ed) ECHR and Irish Law, Jordans, 2004 at p. 112. 58 See, Marckx v. Belgium ibid (unmarried mother and her child); Johnston v. Ireland, no 9697/92, Series A no 12 (1987) 9 EHRR 203 (unmarried parents and their child). 59 See, Berrehab v. Netherlands, no 10730/84, Series A no 138 (1988) 11 EHRR 322. 60 See, C v. Belgium, no 21794/93, Reports 1996-III, no.12, p 915 and Ahmut v. Netherlands, no 21702/93, Reports 1996-VI, no.24, p. 2017, 24 EHRR 62. See, also, Söderbäck v. Sweden, no 24484/94, Reports 1998-VII, no.94. However, purely genetic relationships—such as the relationship between a sperm donor and the child born as a result—are unlikely to constitute family life. See, G v. Netherlands, no 16944/90, Dec. 8.2.93, 16 EHRR 38. 61 See, W., B. and R. v. the United Kingdom, 8 July 1987, Series A no. 121; Olsson v. Sweden (no. 1), 24 March 1988, Series A no. 130; Eriksson v. Sweden, 22 June 1989, Series A no. 156; Margareta and Roger Andersson v. Sweden, 25 February 1992, Series A no. 226-A; McMichael v. the United Kingdom, 24 February 1995, Series A no. 307-B; Johansen v. Norway, 7 August 1996, Reports 1996-III; Bronda v. Italy, 9 June 1998, Reports 1998-IV; and Buscemi v. Italy, Application No. 29569/95, ECHR 1999-VI. 62 Paradiso and Campanelli v. Italy, Application No. 25358/12 (2017), at para. 198. 63 Melo Soares v. Portugal, Application No. 72850/14 (2017). 64 See, E.B. v. France, op cit, at p. 18.

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In fact, the Court has extended its recognition to encompass arrangements that were illegal at the outset but endured for 10 years65 and to include even an intention to establish family life.66 As long as there is evidence of “genuine personal ties” the Court had seemed inclined to recognise the existence of “family life”. The emotional bonds between adult and child constituted private life, warranting Article 8 protection, even in the absence of any biological or legal link.67 This approach changed in 2017 with the important case of Paradiso and Campanelli v. Italy.68 Not withstanding the above well established line of precedents giving a generous latitude to circumstances warranting recognition of “family life”, the Grand Chamber refused such recognition to surrogate parents who had cared for their child for only a short period, on the grounds that: there was no biological link between ‘parents’ and child; the brevity of the relationship (6 months); and the legal uncertainty of their ties with the child.69 In this watershed ruling, a very divided Court found that in international law “emotional bonds per se cannot create family life … a family is to be understood as a natural and fundamental group unit of society, founded primarily by the marriage between a man and a woman … based primarily on interpersonal relationships formalised in law as well as relationships of biological kinship”.70 It would seem that a legal interpretation of what constitutes “family life” will not rest solely on the intentions of the adults involved, nor on an period of parent/child bonding. Further, because of all the uncertainties that may therefter ensue, such intentions need to be operationalized within a legal framework that will allow secure ties to develop, if a viable “family life” can be said to have been established (see, further, below, at Sect. 4.4.7.4). In X, Y and Z v. United Kingdom71 it was held that in determining whether a relationship can be defined as “family life” the following factors are relevant: …including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by other means….

This approach was taken a step further in Lebbink v. The Netherlands72 where the ECtHR accepted that cohabitation was not an essential ingredient of ‘family life’ but, exceptionally, other factors may serve to demonstrate the required constancy of relationships. In this case the father’s position as auxiliary guardian and his established pattern of contact, were sufficient to establish family life with the child.

65 See,

Wagner and J.M.W.L. v. Luxembourg, Application No. 76240/01 (2007). D. and Others v. Belgium, Application No. 29176/13 (2014), at para. 49. 67 See, X v. Switzerland, Application No. 8257/78 (1978). 68 Application No. 25358/12 (2017). 69 Ibid., at para. 157. 70 Ibid., at paras 2 and 3. 71 [1997] 2 FLR 892. 72 Application No. 35582/99, ECtHR, 01.06.2004. 66 See,

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Kafala and Child Much litigation has been generated in western countries by difficulties arising from the distinction between statutory adoption and kafala (see, further, Sect. 5.2.1.1). In Harroudj v. France73 the ECtHR considered the refusal of permission for a French national to adopt an abandoned Algerian baby girl, in her care since 2004 under the terms of a kafala agreement endorsed by an Algerian court. The French court had noted that kafala gave the applicant parental authority, enabling her to take all decisions in the child’s interest, and gave the child the protection to which all children are entitled under the international treaties, but had also pointed out that under the French Civil Code a child could not be adopted if the law of his or her country prohibited adoption, which it did as Algerian family law authorised kafala not adoption. The ECtHR accepted that for the purposes of Article 8 there existed a state of family life between Mrs Harroudj and the child, but upheld the ruling of the French court which denied that the refusal to let the applicant adopt amounted to an “interference” with the applicant’s family life. It found that there had been no breach of the applicant’s human rights. Again, Chbihi Loudoudi and Others v. Belgium74 concerned the applicants ‘adoption’ of their Moroccan niece, who had been entrusted to their care by kafala. The applicants complained in particular of the Belgian authorities’ refusal to recognise the kafala agreement and approve the adoption of their niece, to the detriment of the child’s best interests, and the consequent uncertain nature of her residence status. The ECtHR held that neither the refusal to grant the adoption nor the child’s residence status violated Article 8. It found in particular that the refusal to grant adoption was based on a law which sought to ensure, in accordance with Hague, that international adoptions took place in the best interests of the child and with respect for the child’s private and family life, and that the Belgian authorities could legitimately consider that such a refusal was in the child’s best interests as in this way they could ensure that the parent–child relationship in Morocco and Belgium was maintained. Foster Parent and Child In Moretti and Benedetti v. Italy,75 the Court determined that foster-care of a child for 19 months during the initial important stages of her life fulfilled the conditions of “family life”, enabling an application by the carers to adopt the child to go ahead instead of that of another couple who had sought to adopt her. Again, in Kopf and Liberda v. Austria,76 a period of 46 months of foster-care was similarly recognized. These rulings have particular implications for current practice in the U.K. jurisdictions where: children are most often first placed in short-term foster care, pending casework developments or identification of appropriate long-term foster carers or

73 Application

No. 43631/09, 2012. No. 60125/11, 2017. 75 Application No. 16318/07, ECtHR, 27.04.2010. 76 Application No. 1598/06 (2012). 74 Application

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adopters, and where a policy of adoption as the preferred option for all young children in care prevails; resulting in the procedural necessity to move a young child from their settled foster home and attachments to agency designated adopters. Relative and Child The Commission/court has also found, in the words of Kilkelly,77 that “family life may exist between children and their grandparents,78 between siblings,79 between an uncle and his nephew,80 and between parents and children born into second relationships”.81 Same Sex Relationships and Child The relationship of a cohabiting same-sex couple living in a stable de facto relationship falls within the notion of “family life” and therefore acquires an entitlement to protection just as the relationship of a different-sex couple in the same situation would.82 In X, Y & Z v. UK 83 the court for the first time recognised that family life existed between a child and her social, rather than biological father. In particular, it held that the relationship between a female-to-male transsexual and the child born to his female partner by donor insemination came within the meaning of family life because their relationship was otherwise indistinguishable from that enjoyed by the traditional family. Further, in Gas and Dubois v. France84 the ECtHR held that the relationship between two women who were living together and had entered into a civil partnership, and the child conceived by one of them by means of assisted reproduction but being brought up by both of them, constituted “family life” within the meaning of Article 8 of the Convention. In Salgueiro da Silva Mouta v. Portugal,85 the ECtHR held there had been a breach of Article 8 when a court awarded the mother custody on the grounds that the father’s homosexuality was an abnormality and the children should not have to grow up in its shadow. This decision is a strong statement that discrimination on the grounds of sexual orientation will not be tolerated. The decision in Frette v. France86 is difficult to reconcile with the trend developing in the above case law. In that case it was found to be compatible with the Convention to exclude the single, male applicant from the adoption assessment process on the grounds that his sexuality rendered him ineligible. This was notwithstanding his clear suitability as an adoptive parent, and the fact that the eligibility process was only the 77 See, Kilkelly, U., ‘Child and Family Law’ in Kilkelly (ed) ECHR and Irish Law, op cit, at p. 113. 78 See,

Marckx v. Belgium, op cit, at para 45. Olsson v. Sweden, no 10465/83, Series A no 130, 11 EHRR 259. See also Boughanemi v. France, no 22070/93, Reports 1996-II, no 8, p. 593, 22 EHRR 228. 80 See, Boyle v. UK, No 16580/90, Comm Rep, 9.2.93. 81 See, Jolie & Lebrun v. Belgium, No. 11418/85, Dec. 14.5.86, DR 47, p. 243. 82 Schalk and Kopf v Austria (Application No. 30141/04) 2010. 83 No 21830/93, Reports 1997-II no 35, p. 619, 24 EHRR 143. 84 (Application No. 2595/07), 31 August 2010. 85 [2001] 1 FCR 653. 86 No 10828/97, [2003] 2 FLR 9. 79 See,

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first of two steps to adopting a child under French law. However, in E.B. v. France87 the court reverted to established principles when it ruled that exclusion of individuals from the application process for adoption of children simply because of their sexual orientation was discriminatory and not Convention compliant. Most recently, the court returned to this matter in X and Others v. Austria88 which concerned an appeal by applicants who alleged they had been discriminated against in comparison with different-sex couples, as under Austrian law, second-parent adoption was possible for unmarried heterosexual couples, but not for unmarried same-sex couples.89 The first and third applicants were two women living in a stable relationship. The second was the third applicant’s son, born outside marriage: his father had paternity rights and did not consent to the adoption; his mother had sole custody of him. The three applicants had been living in a common household and the first and third applicants provided joint care for the second. In 2005 the first and second applicants agreed to commence adoption proceedings in the Austrian District Court so as to create a legal relationship between the first and second applicants without severing the relationship with the second and third. This would enable them to obtain legal recognition of their de facto family unit. However, as the Austrian court pointed out, the relationship with the biological father and his relatives under family law would then cease to exist while the relationship with the biological mother would remain fully intact. It refused the application reasoning that the issue whether a member State provides the possibility for two persons of the same sex to establish a legal relationship with a child on an equal footing is a matter for the State itself to decide and no such possibility existed under Austrian law. On appeal to the Regional Court, the case was dismissed without a hearing, the court noting that from the provisions of Austrian family law as a whole it was clear that the legislature intended that a parental couple should consist, as a matter of principle, of two persons of opposite sex. Subsequently, the Supreme Court upheld the earlier rulings and similarly dismissed the case. The ECtHR considered that the issue before the Court was not the general question of same-sex couples’ access to second-parent adoption, but the difference in treatment between unmarried different-sex couples and same-sex couples in respect of this type of adoption. Finding that—a de facto family life existed between the applicants: it was important to have the possibility of obtaining legal recognition for that status; the government had not adduced any evidence to show that it would be detrimental to the child to be brought up by a same-sex couple or to have two mothers and two fathers for legal purposes; and that the government had admitted that same-sex couples may be as suited for second-parent adoption as different-sex couples—the Court considered that the Austrian prohibition on second-parent adoption in same-sex couples lacked proportionality. It declared90 : 87 Application

No. 43546/02, 22 January 2008.

88 Application No. 19010/07, 19 February 2013. Also, note, S.H. and Others v. Austria, Application

No. 57813/00, 3 November 2011. 89 See, also, Council of Europe, above. 90 The X and Others v. Austria, op cit, at para 95.

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The Court reiterates that the relationship of a cohabiting same-sex couple living in a stable de facto relationship falls within the notion of “family life” just as the relationship of a differentsex couple in the same situation would.91 Furthermore, the Court found in its admissibility decision in Gas and Dubois v. France92 that the relationship between two women who were living together and had entered into a civil partnership, and the child conceived by one of them by means of assisted reproduction but being brought up by both of them, constituted “family life” within the meaning of Article 8 of the Convention.

Adding, for good measure93 that “differences based solely on considerations of sexual orientation are unacceptable under the Convention”.94 It ruled that the distinction was incompatible with the Convention: there had been a violation of Article 14 of the Convention taken in conjunction with Article 8 when the applicants’ situation is compared with that of an unmarried different-sex couple in which one partner wishes to adopt the other partner’s child.95

4.4.7.3

Unmarried Father

The presumption favouring family life has been extended to include the role of an unmarried father96 but this is a presumption that can be rebutted. In Soderback v. Sweden,97 for example, the applicant unmarried father had never cohabited with the mother and had a tenuous relationship with his daughter whom the mother and her spouse were proposing to adopt. The ECtHR ruled that the granting of an adoption order had not breached the father’s Article 8 rights. The ECtHR has also ruled the fact that the law disadvantages an unmarried father, unlike either an unmarried mother or a married father, in relation to parental responsibility will not itself constitute a breach of his rights under Article 8. The difference in treatment for married fathers was justified by the ECtHR in McMichael v. United Kingdom98 on the basis that it was intended to thereby provide a means of identifying “meritorious” fathers. In Elsholz v. Germany99 the ECtHR ruled that there had been an unjustified violation of an unmarried father’s Article 8 rights. This had occurred when a court had 91 Citing

Schalk and Kopf v. Austria (Application No 30141/04, ECtHR 24.06.2010). No. 25951/07, ECtHR 31.08.2010. 93 X and Others v. Austria, op cit, at para 99. 94 Citing E.B. v. France (Application No. 43546/02, ECtHR 22.01.2008) and Salgueiro da Silva Mouta (Application No. 33290/96, ECtHR 1999–IX). 95 Ibid. at para 153. 96 See Johansen v. Norway (1996) 23 EHRR 33 and Rieme v. Sweden (1993) 16 EHRR 155. Note that in B. v. United Kingdom [2000] 1 FLR 1 the court found against an unmarried father without parental responsibility and held that the U.K. court had been justifiably discriminatory between his standing and that of a married father as he had no custody rights in respect of the child. 97 [1999] 1 FLR 250. 98 (1995) Fam Law 478. See also B v. United Kingdom [2000] 1 FLR 1. 99 [2000] 2 FLR 486. But see also Sahin v. Germany; Sommerfeld v. Germany; Hoffman v. Germany, [2002] 1 FLR 119. 92 Application

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refused to grant him contact, without requesting a report from an expert witness, because of the strength of joint objections from mother and child. He was entitled to greater involvement and to have had his interests presented more fully before the court. This was not dissimilar to the earlier case of Keegan v. Ireland 100 when the court had held that placing a child for adoption without first informing or seeking the consent of the birth father was an infringement of both his right to respect for his family life under Article 8 and his right to a fair trial under Article 6 of the Convention. More recently, in Zaunegger v. Germany101 and Sporer v. Austria,102 the ECtHR found a violation of Article 14 taken in conjunction with Article 8 when the father of a child born outside marriage was unable to obtain a judicial ruling by the domestic courts on whether the award of joint custody to both parents or sole custody to him was in the child’s interests. The latter factor was also decisive in Anayo v. Germany103 when the court found that the reasons for denying the unmarried father contact were insufficient and that inadequate consideration had been given to the fundamental issue of whether contact would have been in his children’s best interests. Similarly in Bondavalli v. Italy104 which concerned a father, separated from his partner, who for seven years was allowed only supervised contact with his son on account of negative reports by the Scandiano social services for which there was no substantiating evidence and with which the mother had professional links. The Court found that the national authorities had not made appropriate and sufficient efforts to ensure that Mr Bondavalli had been able to exercise his right of contact with his child and had thus breached his right to respect for his family life.

4.4.7.4

Privacy of Family Life

Article 8(2) declares that a public authority shall not interfere with the right to respect for family life, the existence or otherwise of which can be determined as a matter of fact. As observed in Kutzner v. Germany,105 under the terms stated in Article 8(2), a state can only legitimately interfere with this right if it satisfies three requirements: that it be in accordance with the law; that it be for a legitimate aim (in this case of the protection of the welfare and interests of the children), and that “it is necessary in a democratic society”. Should state interference result in a care order then, as the 100 Keegan v. Ireland: Application No. 16969/90 (1994) Series A No. 290, 18 EHRR 342, at para. 44. 101 Application No. 22028/04, §§ 61–63, 3 December 2009. 102 Application No. 35637/03 §§ 88–90, 3 February 2011. 103 [2011]. 104 Application No. 35532/12 (2015). 105 [2003] 1 FCR 249. The court then emphasised that any interference with this right will entail a violation of Article 8 unless the three requirements are satisfied. The element of “necessity” implies that the interference must correspond to a pressing social need and in particular be proportionate to the legitimate aim being pursued. An applicant state authority, in such circumstances, must inquire as to what additional measures of support could be given as an alternative to the extreme measure of separating a child from his or her parents.

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ECtHR has been at pains to stress “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”.106 The presumption underpinning this Article is that the entitlement of parent and child to the mutual enjoyment of each other’s company constitutes a fundamental element of family life and should be protected against arbitrary action by public authorities. This approach has been upheld by the court in cases such as K A v. Finland 107 and Kutzner v. Germany108 in both of which it was made clear that the essential object of Article 8 of the Convention is to protect the right to respect for family life and that any interference with this right violates Article 8 unless the above three requirements can be satisfied. The court must first look at what additional measures of support can be put into place or what alternatives might exist that would obviate the need to make such an extreme intervention as an adoption order. The ECtHR returned to this theme in Haase v. Germany109 when it emphasized that: … there must exist other circumstances pointing to the ‘necessity’ for such an interference with the parents’ right under Art 8 to enjoy a family life with their child…before public authorities have recourse to … care orders, the imminent danger should be actually established.

Draconian intervention, such as the removal of a new-born baby from maternal care in a hospital (an act which is often a precursor to an adoption placement), has been held to be a disproportionate response to the level of risk presented by the mother and breached the latter’s rights under Article 8. The ECtHR has explored this practice in a number of cases; mostly involving the UK.110 The recent case of Melo Soares v. Portugal,111 demonstrated both that the practice is not confined to the UK and that the ECtHR will expect to find evidence of the state having invested resources to support a family before resorting to such extreme measures, the necessity for which will be open to challenge where there is no evidence of parental abuse and ample evidence of emotional bonds between parent and child and between the children. As the ECtHR explained in K and T v. Finland 112 : …when such a drastic measure for the mother, depriving her absolutely of her new-born child immediately on birth, was contemplated, it was incumbent on the competent national authorities to examine whether some less intrusive interference into family life, at such a critical point in the lives of the parents and child, was not possible.

106 See, Olsson v. Sweden (no. 1), 24 March 1988, Series A no. 130, Johansen v. Norway, 7 August 1996, Reports 1996-III, and E.P. v. Italy, Application No. 31127/96,16 November 1999. 107 (2003) 1 FCR 201. 108 (2003) 1 FCR 249. 109 [2004] 2 FLR 39, at para 95. 110 See, for example: O v. the United Kingdom, no 9276/81, 8 July 1987; H v. the United Kingdom, 9580/81, 8 July 1987; W v. the United Kingdom, 9749/82, 8 July 1987; and B v. the United Kingdom, 9840/82, 8 July 1987. 111 Application No. 72850/14 (2017). 112 (2003) 36 EHRR 255 at para 168.

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This message was subsequently emphasised in Zhou v. Italy,113 which again demonstrated that any progression from intervention in respect of a vulnerable parent/child relationship to a non-consensual adoption placement will only be human rights compliant if the intervening authorities have first offered appropriate supportive services and, when this has clearly failed, have then proceeded in a manner that gives the parent every opportunity to engage in decision-making and legally challenge the authorities course of action. That case concerned a Chinese national, who in 2004 was placed in a welfare housing facility with her son, then aged one month. In agreement with the social services, her son was placed with a foster family during the day. Three months later, however, this family was no longer prepared to accept the child. The applicant decided to entrust the child to a neighbouring couple while she went to work. The social services, which did not accept her choice of caregiver, informed the public prosecutor at the children’s court about the applicant’s situation. At the end of 2007 the prosecutor asked the court to open adoption proceedings in respect of the child, as the mother was not in a position to look after him. The applicant complained in particular that her child had been placed in a foster family with a view to adoption. The ECtHR held that there had been a violation of Article 8 of the European Convention on Human Rights as the Italian authorities had not fulfilled their obligations before envisaging the severing of family ties, and had not made appropriate or sufficient efforts to ensure respect for the applicant’s right to live with her child. In particular, the paramount need to preserve, in so far as possible, the family ties between the applicant, who was in a vulnerable situation, and her son, had not been duly considered. The difficulties could have been overcome through targeted support from the social welfare services. Furthermore, the Italian Government had provided no convincing explanation to justify the severing of the maternal affiliation between the applicant and her son. In Ageyevy v. Russia,114 the ECtHR ruled that the Russian authorities had committed a series of violations of Article 8 when they annulled the adoption of two children by the Avgeyevs. This case concerned Anton and Larisa Ageyev, husband and wife, who in April 2008 adopted two children whose biological parents had been deprived of their parental rights in 2006 and 2007 for failing to fulfill their parental responsibilities. In March 2009, following an injury to one of the children, both were removed and placed in a hospital “for social reasons” while criminal proceedings were instigated against the couple for causing the injury. In June, amid much media generated misinformation, the District Court in Moscow annulled the adoption of both children on the grounds of an alleged failure to properly look after their health. In January 2010 the claimants appealed to the ECtHR and six months later the Ageyev couple were permitted to visit the children, who by then were placed in a children’s home. In ruling the annulment of the adoption unjustified, the ECtHR established that the violations of Article 8 included: actions by the Russian authorities which led to the spreading of information in the media about the private life of the claimants; the disclosure of the secrets of the adoption and the inability to carry out an effective 113 Application 114 Application

No. 33773/11, 2014. Also, see, Akinnibosun v. Italy [2015] ECHR 697. No. 7075/10, 18 April 2013.

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investigation of this; the unhindered access of journalists to the claimant’s son while he was in hospital; and the fact that the claimants did not have the right to see their children until June 2010. The ECtHR has stressed the importance of remembering that the principle of the best interests of a child is not opposed to the fundamental right of parents to live a family life with their children. That an approach which marries both components should govern state intervention in such cases is well established, as Judge Sajo P pointed out in the above-mentioned case of Melo Soares v. Portugal115 : According to the principles established by case law of the Court, where the existence of a family tie with a child has been established, the state must act to enable that tie to develop and provide legal protection making possible the integration of the child in his family.116

This case concerned a family with (eventually) ten children who were first involved with Portuguese social services in 2005 due to reports of the children being neglected as a consequence of the parents’ poverty and the father’s absence from the home. Alarmingly, the mother was expected to undergo sterilisation by tubal ligation as part of a package of measures set out by social workers to improve the family’s position. By 2012 nothing much had improved and the Portuguese state took measures to have the youngest 8 children adopted. In subsequent court proceedings the mother argued that: the only reason to justify the adoption was the family’s poverty; there was no evidence that either parent had abused the children; there were strong emotional ties between all family members; the family had not received adequate state help and support; and it was unacceptable to expect the mother to agree to be sterilised. The ECtHR agreed. It emphasised the principle that a child can only be removed from his family if this is ‘necessary’, otherwise the State is under a positive obligation to keep a family together. The observations of Judge Sajo, President, are clearly important117 : The best interests of the child come into play when the obligations inherent in parental rights are not observed by the parent, or that parent uses its rights abusively. The requirements of the Convention are not fulfilled if one ignores the importance of the need for parents and their children to “be together”118 … The history of child maltreatment and discrimination is a story of public and private services provided by “saviours”. To prevent this history from repeating itself, it is of utmost importance that the child welfare services fully respect the human rights of all, including parents, even when caring people are convinced that they only serve the best interests of children.

Employment and Parental Leave The ruling in Topˇci´c-Rosenberg v. Croatia119 illustrates the political importance of ensuring that a state system of benefits and services provision does not inadvertently 115 Application

No. 72850/14 (2017). Kroon and others v. the Netherlands, Application No.18535/91 (1995) 19 EHRR 263, [1994] ECHR 35, and Wagner and JMWL v. Luxembourg, Application No. 76240/01 (2007). 117 Melo Soares v. Portugal, Application No. 72850/14 (2017), at concluding paras. 118 Citing Gnahoré v. France, Application No. 40031/98 (2001). 119 [2013] ECHR 1131. 116 Citing

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disadvantage adopters. In this case the ECtHR ruled that Croatia’s maternity and adoption leave laws discriminated against an adoptive mother contrary to Article 14 read in conjunction with the right to family life in Article 8.120 Ms Topˇci´c-Rosenberg, a self-employed woman, had sought maternity leave and maternity allowance when she adopted a child aged three. The national courts interpreted the law in relation to self-employed individuals as meaning that maternity leave for adoptive parents could only be taken up to the child’s first birthday and so refused both leave and allowance. The Court made two findings to which it attached particular importance: (a)

(b)

In the case of an adoptive mother, the purpose of parental or maternity leave is to enable her to stay at home to look after her child, and in this respect she is in a similar position to a biological parent; and The State should refrain from taking any actions which could prevent the development of ties between the adoptive parents and their child, and the child’s integration into the family.

The Court could see no objective and reasonable justification for the difference in treatment of the applicant as an adoptive mother, in granting her the right to maternity leave after the adoption of her child and the right of a biological mother, who had such a right from the time of the birth. Her complaint that as a mother and selfemployed businesswoman she had been discriminated against in respect of her right to maternity leave, contrary to Article 14, read in conjunction with Article 8 of the ECHR, was upheld. Family Reunification Articles 7, 8 and 9 of the Convention on the Rights of the Child declare that children have, as far as possible, the right to know and be cared for by their parents, the right to preserve their identity, including family relations and the right not to be separated from their parents against their will unless to do so is in their best interests. An admission to the public child care system, therefore, should be time limited and conclude with a return to parental care as soon as the problems that gave rise to the admission have been resolved: there is an onus, assumed or statutory, on the public authorities to be pro-active in working towards a speedy family reunification; an onus which necessitates nurturing the parent/child relationship, while the latter remains in care, in preparation for their return home. The role of the authorities at this stage is critical for the human rights of child and the birth parent/s and the support provided can determine whether or not a child is placed for adoption.121 The Special Rapporteur has warned against the practice, at this stage, of “child protection services using the placement of children in alternative care, which may involve adoption, as an option of first resort, rather than providing the required support to families”.122 120 The

ECtHR had earlier ruled that a relationship arising from lawful adoption may be deemed sufficient to engage Article 8 and that parental leave and related allowances promote family life and therefore come within the scope of Article 8: see, Markin v. Russia [2010] ECHR 1435. 121 See, UN General Assembly, Guidelines for the Alternative Care of Children (24th February 2010), A/RES/64/142, at paras 155–156. 122 Special Rapporteur report, A/HRC/34/55, op cit at para 42.

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In Johansen v. Norway123 the ECtHR considered the decision of a Norwegian court which had directed that a child be taken into care, placed in a foster placement with a view to adoption and refused contact between the child and her applicant mother. The ECtHR viewed these measures as “particularly far reaching in that they totally deprived the applicant of her family life with the child and were inconsistent with the aim of reuniting them”. It stressed the importance to be attached to the continuing interest of birth parents in the future upbringing of their child. As has been said124 : The leading case of Johansen v. Norway makes clear that deprivation of parental rights and access should only occur in exceptional circumstances. It would be justified if motivated by an overriding requirement pertaining to the child’s best interests… The opposite of a trivial test.

This approach was re-affirmed by the ECtHR in the above mentioned K and T v. Finland 125 when it drew attention to: . . . the guiding principle whereby a care order should in principle be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child.

Again, in R v. Finland,126 the court was concerned that the evidence showed a lack of will on the part of State authorities to facilitate family reunification where a child had been placed in a children’s home as a consequence of parental incapacity and maternal violence. For three years the father had maintained regular contact and had repeatedly but unsuccessfully sought either the child’s return or increased access. Instead access was reduced and the child was moved to a substitute family. The ECtHR found that no serious and sustained effort had been made by the social welfare authority to further reunification.127 In ruling that there had been a breach of Article 8, the court stated: …a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development.

123 (1996)

23 EHRR 33. Houses of Parliament, England: Hansard, Lords, 16.10.02, col 929. 125 [2000] 2 FLR 79 at para 178. 126 Application No. 3414/96, May 30, 2006. See, also, HK v Finland, Application No 36065/97, 2006. 127 See also, Neulinger and Shuruk v Switzerland [GC], no. 41615/07, § 134 (6 July 2010). 124 See,

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The court returned to this theme in YC v. United Kingdom128 when it warned that129 : … family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ’rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.

The caveat being, as noted in Pini and Others v. Romania,130 that: Article 8 dos not require that domestic authorities make endless attempts at family reunification; it only requires that they take all the necessary steps that can be reasonably demanded to facilitate the reunion of the child and his or her parents.

Again, in R v. Finland,131 the court was concerned that the evidence showed a lack of will on the part of state authorities to facilitate family reunification where a child had been placed in a children’s home as a consequence of parental incapacity and maternal violence. For three years the father had maintained regular contact and had repeatedly and unsuccessfully sought either the child’s return or increased access. Instead access was reduced and the child was moved to a substitute family. The ECtHR found that no serious and sustained effort had been made by the social welfare authority to facilitate family reunification and held that there had been a breach of Article 8. In Neulinger and Shuruk v. Switzerland 132 it re-emphasised that: … ties with the family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that eveything must be done to preserve personal relations and, if and when appropriate, to rebuild the family.

The court returned to this theme in YC v. United Kingdom133 when it warned that134 : … family ties may only be severed in very exceptional circumstances and … everything must be done to preserve personal relations and, where appropriate, to ’rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.

Involvement in Decision-Making This principle reflects the emphasis now placed on procedural rights, which have developed to become a crucial aspect of Strasbourg jurisprudence, especially under article 8. 128 (2012)

55 EHRR 967. at para 134. 130 [2004] EHRR 275. 131 Application No. 3414/96, May 30, 2006. See, also, HK v. Finland (Application No 36065/97), 26 September 2006, which concerned a father separated for four years from his child and denied access, which he was given no opportunity to contest, following unfounded accusations of sexual abuse. 132 See, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134 (6 July 2010). 133 (2012) 55 EHRR 967. 134 Ibid. at para 134. 129 Ibid.

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In Buchberger v. Austria135 the ECtHR found that Article 8 rights had been breached by the failure of a local authority to sufficiently involve the claimant in its decision-making process (see, also, Article 6 above). The case concerned a mother whose children had been taken into care because she had arrived home 45 min late from work having left them unsupervised. When she sought through court proceedings to retrieve her children, the local authority failed to provide a statement of reasons for their action and failed to give her copies of documents upon which it relied but which had not been communicated to her. A capacity to participate effectively in decision-making is also dependent upon access to all relevant information. The ECtHR has made a number of rulings in which it has emphasised the importance of ensuring that defendants are not disadvantaged by a non-disclosure of documents that may have a material bearing on the outcome of their case. In TP and KM v. United Kingdom,136 for example, the court ruled that the non-disclosure by a psychiatrist to the defendant of a tape recording adverse to the latter’s interests was wrong. A parent must be placed in a position where he or she may obtain access to information relied upon by authorities in care proceedings. Provision of information is not itself sufficient if the recipient lacks the capacity to give an informed consent. In V.S. v. Germany,137 however, which concerned a minor who had consented to the adoption of her child, it found that the German authorities had not overstepped their margin of appreciation in finding that under German law a valid consent had been given. Again, in Kearns v. France138 the court considered and rejected the applicant’s claim that her Article 8 rights had been breached by the process and circumstances in which her consent had been obtained for the adoption of her newly born child. She submitted that the two-month period permitted for retraction of consent in the ‘accouchement sous X’ process was too short and this, together with the disadvantage she suffered by having no fluency in the French language, in effect invalidated her consent. The court found that Ms Kearns, an Irish citizen, married and resident in Dublin, had travelled to France with her mother, availed of several lengthy interviews and the services of a lawyer and had received information which had been explained to her in English, before signing contractual forms. Not only could she not have misunderstood the timescales and the significance of the ‘accouchement sous X’ process, she had deliberately sought to take advantage of it in order to escape the compromising family position she found herself in following an extra-marital affair (see, also, Sect. 13.5.2.1). However, the ECtHR has also acknowledged that there may be circumstances when there is no right to obtain information held by such authorities. In Odièvre 135 Application No. 32899/96, December 20, 2001. See, also, Re B (A Child: Non-accidental Injury)

unreported, Court of Appeal, April 24, 2002, where it was held that the judge at first instance had erred in refusing to order disclosure of documents to a sibling of B, the subject of proceedings. The disclosure, if made, would have had a direct bearing on the outcome of the proceedings. 136 [2001] 2 FLR 549. Also, see, Re M (Care: challenging decision by local authority) [2002] FLR 1300. 137 Application No. 4261/02, ECHR, 22.05.07. 138 Application No. 35991/04, ECHR, 10.01.08.

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v. France139 an adopted person had sought the release of information identifying her birth mother. As the latter had expressly reserved her right to confidentiality, the Parisian Child Welfare Authorities refused her request. The ECtHR held that the decision was not in breach of either Article 8 or Article 14 on the grounds that France had a pressing reason to respect the privacy of the mother, namely that mothers might abandon or abort their children if confidentiality on adoption could not be guaranteed (see, also, Chap. 13). Unquestionably, there are difficulties in reconciling this decision with the approach of the court in cases such as Mikulic v. Croatia140 (see, above). Paramountcy of Child’s Interests Article 8(2) has been interpreted by the Court as providing that the parental right of access exists independently of considerations of the child’s welfare (in R v. United Kingdom141 ) and where there is a conflict between the rights and interests of the child and those of a parent which can only be resolved to the disadvantage of one of them (as in Hendricks v. The Netherlands142 ), the interests of the child must prevail. While Article 21 of UN CRC establishes that the best interests of the child are to be the paramount consideration in all matters related to adoption.143 The ECtHR, in Sahin v. Germany, Sommerfield v. Germany, Hoffmann v. Germany144 stressed the crucial importance of the best interests of the child as such. In K and T v. Finland 145 the approach of the Court was clearly stated: …a fair balance has to be struck between the interests of the child in remaining in public care and those of the parent in being reunited with the child. In carrying out this balancing exercise, the Court will attach particular importance to the best interests of the child, which may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development.

Again, in Yousef v. The Netherlands,146 the ECtHR for the first time used the phrase “paramountcy of welfare” when comparing the interests of a child with those of the parent147 : 139 ECHR,

13.02.2003. v. Croatia, Application No 53176/99, ECHR, 07.02.02. 141 [1988] 2 FLR 445. 142 (1982) 5 EHRR 223. See also Kroon v. The Netherlands (1994) Series A No.297–C, 19 EHRR 263 where the court commented that it was a principle of good law to hold that the interests of the child were paramount. 143 Also established by Article 24 of the African Charter on the Rights and Welfare of the Child and Article 4 of the European Convention on the Adoption of Children (Revised). 144 [2002] 1 FLR 119; at time of publication the subject of appeal to the Grand Chamber. See, also, Scott v. UK [2000] 1 FLR 958 where the ECtHR upheld the decision of the court at first instance to dispense with the consent of an alcoholic mother and free her child for adoption because there was no evidence that she would ever be alcohol free and “what is in the best interests of the child is always of crucial importance”. 145 [2000] 2 FLR 79. 146 [2003] 1 FLR 210. 147 Ibid. at para 73. Also, see: R and H v. United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236. 140 Mikulic

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The Court reiterates that in judicial decisions where the rights under Article 8 of parents and those of a child are at stake, the child’s rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must prevail.

In Pini and Others v. Romania,148 the ECtHR had an opportunity to consider a child’s rights to consent/object to their adoption. This case concerned two Romanian children, Florentina and Mariana, who had been judicially declared to have been abandoned at the age of three and seven and were nine years old in the care of the Poiana Soarelui Educational Centre in Bra¸sov (the CEPSB) when they were made the subjects of adoption orders issued in favour of two Italian couples. The CEPSB, a private institution approved by the Bra¸sov Child Protection Department, provided a home for orphaned and abandoned children and gave them an education. The adopters had sought to enforce the adoption orders, but the CEPSB refused to deliver up the children’s birth certificates or to transfer custody of the children to them. In 2002 Florentina and Mariana issued proceedings to have the adoption orders revoked on the ground that they did not know their adoptive parents and did not wish to leave Romania and the CEPSB. The action brought by Florentina was dismissed, inter alia, on the ground that it was not in her interests for the adoption order to be revoked. However, the Bra¸sov District Court granted Mariana’s application and revoked the adoption order after noting that she was receiving a sound education and living in good conditions at the CEPSB and had not formed any emotional ties with her adoptive parents. The adopters complained to the ECtHR that the Romanian authorities’ failure to enforce final judicial decisions was in breach of Article 8 as this had deprived them of all contact with their adopted children. The court noted that there was a conflict of interest between those concerned. Florentina and Mariana now preferred to remain in the socio-family environment in which they had been raised at the CEPSB, where they considered themselves to be fully integrated and which was able to afford them physical, emotional, educational and social development rather than the prospect of being transferred to a different environment abroad. The applicants’ interest lay in their desire to create a new family relationship by creating a relationship with their adopted daughters. The court took the view that in adoption cases, it was even more important to give the child’s interests precedence over those of parents, as adoption meant “giving a family to a child and not the child to a family”. The applicants’ weaker interest could not justify imposing on the Romanian authorities an absolute obligation to ensure that the children went to Italy against their will and to ignore the fact that challenges to the adoption orders were pending. The court noted that: “it was the expressed desire of the girls to remain where they were, and that ‘their interests lay in not having imposed upon them against their will new emotional relations with people with whom they had

148 [2004]

EHRR 275. The above account is taken from the press release issued by the Registrar of the European Court of Human Rights on 22.6.2004 and available at https://www.echr.coe.int/Eng/ Press/2004/June/ChamberjudgmentPini&Bertini220604.htm.

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no biological ties and whom they perceived as strangers.’”149 The children’s interest meant that their opinions had to be taken into account once they had the necessary maturity to express them, which Romanian law deemed them to possess at the age of 10. In that respect, the refusal they had consistently manifested since that age carried a certain weight. The conscious opposition of the children to the adoption would make their harmonious integration in their new adoptive family unlikely. Consequently, the Court found that the Romanian authorities could legitimately and reasonably have considered that the applicants’ right to create ties with the adopted children could not take priority over the children’s interest, notwithstanding the applicants’ legitimate aspirations to found a family. Moreover, the fact that adoption severs parental ties can be construed as compatible with Article 8.150 In Neulinger and Shuruk v. Switzerland,151 it emphasised that there are two considerations that must be balanced when determining the child’s welfare interests: first, the maintenance of family ties, except in cases where the family has proved particularly unfit; and second, the development of the child in a safe and secure environment. In other words, the benefits the child gains from maintaining a connection with his or her biological family must be balanced against the need to be provided with a secure and permanent home and family life; even if that family is adoptive rather than biological. Treating a child’s welfare interests as paramount, as required under Article 21 of UN CRC, does not mean ignoring the Article 8 rights of their parents; these too must be taken into account and full consideration given to the principle that in general a child’s welfare is best assured by parental care. There is considerable scope, here, for potential conflict between domestic law and Strasbourg law. Arguably, practice developments in some nations are pushing at the boundaries established by ECtHR case law and at the requirements of Articles 3 and 21 of the Convention on the Rights of the Child. Access to Origins Information Godelli v. Italy152 concerned an applicant who was adopted after being abandoned at birth and, on becoming an adult, unsuccessfully sought information about her birth mother from the Italian authorities. However, Italian law allowed the biological mother to give birth anonymously without recording her name on the child’s birth certificate. The ECtHR found that the Italian authorities had failed to balance and achieve proportionality between the interests of the child and birth mother and held that this constituted a violation of Article 8. The court took the view that the right to an identity includes the right to know one’s parentage and is an integral part of private life which is protected by Article 8. It considered that in cases of competing interests, the State must strike a fair balance between the rights of the two parties but 149 See, further, at: https://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{“display”: [“1”],“dmdocnumber”:[“801296”]}. 150 See, Emonet and Others v. Switzerland (no. 39051/03,13 December 2007), and Eski v. Austria (no. 21949/03, 25 January 2007). 151 [2010] ECHR 1053. 152 Application No. 33783/09 (2013).

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where, as in this case, the applicant was faced with a state enforced automatic veto then there was clearly no attempt to balance the woman’s right to anonymity and the child’s right to private life. The applicant relied upon the protections provided under UN CRC, Article 7, that a child had from birth “as far as possible, the right to know his or her parents” and under the Hague Convention that the authorities of a Contracting State—such as Italy—must ensure that information held by them concerning a child’s origins, in particular information concerning the identity of his or her parents, as well as the child’s medical history, would be preserved; Article 30 required such authorities to ensure that the child or his or her representative had access to such information, under appropriate guidance, in so far as was permitted by the law of that State (see, also, Sect. 23.6.1.2). Proportionality Article 8 requires that any intervention of the state between parents and child should be proportionate to the legitimate aim for the protection of family life.153 This ‘principle of proportionality’154 has emerged as key benchmark, attracting repeated judicial affirmation of its importance in the context of child care cases, and is one which may finally see an end to the effects of the peremptory “child rescue” approach that characterised much social work intervention in families in the last decades of the twentieth century in some countries. This was most graphically illustrated in the many cases where newly born babies were removed from the care of their hospitalised mothers. For example, in P, C and S v. UK 155 the newborn child of a woman suffering from Munchausen’s Syndrome by Proxy was removed from her care in hospital under an emergency protection order which was followed promptly by the instigation of care and freeing proceedings. The ECtHR ruled that156 : …the taking of a new-born baby into public care at the moment of its birth is an extremely harsh measure. There must be extraordinarily compelling reasons before a baby can be physically removed from its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner has been involved.

Draconian intervention of this nature was held to be a disproportionate response to the level of risk presented by the mother and breached the latter’s rights under Article 8. Again, in KA v. Finland 157 the Court stressed that, to be compliant with Article 8(2), the making of a public care order must involve a careful and unprejudiced assessment of all relevant evidence held on file and be justified by a recorded statement of specified reasons. The latter should be made available to the parent or guardian 153 See,

e.g. Re O (A Child) (Supervision Order) [2001] 1 FLR 923. Johansen v. Norway (1996) 23 EHRR 33; K and T v. Finland (2001) 36 EHRR 18; R and H v. United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236; YC v. United Kingdom (2012) 55 EHRR 33. 155 Op cit. See, also, the similar case of Venema v. The Netherlands Application No 35137/1977, ECtHR, 17.12.2002. 156 Ibid. at para 116. 157 [2003] 1 FCR 201. 154 See:

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so as to ensure that they are in a position to participate in any further decisionmaking including lodging an appeal. Convention case law clearly indicates that state authorities will have to exercise great care in determining the degree of authority needed to justify any future such intervention. Duty to Be Proactive in Protecting Children Article 8, together with Article 6, must be construed as imposing on a court not only a duty of watchful vigilance, to ensure that the rights enumerated are properly taken into account when determining family proceedings, but also an obligation to be satisfied that any orders then made are given effect in a manner which continues to satisfy those rights.158 It has been argued159 that this combination of Articles places a positive obligation on the state (either court or local authority), once it is made aware of abuse to a child, to intervene on that child’s behalf and secure his or her safety. In effect it has no discretion once it is put on notice of abuse. This interpretation provides a rationale for following through with proactive steps to expedite permanency placements for the children concerned.

4.4.7.5

Surrogacy and Child’s Welfare Interests

The ECtHR has found that access to medically assisted procreation techniques, whether legal160 or illegal,161 falls under the scope of Article 8 of the European Convention on Human Rights, as “an expression of private and family life”.162 However, some countries—such as France and Italy—prohibit surrogacy: their laws are entitled to respect; domestic and international courts cannot be complicit in condoning behaviour which breaches the law and thereby threatens social order. Moreover, the ECtHR has recognised the risk that surrogacy may be linked to child trafficking163 and has, accordingly, defended the right of states to legislate for the prohibition of practices—such as surrogacy—which “are directly linked to the legitimate aim of preventing disorder, and also that of protecting children—not merely the child in the present case but also children more generally—having regard to the prerogative of the State to establish descent through adoption and through the prohibition of certain techniques of medically assisted reproduction”.164

158 See

Re W and B; Re W (Care Plan) [2001] EWCA Civ 757, as reported in 31 Family Law 581. Fortin, J., ‘Children’s Rights and the Impact of Two International Conventions: the UNCR and the ECtHR’ in Delight and Dole: the Children Act 10 Years On (eds. Thorpe, L.J. and Cowton, C., Family Law, Bristol, 2002). 160 Dikson v. The United-Kingdom,Application No. 4436204 (2007), at para. 66. 161 S.H. v. Austria, Application No. 57813/00 (2011) at para. 82. 162 Ibid. 163 See, D. and Others v. Belgium, Application No. 29176/13 (2014). 164 Paradiso and Campanelli v. Italy, Application No. 25358/12 (2017) at para. 197. 159 See

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Mennesson and Others v. France and Labassee v. France165 concerned the refusal to grant legal recognition in France to parent–child relationships that had been legally established in the United States between children born as a result of surrogacy. In both cases the ECtHR held that while there had been no violation of Article 8 in respect of the applicants right to ‘family life’ that there had been such a violation concerning the children’s right to respect for their ‘private life’. The Court observed that the French authorities, despite being aware that the children had been identified in the United States as the children of Mr. and Mrs. Mennesson and Mr. and Mrs. Labassee, had nevertheless denied them that status under French law. It considered that this contradiction undermined the children’s identity within French society. It further noted that the caselaw completely precluded the establishment of a legal relationship between children born as a result of lawful surrogacy treatment abroad and their biological father which overstepped the wide margin of appreciation left to States regarding decisions relating to surrogacy. In the above mentioned Paradiso and Campanelli v. Italy166 the Court considered the case of an Italian couple who, having made surrogacy arrangements with a Russian clinic and paid 50,000 euros, took delivery of a baby and were issued with a birth certificate which indicated that they were the parents. On their return with the child to Italy they sought to have the child registered as theirs at which point DNA testing ordered by the Court showed that the applicant was not the biological father of the child. The authorities determined that, as the applicants had violated both domestic surrogacy law and international adoption law, the child would be removed and taken into state care. As the birth parents were unknown, the child was considered ‘abandoned’ for all legal purposes and had been placed in a foster home before being placed in a family with a view to adoption. In 2015, at an initial hearing the Chamber found that a de facto family life had existed, taking into account that the applicants had lived in Italy with the child for six months and had “acted as parents” towards the child. It held that the applicants Article 8 right to private and family life had been violated by the irreversible removal of the child. At a second hearing the Grand Chamber, as explained above, reversed those earlier findings. It found that the applicants wish to become parents had been operationalized with such disregard for the law that their “parental project” had been vitiated: they deliberately acted with premeditation in order to circumvent domestic and international legislations as regards medically assisted reproduction techniques and adoption. In so doing they left the Italian authorities with the “difficult choice between allowing the applicants to continue their relationship with the child, thereby legalising the unlawful situation created by them as a fait accompli, or taking measures with a view to providing the child with a family in accordance with the legislation on adoption”.167 The recklessness of their methods was such that the end result could not have provided the secure 165 Application Nos. 65192/11 and 65941/11 (2014). Also, see: Foulon and Bouvet v. France, Application Nos. 9063/14 and 10410/14 (2016); Laborie v. France, Application No. 44024/13 (2017); and D. and Others v. Belgium, Application No. 29176/13 (2014). 166 Ibid. 167 Ibid., at para. 209.

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framework necessary to satisfy the legal definition of “family life”. A noteworthy factor in this judgment is that the prompt intervention of the State authorities in removing the child was credited as having pre-empted the development of a bonding relationship which could have been determinative in entitling the applicants to Article 8 protection for their “family life”. This finding has clear implications for practices such as the premptory removal of babies from maternal care in hospitals and for short-term foster care placements.

4.4.7.6

Article 12—The Right to Marry and Found a Family

Article 12 provides that men and women of a marriageable age have the right to marry and to found a family, according to national law. The right to found a family is absolute and the state cannot interfere with the exercise of this right, though equally it has no legal obligation to provide the services that may be necessary for the right to be exercised. Specifically, the fact that there is no legal right to found a family by recourse to adoption or by accessing artificial reproduction treatment was emphasised in X v. Belgium and The Netherlands168 where it was held that unmarried persons cannot claim a right to adopt. The absence of such a right was also considered in Pini and Others v. Romania169 (see above and also at Sect. 5.7.4.2).

4.4.7.7

Article 14—Prohibition of Discrimination

Article 14 provides that the rights enumerated in the Convention shall be assured without discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth170 or other status. This Article deals only with discriminatory treatment based upon the personal characteristics that distinguish people. As has been pointed out171 : In order to establish a claim under Article 14 an individual must show that he has been discriminated against on the basis of ‘a personal characteristic (“status”) by which persons or groups of persons are distinguishable from each other’.172

It must be shown that an applicant is: subject to a difference in treatment from others in a similar situation; in the enjoyment of one of the rights protected by the Convention; which difference cannot be objectively and reasonably justified, having regard to the concepts of legitimate aim, proportionality and margin of appreciation. 168 Application

No. 6482/147 (1975) 7 DR 75. EHRR 275. 170 A marital child cannot be accorded prior legal rights over a non-marital child: Inze v. Austria (1988) Series A No. 126, 10 EHRR 394. See also Marckx v. Belgium (1979) Series A No. 31, 2 EHRR 330. 171 Southwark LBC v. St Brice [2002] EWCA Civ 1138, [2002] 1 WLR 1537 per Kennedy L.J. 172 Ibid., citing Kjeldsen, Busk Madsen and Pedersen v. Denmark (1976) 1 EHRR 711 at para 56. 169 [2004]

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There is no definitive list of matters constituting discriminatory treatment. Article 14 has no independent validity but operates to complement other substantive rights enumerated in the Convention. In Topˇci´c-Rosenberg v. Croatia,173 above, the ECtHR found a state welfare benefit system to be discriminatory, in that it operated to the disadvantage of adopters of older children. In Frette v. France174 the court found that there had not been a breach of Article 14. The case concerned a homosexual man who had been discouraged from proceeding with an adoption application once he had disclosed his sexual orientation. The ECtHR found that a state was entitled to draw distinctions between homosexuals and others in the adoption process and held that a ban on adoption by lesbian or gay individuals did not violate Article 14. Most recently, in A.H. and Others v. Russia,175 the ECtHR ruled that Russia’s ban on the adoption of children by Americans was discriminatory after investigating the appeals of the 22 American parents who had already started the adoption process in Russia but could not complete because of the ban (see, further, Sect. 20.2.2.1) The ECtHR held that the “Dima Yakovlev law” violated Article 14 taken in conjunction with Article 8 and ordered Russia to pay compensation to the prospective US adopters whose applications had been foreclosed.176

4.4.8 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986 The General Assembly of the United Nations adopted this Declaration in 1986. Article 13 states that the primary aim of adoption should be to provide a permanent family for a child who cannot be cared for by its own parents. Article 17 recognises that intercountry adoption (ICA) is a childcare mechanism of last resort and states that: If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family.

This UN Convention states that the best interests of a child should be paramount including the right to affection, security and continuing care.

173 [2013]

ECHR 1131. No 3651/97. 175 Application Nos. 6033/13, 8927/13, 10549/13 and others (2017). 176 Ibid., at para. 427. 174 Application

4.4 International Treaties, Conventions and Protocols Etc.

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Article 3—Care Outside the Family of Origin

Article 3 provides that ‘the first priority for a child is to be cared for by his or her own parents’ but, failing that ‘…care by relatives of the child’s parents, by another substitute—foster or adoptive—family or, if necessary, by an appropriate institution should be considered’.177

4.4.8.2

Article 8—Right to Name Etc.

Article 8 provides for a child’s right to name, nationality and legal representation. It also requires signatory States to provide for the supervision of placements.

4.4.8.3

Article 24—Intercountry Adoption

Article 24 requires due weight to be given to both the law of the State to which the child is the national and the law of the respective adoptive parents. In that context it requires due regard to be given to ‘the child’s cultural and religious background and interests’.

4.4.9 The European Convention on the Adoption of Children 1967 This Convention—preceded by the Hague Convention on Jurisdiction, etc., Relating to Adoptions 1965 and the European Convention on the Adoption of Children 1967— sought to identify some common principles and standards of practice to serve as international benchmarks for the parties involved in adoption. For example, it established the principle that adoption should be in the interests of the child (Article 8, para 1) and should provide the child with a stable and harmonious home (Article 8, para 2). It gave protection to adopter’s rights by emphasising the need for anonymity (Article 20) and to birth parent’s rights by establishing that any consent given by a mother to the adoption of her child is invalid if given within six weeks of that child’s birth (Article 52, para 3); but she can give a valid consent to placement within that period. Some principles, however, proved contentious. One such was the requirement stated in Article 6(1) that national adoption laws “shall not permit a child to be adopted except by either two persons married to each other, whether they adopt simultaneously or successively, or by one person”.178 177 See,

Article 4. July 2002 Sweden withdrew from the Convention following changes in its national adoption laws allowing for adoption by homosexual couples in a registered partnership, as it determined that this aspect of its new national adoption laws conflicted with Article 6(1).

178 In

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A Working Party on Adoption, composed of experts from member States (the ‘Committee of Experts in Family Law’), was established to revise the 1967 European Convention.

4.4.10 The Universal Declaration of Human Rights 1948 Since its introduction in 1948, the provisions of the Universal Declaration of Human Rights (UDHR) have been incorporated into the legal systems of 165 countries. As with most other fundamental human rights, international recognition of the need to protect children has its roots in the UDHR.

4.4.10.1

Article 2—Rights to Equality and Non-discrimination

Enlarged in Article 14 of the ECHR and supported by Article 2 of the International Covenant on Civil and Political Rights (ICCPR), this provides for the right not to be discriminated against. It requires any difference in treatment to be objectively and reasonably justified.

4.4.10.2

Article 12, 16 and 17—Protection of Individuals and Integrity of Family and Home from Arbitrary Action by Public Authorities

Article 12 provides the right for personal privacy and for protection from arbitrary State intervention in the family home. Article 16 protects the right of men and women of a marriageable age to marry and to found a family, according to national law. This right to found a family is absolute and the State cannot interfere with it, though it has no legal obligation to provide the services that may be necessary for the right to be exercised. The relative legal standing of families formed and dissolved in accordance with Islamic and other cultural customs can be problematic.

4.4.10.3

Article 25(2)—Right to Protection for Mother and Child

This provision states that “motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection”. It is supported by the proclamation regarding the importance of the family, the right of adults to marry and form such a unit and the duty of the State to protect it, as expressed in Article 16.

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4.5 Conclusion International Conventions and related case law are now rapidly promoting a harmonisation of adoption law (its principles, policy and practice) across many countries. This provides a framework of established standards within which more refined benchmarks for good practice are gradually emerging. It is a development which facilitates the analysis of national adoption processes, and comparative assessment of national differences in law and practice, addressed in the following chapters.

Chapter 5

Intercountry Adoption and the Hague Convention

5.1 Introduction Intercountry adoption (ICA), sometimes perceived as a rapidly growing modern social phenomenon, is in fact long established. It was and continues to be associated with the disruption to normal family life caused by war, civil unrest and natural disaster. The subjects are often orphans or refugees fleeing danger for sanctuary in any country offering safety and protection. This was the experience of children in the Balkans following the violent breakup of Yugoslavia and is presently the case in Somalia, Libya, Syria, Ethiopia and other parts of Africa and the Middle East. Increasingly, however, disruption to care arrangements in the family of origin are now more likely to have their roots in chronic poverty, the affliction of AIDS or other forms of socio-economic deprivation. In either case this may not necessarily result in the complete and permanent severance of a child’s links with their culture and kinship networks, as some may well be absorbed into the homes of displaced relatives or friends of their birth parents, but it often does. Whether they are orphan victims of war, disease or natural disasters—or are simply from deprived backgrounds, abandoned in institutional care, with or without parental consent—the children become available for intercountry adoption (ICA) due to a lack of adequate domestic child care and adoption options. Realistically, however, ICA can no longer be seen solely in terms of an altruistic child rescue response to circumstances such as those mentioned above. It is more often a consequence of the demand led pressure to satisfy the parenting needs of infertile couples in modern western societies. Increasingly, it overlaps with surrogacy and can become entangled in child trafficking. Perhaps, it should now be viewed more broadly as just one aspect of the accelerating pace of change that is internationalising the functions of family law: adoption—in common with marriage, divorce, child maintenance and abduction—is now liable to be conducted across the traditional divides of jurisdiction, race and gender.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_5

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ICA must also be viewed as a consequence of a failure in the domestic politics of sending countries. This failure might be seen as being further complicated by the political complicity of western nations choosing to facilitate the removal of children rather than resource the care and protection infrastructure in the child’s country of origin. However, a sense of perspective is needed: ICA remains a relatively small scale phenomenon. As has been pointed out1 : Available data indicates that the majority of adoptions worldwide are domestic. Almost 85 per cent of all adoptions are currently undertaken by parents who are residents and citizens of the same country as their adopted children. Domestic adoptions make up 70 per cent or more of all adoptions in some of the countries that register the largest numbers of adoptions such as China, the Russian Federation, the United Kingdom and the United States.

This chapter begins by defining key aspects of this phenomenon, providing a brief historical background including a consideration of the role of the parties and countries involved and by tracing the gradual development of an international legal response through a sequence of Conventions and other instruments. It examines some broad policy considerations associated with ICA before explaining and outlining the role played by the Hague Convention as the primary international regulatory mechanism. In that context, it notes the key principles as stated in various Conventions, particular attention being given to the United Nations Convention on the Rights of the Child (UN CRC) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). It considers the relevance of the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally and to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. It concludes by considering in turn, the policy and principles, the law and procedures and finally the practice of contemporary intercountry adoption as regulated within the Hague Convention framework.

5.2 Definitions ICA is currently largely defined and regulated by the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 (as amended in 2008).

5.2.1 Full and Simple Adoptions ‘Adoption’ in law may be either ‘full’ or ‘simple’: in the former the legal relationship between the birth parent/s and their child is terminated; in the latter this relationship is 1 See, Menozzi, C. and Mirkin, B., ‘Child Adoption: A Path to Parenthood?’, p. 4, at http://paa2007.

princeton.edu/download.aspx?submissionId=70610.

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not completely severed and the status of the adoptee remains compromised. Countries such as the U.K., the U.S., Australia and the Scandinavian countries only give legal recognition to full adoptions while such others as France, Romania, Japan together with many countries in South America and Africa also recognise the simple form. Article 26 of Hague gives recognition to both and Article 27 empowers a receiving country to convert a simple adoption into a full adoption if the law of that country permits such a conversion and if the appropriate consents are available.

5.2.1.1

Kafala

This alternative to adoption, widely used in Islamic countries or by Muslims living elsewhere, circumvents the Quor’an prohibition2 on legally mixing bloodlines by facilitating the raising of another’s child as the carer’s own while providing safeguards to prevent full legal assimilation into the carers family: the birth parent/s can never be replaced by adopters, the former retain important rights. UN CRC, Article 20(3), expressly refers to adoption and kafala as separate institutions; Hague is therefore inapplicable.3 The gap between statutory adoption and kafala is one which may jeopardise the human rights of those involved: particularly the children, many of whom have been taken into public care due to the concern of authorities about their uncertain legal status and the absence of a parent within the jurisdiction. Not only are some children denied the opportunity of ‘full’ domestic adoption but some 20 Islamic states also wholly prohibit intercountry adoption. On the other hand, “the conversion of a kafala guardianship arrangement into a domestic adoption, once the child has been brought back to the receiving country, has also been used to circumvent intercountry adoption procedures under the 1993 Hague Convention”.4 The Islamic interpretation of ‘adoption’ is a matter of growing relevance to the legal systems of western countries following the 2015–17 migrant crisis (see, also, below at Sect. 5.7.4.2 and Chap. 16).

5.2.2 Intercountry Adoption The Hague Convention on Intercountry Adoption states that such an adoption occurs when: … a child habitually resident in one Contracting State (“the State of origin”) has been, is being, or is to be moved to another Contracting State (“the receiving State”) either after his or her adoption in the State of Origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin. 2 Quor’an,

verse 33 and the Sura, verses 4 and 5. also, the Brussels II Regulation, 2005. 4 Special Rapporteur report, A/HRC/34/55, op cit at para 49. 3 See,

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According to UN CRC, Article 21, ICA may be considered as an alternative means of providing care if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin. It can occur in one of three ways: • adoption of a child from a Hague Convention State in accordance with the national legislation endorsing or incorporating The Hague Convention; • adoption of a child in a country with “compatible” legislation; and • adoption of a child from a non-Hague Convention State using other non-Hague Convention related national legislation and procedures. In the U.K., for example, adoption is defined as including a Convention adoption thereby giving automatic effect to the first while allowing for the possibility of granting recognition to adoptions arising by either of the other two methods.5 The Convention requires ICAs to be managed by an ‘accredited body’ or privately but, in either case, to be subject to oversight by relevant national government departments and the Central Authorities. However, in some countries prospective adoptive parents are free to proceed outside the Hague framework and instead of working with an accredited body agency specializing in intercountry adoption they may choose to arrange an adoptive placement with the assistance of licensed or unlicensed intermediaries many of which are unregulated by any public body and elude sanctions or penalties.

5.2.2.1

Trafficking

The Hague Convention provides, at least in theory, protection against “the abuse, sale of or traffic in children”. One of the many things that makes the Convention relatively toothless is that Russia has not ratified it but even countries that have done so are often also complicit in bilateral agreements that bypass Hague (see, further, below at Sect. 5.7.4.6). The overlap between lawful adoption and unlawful trafficking of children is well documented in countries as diverse as China, Sri Lanka, Guatemala, and Uganda. In recent years there have been a number of cases involving Uganda children fraudulently removed from birth families, placed with US based adoption agencies who then facilitated their adoption by US citizens.6

5 See,

s 66 of the Adoption and Children Act 2002. further, at: https://www.thenation.com/article/archive/those-kids-are-no-longer-yours-uga ndas-adoption-market/.

6 See,

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5.2.3 Overseas Adoption An ‘overseas adoption’ is one that has taken place in another country and falls outside the definition of a Convention adoption. The term refers to the associated legal difficulties in determining whether and to what effect such an adoption may be recognised by the court in the country where the issue of recognition has arisen. Most often it was an issue that occurred when immigrants sought recognition for an adoption order, issued in their country of origin, so that they could satisfy immigration/citizenship requirements in respect of their child. Essentially, ‘overseas adoption’ signifies national rules and procedures for managing a conflict of laws and was of particular importance in the years prior to the unrolling of the Hague Convention on Intercountry Adoption. Nations independently legislated for the recognition of overseas adoption that occurred in a designated list of countries where adoption law and practice conformed to certain standards. In England and Wales there is legislative provision for overseas adoptions to be included within the definition of ‘adoption’ and provision for arrangements to be made for the recognition of overseas adoptions.7 As Bridge and Swindells point out, the criteria for such recognition are likely to include8 : (a) confirming that the law in the overseas country ensures that the child has been freely given up for adoption and that this has not been induced by payment or compensation of any kind; (b) confirming that the overseas country has made attempts to place the child in a family in that country; (c) confirming that intercountry adoption is in the child’s best interests; (d) requiring that the domestic and intercountry adoption arrangements are the same; and (e) ensuring that profit is not made from the process. Currently, in many nations, the challenge in relation to overseas adoption is to ensure that it is used appropriately to supplement the procedures of Hague. Unfortunately, in some countries, the experience is that adopters are using the overseas adoption rules to circumvent Convention constraints by adopting children in countries that have not ratified it. On the other hand, it is also argued that leading adopting nations, such as the U.S., are using the Convention to freeze adoptions altogether from non-compliant countries such as Guatemala.9 Whatever the analytical perspective, the inescapable fact remains that more than two decades after the Hague Convention came into effect (1st May 1995), and despite some 90 states having contracted

7 See,

sections 66 and 87, respectively, of the Adoption and Children Act 2002. Bridge, C. and Swindells, H., Adoption—The Modern Law, Family Law, Bristol, 2003 at p. 314. 9 See, Bartholet, E., 1993. International Adoption: Current status and future prospects. Adoption 3(1-Spring): 90. Also, see, generally Doek, J.H.A. van Loon and P. Vlaardingbroek (eds.). 1996. Children on the move. Netherlands: Martinus Nijhoff Publishers. 8 See,

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to abide by it, the majority of intercountry adoptions still take place outside the framework it provides.

5.2.3.1

Illegal Adoptions

Defined as an adoption resulting from abuses—such as abduction, the sale of, traffic in and other illegal illicit activities against children10 —illegal adoptions have been condemned by the Special Rapporteur because they “violate multiple child rights norms and principles, including the best interests of the child. That principle is breached when the purpose of an adoption is to find a child for adoptive parents rather than a family for the child”.11 The Rapporteur goes on to explain that an overarching enabling factor for illegal adoptions is weak or non-existent child protection systems at the national and local levels. Most commonly an illegal adoption occurs when a baby has been abducted, or when parental consent has been improperly acquired by, for example, payments or other inducements made to the birth mother or to intermediaries. The lack of professional counselling procedures for birth parents is singled out as a deficiency often strongly associated with illegal adoptions and which may be a factor in a domestic or intercountry context. Similarly so associated are private and independent adoptions operating in parallel to state adoptions. Because these offer prospective adopters a speedy and less bureaucratic means of securing a placement they can attract improper payments, generate market conditions, produce illegal adoptions and therefore should be prohibited. In relation to ICA, the Rapporteur notes that a lack of transparency regarding the purpose and use of “adoption-related payments” can blur the line between legitimate and unjustified costs, the latter of which may also create a dependency (e.g. among “orphanages” and intermediaries) that can further fuel illegal adoptions. She warns that12 : The current system not only facilitates and encourages illegal adoptions but also accepts measures that foster them. A major factor enabling illegal adoptions is the level of financial advantage that can be obtained from the procurement of children for intercountry adoption. As long as adoption fees and costs are not reasonable and not made transparent and as long as contributions and donations are involved, there will continue to be a substantial incentive for illegal adoptions to take place.

She rightly deplores the fact that “there are no strategies aimed at tackling the systemic issues that give rise to an enabling environment for illegal adoptions and

10 The Hague Conference on Private International Law at: https://assets.hcch.net/upload/adoguide_

e.pdf. 11 See,

Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography (27 February–24 March 2017), A/HRC/34/55, at paras 28, 53 and 64. 12 Ibid. at para 93.

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at ensuring that adoptions take place solely in the best interests of the child and in conformity with international norms and standards”.13

5.2.3.2

International Pressure to Improve National Standards of Practice

The use of political pressure to require non-Hague sending countries to raise their standards of practice has from time to time been demonstrated as an effective mechanism for promoting change. For example, the moratorium on intercountry adoption from Romania was imposed, primarily through the EU mechanism, as a carrot and a stick with regard to reform of their child protection laws as much to stop the corruption associated with their processes and procedures. When public policy concerns arise regarding the processes for intercountry adoption, as occurred in relation to Cambodia in 2005 where there were issues regarding the authenticity of parental consent and the scale of financial gain by intermediaries, then the government of a receiving nation, such as the U.K., may suspend all adoptions from that country.14 More recently, similar problems have arisen in respect of standards of practice in Guatemala resulting in similar external pressure being brought to bear.

5.3 Background ICA has existed for a long time. It was evident, for example, in the practice of sending many tens of thousands of orphaned, abandoned and/or neglected children from the U.K.15 and Ireland16 to Australia,17 Canada18 and other British colonial and postcolonial countries in the late nineteenth and early twentieth centuries.19 Then as now the political reality driving a national policy of sending children overseas remains rooted in poverty. Invariably it is the poor children, whose parents are unavailable or unable to care for them, that are exported by under-resourced state authorities to meet the needs of adopters in other countries. Its modern manifestation, however, signifying the movement of children from institutional care in impoverished or conflict ravaged countries into the middle-class 13 Special

Rapporteur report, A/HRC/34/55, op cit at para 69. R (Thomson and Others v. Minister of State for Children) [2005] EWHC 1378 (Admin). 15 See, for example, Bean, P. and Melville, J., Lost Children of the Empire, London, Unwin Hyman Ltd., 1989. 16 See, for example, Robbins, J., The Lost Children: A Study of Charity Children in Ireland 1700– 1900, Institute of Public Administration, Dublin, 1980. 17 See, for example, Humphreys, M., Empty Cradles, Random House, 2009. 18 See, for example, Parker, R., Uprooted: The Shipment of Poor Children to Canada, 1867–1919, The Policy Press, Bristol, 2008. 19 See, for example, Milotte, Banished Babies: The Secret History of Ireland’s Baby Export Business, New Island Books, 1997. 14 See,

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homes of adopters in western societies, most probably dates from the aftermath of World War II. This ‘child rescue’ approach has its origins in a very practical and necessary humanitarian response to the plight of refugee children abandoned or orphaned in the many theatres of war.

5.3.1 Needs ICA, as we now know it, was initially concerned with providing children orphaned by conflict with new families. It most often took the form of adopters extending their family life and parental care to accommodate children additional to their own; the needs of infertile couples were not a particularly relevant factor. It has changed greatly in recent years in response to pressure from the needs of the different parties involved.

5.3.1.1

Children

The modern interpretation of ICA, in terms of the geographic/cultural distances separating sending and receiving countries and the probable transracial component, first manifested itself in the international response to the physical and healthcare needs of the many young victims of the Korean War. The children concerned were most probably orphans, not necessarily babies and their adopters may well have had children of their own. As the role played by infertility, a primary motivating factor for adopters, grew to become a significant driving force, so the needs of children abandoned or abused by parents, rather than simply orphaned, came to be seen as also appropriately met by such adopters. Indeed, as has been rightly said, “for most of the homeless children of the world, international adoption represents the only realistic opportunity for permanent families of their own”.20 However, many present day adopters are often most interested in babies, preferably healthy and voluntarily relinquished, rather than children simply in need of a home. For sending countries, such a switch in focus— from providing adopters with children in need of a home to instead providing babies to adopters in need of family life—has presented certain difficulties: • it removes the most adoptable children from their own country, culture and kin and thereby exposes them to possible future difficulties in relation to matters of identity, racism and language; • it pre-empts any possibility of meeting the needs of their own adopters; • it leaves behind those children who are statistically less likely to be adopted and who will therefore probably be consigned to institutional care; and 20 See,

Bartholet, E., ‘International Adoption: Current Status and Future Prospects’ ADOPTION, Vol. 3, No. 1—Spring 1993, p. 90. Also, see, generally Doek, van Loon and Vlaardingerbroek (eds) Children on the Move, Martinus Nijhoff Publishers 1996.

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165

• because the ICA market now places a higher value on young healthy babies, there is a correspondingly greater likelihood of market forces introducing profit motivated persons and agencies with potential to compromise the legality of the process. 5.3.1.2

Birth Parents

Maternal choice, to retain rather than relinquish a non-marital child, has played a significant role in reducing the number of children available for domestic adoption in modern western societies. The fading of the stigma traditionally attached to the role of unmarried mother, coupled with the availability of welfare benefits and other support services, has allowed parenting to become a feasible option for many such mothers. As domestic adoption in some modern western societies changes from being consensually based to coercive in nature, with the availability of children being determined more by the courts than by parental choice, the children involved have tended to be older and therefore to have needs for some level of ongoing contact with their birth parents. The latter are now much more likely to have a role in the lives of their adopted children and to attract the involvement of public service support that was the case up to the close of the twentieth century. Conversely, in many underdeveloped countries the lack of any support services and exposure to unremitting poverty increases the likelihood of parental relinquishment or abandonment of children. In some cases the benefit to poverty stricken birth parents in places such as South America and Africa derives not only from the ending of care responsibility and the comfort of knowing that their child will be better cared for by others, but from the direct or indirect payments made by intermediaries seeking to arrange adoption placements. To some this equation presents as just another instance of the west ‘outsourcing’ its production requirements to third world countries. For birth parents in sending countries, intercountry adoption can also present certain difficulties: • circumstances of poverty and hardship can make them vulnerable to pressure to relinquish a child for financial gain; • the post-adoption opportunities for contact, access or for practicing ‘open’ adoption are seriously restricted; and • whether or not financial gain is involved, they can be exposed to subsequent discriminatory attitudes from within their local communities. 5.3.1.3

Adopters

The key factor in the growth of this form of adoption has been the motivation of prospective adopters. Whether driven by altruism or by personal need, they have sought to acquire elsewhere the babies unavailable in modern western society due to the fall in fertility rates, exacerbated by deferred conception to facilitate career choices, an increase in the efficiency and use of birth control techniques together with

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the modern growth in government support services for single parents. The shortfall in supply relative to demand is well documented, for example21 : In Italy, for every local child eligible for adoption there are an estimated 15 couples wishing to adopt. Other countries where the demand for adoptable children exceeds the local supply are Argentina, France, Singapore and the United States. The gap between adoption applications and the number of adoption orders granted is particularly acute in the developing countries.

This should not detract from an acknowledgment that in many cases ICA is triggered by the compassionate altruistic response of prospective adopters to the plight of children, orphaned by war or abandoned to institutional care, in foreign lands. For some prospective adopters, satisfying parenting needs within their country of origin may have been constrained by religious conviction or by prevailing national laws preventing recourse to such options as AID, GIFT or surrogacy arrangements that might otherwise have been available.22 For others, particularly those resident in Sweden and Denmark, the fact that no children are available on a non-consensual basis from the public child care system has left ICA as the only possible means of acquiring a child.23 Indeed in Sweden some 800–1000 such adoptions have been recorded every year with a total of approximately 40,000 children adopted from overseas since 1969, mostly from Asia and South America (see, further, Sect. 12.2.2.1). For all prospective adopters the likelihood of acquiring a baby as opposed to an older child is increased—though less so than previously—by taking the intercountry rather than in-country adoption route. Adopter choice is also increased in other respects. In countries where the source of children for third party adoptions is very largely via the public child care system the fact is that the majority of those available have problems of some sort, if only in forming attachments, but for many their exposure to abuse and transient relationships have left them seriously impaired— psychologically if not also physically. Adopters seeking a child more in need of love and nurture than long-term emotional rehabilitation will be tempted to look overseas. Then there is the little discussed matter of race. Some adopters opt for racial congruity through their choice of ‘sending’ country with white Caucasians in Ireland, for example, looking more towards Russia, Romania, and Eastern Europe

21 See,

Menozzi, C. and Mirkin, B., ‘Child Adoption: A Path to Parenthood?’, op cit at p. 4. Ireland, recourse to such options would not be possible within existing law. 23 In other countries, such as France and Ireland, the complete judicial termination of parental rights in respect of children in care is a rarity and, coupled with the shift towards single parents keeping their babies, leads to an established reliance on intercountry adoption. The extent of this reliance has been noted by Menozzi, C. and Mirkin, B.: “In Finland and Italy, for example, respectively 80% and 90% of persons who applied for an intercountry adoption had no biological children of their own. In Australia, nearly 60 per cent of children who were adopted during the period 2003–2004 were adopted by parents with no biological children (Australia, Australian Institute of Health and Welfare, 2004).” Op cit at p. 4. 22 In

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(approx 65% of all registered foreign adoptions in the period 1991–200624 ) rather than to Africa or Asia for children (see, further, Sect. 7.2.1.5). Possibly also, for some, the attractions of ICA have increased as contemporary domestic adoption embraces the principle of ‘openness’ and with it the probability of some degree of contact with a parent and/or other members of the adopted child’s family of origin. The prospect of adopting a child born in a foreign land many thousands of miles away may carry with it assurances of privacy, anonymity and escape from any ongoing complicating entanglements. In fact, this form of adoption may be attractive because it embodies many of the characteristics traditionally associated with ‘closed’ adoption in western society. For adopters in receiving countries, ICA again presents certain difficulties: • achieving an appropriate and satisfactory match between their home circumstances and the needs of a child from a different socio-economic and cultural context will necessarily involve a high degree of uncertainty; • accessing verifiable information regarding parental consents, health and genetic background of the child etc. can be problematic; • the costs will be considerable; and • as they are often older than the average adopter, they can have problems coping with the complex adjustments that need to be made by and for their adopted child. There is also the possible inequity of restrictions placed upon prospective adopters. As Mignot points out25 : The conditions to be satisfied by potential adopters vary from one country to another. For example, 100 countries allow single people to adopt while 15 only authorize married couples to do so; 81 countries set a minimum age for adopting and 15 a maximum age. Intercountry adoption is prohibited in 30 countries.

5.3.2 The Countries The socio-economic divide between countries of origin (the ‘sending’ countries) and countries of destination (the ‘receiving’ countries) for the children involved in intercountry adoption is unmistakable. The flow of children is now invariably from the more undeveloped countries of the southern hemisphere to the more affluent societies of the north, reversing the direction first established in the latter part of the nineteenth century and continuing until the middle of the twentieth. This contradistinction points up the reality of the push and pull dynamics that directs the ICA flow of children.

24 See, The Adoption Board, Annual Report 2006, Dublin, at p. 43, Table 14. Note the contrast with

Sweden where in 2005, for example, of the 1083 foreign children between the ages of 0–10 years adopted in Sweden, 773 were from Asia. 25 Mignot, J-F, February 2015, op cit at p. 1.

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The Sending Countries

The lack or collapse of the infrastructure of some third-world countries, for reasons of chronic poverty, war or socio-economic/political turmoil, has been a significant factor in generating the availability of children for adoption. On the African and South American continents, for example, the internal migration of people in search of food, security or employment has in some countries led to a widespread breakdown in the traditional practice of relying on the extended family network to absorb child care needs: as is only too clearly demonstrated by the queues of ‘illegal immigrants’ daily risking their lives to enter countries such as Italy, Australia and crossing from Mexico into the U.S. (including, in the latter case, many hundreds of unaccompanied minors). Instead, whether orphaned or abandoned, increasing numbers of children are admitted to domestic institutional care. For the public health care systems of such countries, also victims of the prevailing social pressures and often unable to adequately cope with the increased workload, ICA has seemed a provident solution. Sending countries, however, are in a position to set the terms for their engagement in a process which is demand led. A political dimension to their engagement in this process has, in some instances, been clearly evident. Poverty The experience of South Korea illustrates the significant role played by poverty in generating the availability of children. From 1956–1994 this country was by far the most important single contributor to ICA26 sending a total of some 150,000 children to adoptive homes in other countries. While initially the flow was stimulated by the plight of many children who as orphans or refugees were the casualties of war, this changed over time as government policy prioritised the use of revenues for industrialisation rather than for developing social and healthcare facilities. In both sets of circumstances, the government’s political stance was to deliberately facilitate the export of children as a means of avoiding a drain on scarce national resources. In the early 1980s, as national prosperity increased in South Korea, so its importance as a sending country rapidly declined (see, further, Sect. 17.2.2.1). Ideology Political ideology can also produce the same result. The government decree in China that only one child per family should be the rule, coupled with the preference for male children, led to many unwanted female children being absorbed through the ICA process. Again, in Romania under the Ceau¸sescu regime, the official policy that each family should have a minimum of four children resulted in many being abandoned in orphanages by parents who could not provide for them. Probably there is also a political dimension to the current protracted freeze in ICA arrangements between Russia and the U.S. (see, further, Sect. 20.2.2.1). 26 See, Hubinette, T., ‘Adopted Koreans and the Development of Identity in the ‘Third Space”, in Adoption & Fostering, London, BAAF, vol. 28, no. 1, 2004, pp. 16–24 where the author refers to the resulting Korean adoption diaspora.

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A political dimension to China’s role is evident also in the terms on which it chooses to make children available. For example, it now requires prospective adopters to sign statements that they are not gay or lesbian and it does not allow single people to adopt, nor those who are obese, taking psychotropic drugs, over the age of 50, or who are poor (see, further, Sect. 19.5.3.2). Religion In small culturally homogenous countries, where religion is a dominant force in social life and is supported by the institutions of the state, non-marital births can result in the social exclusion of their parents. In such circumstances, as in Ireland up until the mid1970s, the political complicity with prevailing religious values facilitates the practice of sending ‘illegitimate’ children abroad for adoption (see, also, Sect. 7.2.2.1).

5.3.2.2

The Receiving Countries

In all modern western societies, the rapid decline in the number of children available for adoption, particularly healthy babies, generated a need now met by availing of those that are unwanted or cannot be coped with in their countries of origin. Some countries have demonstrated a particularly strong and consistent interest in ICA. The U.S., for example, provided homes for two-thirds of all Korean children adopted outside their country of birth and received at least 2000 children from Ireland during the 1960s. Europe in general and Scandinavia in particular has also over many decades accepted children from other countries for adoption placements. As noted by Hubinette27 : The 45,855 adopted Koreans in Europe represent one out of three of all international adoptees on the continent. France is the leading country with about 11,000 individuals, but large numbers have been placed in Belgium, the Netherlands, Luxembourg and Scandinavia. Koreans constitute half of all international adoptees in Denmark and Norway and one-fifth in Sweden… Finally, there are altogether 5,000 adopted Koreans in Canada, Australia and New Zealand.

For some receiving countries, a political dimension has been evident, driven for example by strategic allegiances, concerns relating to immigration, policies reducing the number of children available for adoption or policy constraints on the use of domestic adoption. Strategic Allegiances As Hubinette has also pointed out,28 where ICA arises from the circumstances of war then the outflow of children tends to be in the direction determined by the political allegiances of the war ravaged countries. So, following the Korean War, by far the majority of children from South Korea placed for ICA were adopted in the U.S. with 27 See,

Hubinette, T., ‘Adopted Koreans and the Development of Identity in the ‘Third Space”, in Adoption & Fostering, London, BAAF, vol. 28, no. 1, 2004, p. 19. 28 Ibid., at pp. 18–19.

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the remainder mostly going to adopters among South Korea’s other wartime national allies in northern Europe. This pattern was repeated in the period following the wars in Europe and Vietnam. Immigration Control The U.K., unlike many other countries in Europe, does not have an established history of involvement in ICA; at least not as a receiving country. This may be partially attributed to its public policy of rigorously policing immigration in any form.29 It is also probable that unlike other countries, for example Ireland, the U.K. was able to divert the interests of prospective adopters towards children in the public care system. Then there is the fact that the legal and professional framework was not conducive to ICA: adoption law prohibited non-agency placements; and local authority social work staff often treated assessment for foreign adoptions as a distraction from their mainstream work. Policies of Permitting and Resourcing Alternatives to Adoption In countries where governments have a firm policy of supporting single parents (by welfare benefits, childcare facilities, housing and employment opportunities etc.) then adoption is not, in socio-economic terms, a forced option for such parents. Again, where there are policies permitting access to birth control measures and to fertility clinics (use of GIFT, AID etc.) then a higher proportion of annual births are planned and wanted. Both policy strands, however, result in fewer children becoming available for domestic adoptions which in turn increases the recourse to other countries. Policy Constraints on the Use of Domestic Adoption In many modern western countries there would seem to be a correlation between a rise in ICA and the existence of a government policy preventing the adoption of children in the long-term care of the state due to parental fault or default.30 Again, as a consequence of this political stance, the numbers of children available for domestic adoption are restricted which redirects prospective adopters to other jurisdictions. This is likely to be the case notwithstanding the fact that prospective adopters are also choosing the intercountry route in preference to domestic adoption because the former offers a better chance of adopting a younger child while the latter generally restricts applicants to older or more difficult children accompanied by the likelihood of ongoing involvement with birth families and social workers. 29 See, for example, Singh v. Entry Clearance Officer, New Delhi [2004] 3 FCR 72 for an illustration of this policy in action in respect of a child whose adoption in India by British relatives was not recognized in the U.K. which refused to issue an entry permit. The Court of Appeal ruled that in this instance the form of adoption constituted ‘family life’ for the purposes of Article 8 of the European Convention and must be recognized as such under U.K. law. 30 Although it has to be said that Hayes was unable to substantiate any such inverse correlation when comparing rates of ICA with domestic adoptions more broadly (i.e. not specific to child care). See, further, Hayes, P., ‘Intercountry Adoption: A Comparative Analysis of its Effect on Domestic adoption Rates’, Full Research Report, ESRC End of Award Report, RES-000-22-1840. Swindon: ESRC, 2009.

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5.4 The Law: Developments Leading to an International Framework The early history of the law relating to ICA reveals a primary concern with the prevention of ‘trafficking’ in children.31 This term refers not just to the age old practice of parents relinquishing their children for financial reward but also to the absence of an objective determination of the welfare interests of the child, the role played by any intermediaries, the validity of consents (including that of the child), irregular payments and the possible abuse of immigration rules and procedures.

5.4.1 The Common Law The Court of Appeal in Re Valentine’s Settlement 32 stated the general rule that, in keeping with the principle of international comity, recognition will be granted to an adoption made in another country when the adopters are domiciled (or, more recently, ‘habitually resident’) in that country at the date on which the adoption order was made.33 Denning LJ adding that the child also should be resident there at the time the order is made. The common law concept of domicile required more than mere residence in a place. It also required evidence of an intention to remain more or less permanently in a place. This rule made the recognition of ICA unnecessarily restrictive. For the purposes of the law in England and Wales, a foreign adoption will be treated as a common law adoption when it is not made in the British Isles, is not a Convention or an overseas adoption but is made within customary or common law rather than a statutory framework. In such cases, formal recognition of the validity of the order will be given by the High Court provided that recognition would not be contrary to public policy.

5.4.2 The Universal Declaration of Human Rights 1948 The ever growing international body of human rights is underpinned by this foundational document (see, Sect. 4.4.10).

31 A

theme continued in the U.N. Convention (Article 11) and in the Hague Convention (the Preamble). 32 [1965] 1 Ch. 831. 33 See Dicey, Morris and Collins, The Conflict of Laws, Sweet & Maxwell, London, 2006) at p. 1081. For an account of the difficulties that non-recognition of an adoption can cause see Rose, The Final Decision on Adoption Recognition in Europe, RD Publishers, 2002.

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5.4.3 The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 This Convention (ECHR) established a framework of international rights some of which have a bearing on ICA. Article 8, which states the right to respect for private and family life has generated considerable adoption related case law with implications for international practice (see, further, Sect. 4.4.7).

5.4.4 The Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoption 1965 As this Convention was only ever ratified by the U.K., Austria and Switzerland it never exercised much international regulatory influence. However, although it has since been overtaken by the Hague Convention 1993, it did begin to shape policy (see, further, below at Sect. 5.6.1.1).

5.4.4.1

Article 32—Intercountry Adoption Fees

Article 32 obliges a state to ensure that the fees charged in respect of an intercountry adoption are reasonable and relate proportionally to actual costs and expenses incurred.

5.4.5 The European Convention on the Adoption of Children 1967 This Convention—preceded by the Hague Convention on Jurisdiction, etc., Relating to Adoptions 1965 and the European Convention on the Adoption of Children 1967— sought to identify some common principles and standards of practice to serve as international benchmarks for the parties involved in adoption. For example, it established the principle that adoption should be in the interests of the child (Article 8, para 1) and should provide the child with a stable and harmonious home (Article 8, para 2). It gave protection to adopter’s rights by emphasising the need for anonymity (Article 20) and to birth parent’s rights by establishing that any consent given by a mother to the adoption of her child is invalid if given within six weeks of that child’s birth (Article 52, para 3); she can, however, give a valid consent to placement within that period. Some principles, however, proved contentious. One such was the requirement stated in Article 6(1) that national adoption laws “shall not permit a

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child to be adopted except by either two persons married to each other, whether they adopt simultaneously or successively, or by one person”.34 However, given that the adoption of adults plays a significant role in the adoption processes of many of the jurisdictions presently being considered, it is important to bear in mind that this Convention has no relevance to such adoptions. Article 3 declares that the Convention applies only in respect of a child who, at the time when the adopter applies to adopt has not attained the age of 18, is not and has not been married, and is not deemed in law to have come of age. Some Convention principles, have proved contentious.

5.4.6 Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986 The General Assembly of the United Nations adopted this Declaration in 1986. Article 13 states that the primary aim of adoption should be to provide a permanent family for a child who cannot be cared for by its own parents. Article 17 recognises that ICA is a childcare mechanism of last resort and states that: If a child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the country of origin, intercountry adoption may be considered as an alternative means of providing the child with a family.

This U.N. Convention, though without the force of law and signed by very few countries, provided a starting point for consideration of further international initiatives to regulate ICA. It states that the best interests of a child should be paramount including the right to affection, security and continuing care.

5.4.6.1

Article 3—Care Outside the Family of Origin

Article 3 provides that ‘the first priority for a child is to be cared for by his or her own parents’ but, failing that ‘…care by relatives of the child’s parents, by another substitute—foster or adoptive—family or, if necessary, by an appropriate institution should be considered’.35

34 In July 2002 Sweden withdrew from the Convention following changes in its national adoption laws allowing for adoption by homosexual couples in a registered partnership, as it determined that this aspect of its new national adoption laws conflicted with Article 6(1). 35 See, Article 4.

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Article 8—Right to Name Etc.

Article 8 provides for a child’s right to a name, nationality and legal representation. It also requires signatory states to provide for the supervision of placements.

5.4.6.3

Article 24—Intercountry Adoption

Article 24 requires due weight to be given to both the law of the State to which the child is the national and the law of the respective adoptive parents. In that context it requires due regard to be given to ‘the child’s cultural and religious background and interests’.

5.4.7 The United Nations Convention on the Rights of the Child 1989 This Convention (UN CRC) is an instrument of international law—binding on states that have ratified it—which recognizes the rights of the child and the corresponding duties of the State. It declares in its Preamble: …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.

This is underpinned by: Articles 18 and 20, which again reinforce the principle that the state should give priority to measures that keep children in their families and culture of origin; by Article 21 which requires a child’s welfare interests to be treated as of paramount importance; and by Article 11(1) which requires measures to be taken to combat the illicit transfer and non-return of children abroad. These statements of principle, favouring state support to preserve the integrity of a child’s family of origin, are counterbalanced by principles that distinguish the separate interests of children. For example, the Preamble also states that: …the child, for a full and harmonious development, should grow up in a family environment, in an atmosphere of happiness, love and understanding…

It is a statement that falls short of declaring that a child has a right to a family. However, in circumstances where a child’s family of origin is unable to meet the needs of that child, then Article 20 requires the state to “ensure alternative care for such a child”.36 Article 21 recognises that ICA may be considered as an alternative means of providing for a child’s care but only after all other options for retaining 36 Subject

to the requirement that “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”.

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the child within his or her country of origin have been exhausted. In that event, it requires the child’s interests to be treated as of paramount importance. In addition, Article 9 provides that children should not be separated from their parents against their will except where this is determined to be in the best interests of the child and in accordance with law. It is also notable that Articles 11 and 35 place duties on States to take measures to prevent child trafficking.37 The steady increase in the number of signatories was accompanied by an increase in recourse to ICA. It seemed that the countries concerned were protecting and assisting children through facilitating arrangements for substitute family care in other countries rather than through provision of domestic support services that would enable birth families to improve their caring capacity. The Convention framework, by legitimising the transfer of children between countries, albeit within regulatory constraints, was itself politically sanctioning ICA and serving to increase the practice with inevitable detrimental effects for the domestic child care infrastructure of the sending countries. However, arguably the sustained decrease in ICA in recent years may be attributable at least partly to investments made or prompted by the Convention that have resulted in a growing domestic capacity in former sending nations.

5.4.7.1

The United Nations Guidelines for the Alternative Care of Children

Adopted by the U.N. Human Rights Council in 2009, the Guidelines were intended to enhance implementation of the CRC “regarding the protection and well-being of children deprived of parental care or who are at risk of being so” (para 3). They start from the general principle that efforts should primarily be directed towards enabling children to remain in or return to the care of their parents. Removal from Family of Origin Removing a child from the care of the family should be seen as a measure of last resort and should, whenever possible, be temporary and for the shortest duration possible (para 14). Children temporarily or permanently deprived of their family environment, or in whose best interests cannot be allowed to remain in that environment, are entitled under the CRC to special government protection and assistance (UN CRC, Article 20(1)). Alternative Care Such alternative care can include “foster placement … adoption or, if necessary, placement in suitable institutions for the care of children” (UN CRC, Article 20(3)). 37 In

2005, the 4th World Congress on Family Law and Children’s Rights issued a Communiqué, which, while noting the tension between the Convention on the Rights of the Child and some aspects of international adoption, stated that international adoption has a place, even as a last resort, provided it is properly regulated for the protection of orphaned and refugee children. See 4th World Congress on Family Law and Children’s Rights, Cape Town, South Africa, 20–23 March 2005 at www.childjustice.org/html/2005.htm.

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Decisions regarding children in alternative care should have due regard for the importance of ensuring children a stable home and meeting their basic need for safe and continuous attachment to their care givers, with permanency generally being a key goal (Guidelines, para 12). Family Based Care In accordance with the predominant opinion of experts, alternative care for young children, especially those under the age of 3 years, should be provided in family based settings (Guidelines, para 22). “Where such arrangements are not possible or are not in the best interests of the child, efforts should be made to find a permanent family placement within a reasonable period” (Guidelines, para 44).

5.4.8 The Hague Conference on Private International Law The increased mobility of families in the latter part of the twentieth century was accompanied by ever more cross-jurisdictional disputes concerning matters such as marriage, divorce, child abduction and adoption. In an attempt to substitute international agreement for country-to-country negotiations on the rules and procedures for regulating such matters, the Hague Conference on Private International Law held a number of conferences to develop Conventions that would state the relevant agreed principles, standards and rules.38 Eventually four Conventions concerning children were produced including the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 1993.39 The latter was a response to increased concern regarding trafficking in children, perhaps generated in particular by the international interest in rescuing children from the orphanages of post-Ceau¸sescu Romania (see, further, Sect. 15.2.2.1). It is, however, important to bear in mind that implementation of the above Hague Conventions continues to depend upon the voluntary co-operation of signatory states. While the 1993 Convention aims to raise standards of practice it cannot be said to have a strictly regulatory function. It stops short of prohibiting non-agency adoptions: prospective adopters remain free to make their own private independent adoption arrangements; though these are not encouraged and are restricted.40 Its administrative bodies are purely advisory in nature.

38 See,

for example, Dyer, A., The Internationalisation of Family Law, 30 UC Davis Law Review 625 (1997). 39 The other two being the Convention on the Civil Aspects of International Child Abduction 1980 and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996. 40 The Report of the Hague’s Special Commission on the Practical Operation of the Convention in 2005 recommended that member countries actively discourage direct contacts between prospective adoptive parents and authorities in the child’s country of origin until authorized to do so by those authorities.

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5.4.8.1

177

The Hague Conference Permanent Bureau

The Bureau provides a supervisory function for the Hague Convention. It gives effect to its role by monitoring practice and issuing extensive guidance on ICA issues options.41 So, for example, in its Good Practice Guide it recognised a need for the stricter accreditation and authorisation of agencies involved in ICA, with special attention to the professional quality and scope of the services they provide and to ensuring that their numbers are not greater than those needed. In an important policy statement, the Guide also explains the role to be played by the subsidiarity principle42 : The subsidiarity principle is central to the success of the Convention. It implies that efforts should be made to … ensure that a child has the opportunity to be adopted or cared for nationally. It implies also that intercountry adoption procedures should be set within an integrated child protection and care system which maintains these priorities. However, States should also ensure that efforts to achieve this goal do not unintentionally harm children by delaying unduly a permanent solution through intercountry adoption. States should guarantee permanency planning in the shortest time possible for each child deprived of his/her parents. Policies should work to promote family preservation and national solutions, rather than to hinder intercountry adoption.

5.4.8.2

The Hague Conference Special Commission

The 85 member States that now constitute this body, meet every five years to review national progress on relevant issues. It has taken steps to improve the operation of the Convention by publishing a guide to implementation and initiating the Intercountry Adoption Technical Assistance Programme (ICATAP) to provide support and training to those new signatory nations, such as Guatemala, that are struggling to meet Convention standards. As Estin notes43 : the Conference has also encouraged receiving states to accept more responsibility for improving the situation in states of origin by providing development aid for child protection that is not directly linked to intercountry adoption, by controlling the numbers of applications from adoptive parents and the amount of money that flows into the system, and by applying the standards of the Convention to adoptions from non-Convention countries.

41 See, the Permanent Bureau, ‘The Implementation and Operation of the 1993 Hague International Adoption Convention: A Guide to Good Practice’, The Hague, 2008. Also, see publications by the Permanent Bureau in 2012: by the Working Group established to develop a common approach to preventing and addressing illicit practices in intercountry adoption cases’; and by the Expert Group on the Financial Aspects of Intercountry Adoption. 42 ‘A Guide to Good Practice’, The Hague, 2008, ibid., at p. 22. 43 See, Estin, A., ‘Families Across Borders: the Hague Children’s Conventions and the Case for International Family Law in the United States’ at p. 90. See, further, at: http://www.law.uiowa.edu/ documents/Estin_BOOK.pdf.

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The main European grouping of accredited agencies, Euradopt, has also developed ethical guidelines to which its membership commits.44 ISS and UNICEF are also very relevant.

5.5 Contemporary Intercountry Adoption: Policy and Principles The Hague Convention, other international Conventions and much national legislation now reveal an acceptance of permanency planning as a fundamental principle to be applied in an ICA context in circumstances where children cannot be adequately cared for in their families and countries of origin. The entitlement of every child to safe family life is to prevail over all other considerations and this is to be furthered through a general policy that includes facilitating ICA in accordance with agreed standards of practice.

5.5.1 A Controversial Policy For the value systems of modern western nations—the legal structures of which are highly sensitised to issues of equality and non-discrimination as played out in matters of race, class etc.—the ICA phenomenon carries considerable baggage. For third world countries, coming to terms with the legacy of colonialism, this phenomenon resonates with earlier experiences of exploitation. Some of the more strident viewpoints have centred on political interpretations of ICA where the transfer of children is seen as a proxy manifestation of mercenary national interests. On the other hand there is the view that “the current tendency to glorify group identity and to emphasize the importance of ethnic and cultural roots combines with nationalism to make international adoption newly suspect in this country as well as in the world at large”.45

5.5.1.1

The ‘Commodification’ of Children

ICA is seen by some as just another form of international trade in which children are the ‘goods’ to be traded.46 They are necessarily objectified as neither ‘buyer’ nor 44 See, further, at: http://portal.euradopt.org/index.php?option=com_content&view=article&id=6&

Itemid=15&lang=en. Note the “Accreditation and Adoption Accredited Agencies: General Principles and Guide to Good Practice”, Hague Conference, is available at http://www.hcch.net/upload/wop/adop2010_ pd02e.pdf. 45 See, Bartholet, E., ‘International Adoption: Current Status and Future Prospects’, op cit, p. 101. 46 See, further, Triseliotis, J., ‘Intercountry adoption: global trade or global gift?’, Adoption & Fostering, London, BAAF, vol, 24, no. 2, pp. 45–54, 2000.

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‘supplier’ has any real understanding of the singular needs and characteristics of the children involved. In this analogy, the buyers are the middle class infertile couples of western society choosing to acquire babies as they would any other commodity. The suppliers are those in deprived countries relinquishing to foreigners, responsibility for the children for whom they cannot afford to care. The profit element is present in the release from care costs, the fees charged by intermediaries and in the opportunity to parent that would otherwise be denied. This dynamic is one in which, arguably, the demand creates and drives the supply. As Hayes puts it47 : that is, the demand of potential parents abroad has the effect of creating or maintaining the supply of children, particularly given the inducement of the fees that these parents are willing to pay. It has been further argued that the financial benefits of placing children with foreign parents, may mean that contrary to the UN and the Hague, ICA may become a first choice of placing agencies.48

This, somewhat harsh, trading analogy is supported by evidence drawn from an assessment of the ‘marketing position’ of the supplier. As social stability has returned to countries such as Vietnam, Korea and Romania so their governments have moved to control the availability of the children by restricting or ceasing their involvement in ICA (see, further, Chaps. 15 and 17). Inevitably, this has resulted in western nations turning instead to other countries such as the Philippines, Cambodia, Guatemala and Ethiopia to make up the shortfall. For some observers such as Hubinette, ICA carries “ugly parallels to contemporary trafficking of women and the historic transatlantic slave trade”.49

5.5.1.2

Cultural Assimilation

The traditional ‘closed’ adoption system of western society has been predicated upon a perceived need to sever the child’s links with the past, assimilate him or her within their new family and build a fresh identity that denies the child’s origins. To a considerable extent, ICA has followed the same route. For the child involved, this has most usually entailed shedding the culture of their family of origin and substituting that of their adopters. Hubinette refers to it as a process whereby50 : assimilation becomes the ideal as the adoptee is stripped of name, language, religion and culture, only retaining a fetishised non-white body, while the bonds to the biological family and the country of origin are cut off.

47 See, Hayes, P., ‘Intercountry Adoption: A Comparative Analysis of its Effects on Domestic Adoption Rates’, ESRC End of Award Report, RES–000-22-1840, Swindon, 2009, at p. 1. 48 Ibid., citing: Dickens, J., ‘The Paradox of Intercountry Adoption: Analysing Romania’s Experience as a Sending Country’, International Journal of Social Welfare, 11, 2002, pp. 76–83; and Bainham, A., ‘International Adoption from Romania: Why the Moratorium Should not be Ended’, Child and Family Law Quarterly, Vol. 15, Issue 3, 2003, pp. 223–36. 49 Op cit at p. 19; citing Hermann Jr and Kasper, 1992; Triseliotis, 2000; Masson, 2001; Shiu, 2001. 50 Op cit at p. 20.

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Denial and assimilation may occur despite the fact that in countries such as the U.K., Adoption Panels invariably seek a commitment from prospective intercountry adopters that they will endeavour to instill and nurture in the adoptee a sense of their culture of origin and not restrict the latter to their own mono-cultural environment (See, also, Sect. 23.6.1.2). Nevertheless, the adopted child inevitably strives to fit in with and assume the cultural characteristics of their adopters.51 It has to be said that this instinctive adoptee approach accords with Bartholet’s comment that social workers tend to cling to ‘the classic false romanticism about the value of “cultural heritage”’; though it may be a comment that gains weight from being made from within the singularly multicultural society of the U.S.52 Intercountry adoptions are often also transracial and in such cases the scope for denial is clearly limited. However, there are those who suggest that perhaps some adopters are attracted by an obvious cultural difference; in fact, the more obvious the difference the stronger the attraction.

5.5.1.3

Colonialism

There are those who take the view that ICA is simply another modern manifestation of colonialism; not dissimilar to the economic and commercial cultivation of client relationships with third world countries by modern western societies. Hubinette, for example, argues that this has certainly been the experience of Korea53 : Continuous international adoption from Korea can thus be seen as a manifest symbol of Western dependency and the country’s position as a client state in the world system, pointing to the persistence of colonial thinking and reflecting global racial hierarchies.

He adds that “many leading supply countries in the field of international adoption fall under the U.S. sphere of influence or have been subjected to U.S. warfare: Korea, Vietnam, Thailand and the Philippines in Asia, and Columbia, Chile and Guatemala in Latin America”.

51 A considerable body of research testifies to the ability of transracial adoptees to assume the cultural characteristics of the receiving country; see, for example, Feigelman, W. and Silverman, A. Chosen Children: New Patterns of Adoptive Relationships, New York, Praeger (1983), and Saetersdal, B. ‘What became of the Vietnamese “baby life children”?’, Melbourne, paper in conference proceedings on Permanence for Children (1989). However, this must be set against the evidence from adoptees transnational groups that adulthood often brings difficulties with cultural identity. 52 See, Bartholet, E., in Gibbons, J.L. and Rotabi, K.S. (eds), Intercountry Adoption: Policies, Practices, and Outcomes, Ashgate, 2012, at p. 388. 53 Op cit at p. 19.

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5.5.2 Some Guiding Principles As ICA has become firmly established it has been possible to identify certain associated principles. While there is perhaps some truth in the above controversial interpretations placed on this phenomenon there is also much truth in the observation made by Silberman54 : The other side of the adoption crisis is the tragic condition of unwanted children and the failure of domestic systems to respond to local child care pressures in a way that appropriately ensures the developmental needs of the children concerned. While critics of intercountry adoption view transnational and transracial placement of children as forms of imperialism and genocide, others argue that intercountry adoption offers the only viable opportunity for many of these children.

5.5.2.1

Supporting the Weak Social Infrastructure of Sending Countries

By definition, the under developed countries lack the sophisticated, flexible yet robust social infrastructure that can withstand political or socio-economic upheaval. In particular their public child care services are often rudimentary and unable to cope with a sudden influx of children requiring, for whatever reason, an alternative to parental care. Institutionalisation, often the only child care resource available, offers a poor and damaging environment not conducive to nurturing the physical, emotional and social development of children who may already be traumatised on admission. They can often be poorly equipped and understaffed ‘warehousing’ facilities, with little professional child care expertise available, in which children are contained until such time as they reach adulthood. The understandable altruistic response of western nations, with their comparatively refined and well-resourced child care services, is to facilitate child rescue by ICA. However, as Triseliotis et al. rightly point out55 : Irrespective of the circumstances under which intercountry adoption takes place, it poses political, moral, empirical, policy and practical issues. From the policy and moral perspectives its practice gives rise to many similar questions to own-country adoption. In-country adoption in the West too has often come under criticism for involving the move of children mainly from poor to better-off families. The legitimacy of in-country or intercountry adoption will continue to be questioned until such time as adequate income maintenance schemes and preventative type services are developed to provide real choice for all birth parents.

The fact is that adoption, child care and foster care services are often so underdeveloped in such countries that ICA is an easier way of immediately securing the 54 See,

Silberman, L., ‘The Hague Children’s Conventions: The Internationalization of Child Law’ in Katz, S., Eekelaar, J. and Maclean, M. (eds.) Cross Currents: Family Law and Policy in the United States and England, Oxford, Oxford University Press, 2000, at p. 607; citing D’Amato, A., Cross-Country Adoption: A Call to Action, 73 Notre Dame Law Review 1239 and Bartholet, E., International Adoption: Propriety, Prospect and Pragmatics, 13 J Am Acad Matrim L 181 (1996). 55 See, Triseliotis, J., Shireman, J. and Hundleby, M., Adoption Theory, Policy and Practice, Cassell, London, 1997 at p. 181.

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welfare interests of the children involved. Some western nations, while facilitating ICA, are also investing resources in building the services infrastructure in sending countries that in the long-term will give the latter the capacity to cope with their own child care concerns and make better choices to secure the best permanency placement for each child in need. This strategy is encouraged and supported by the Hague Conference Special Commission which has taken steps to improve the operation of the Convention by publishing a guide to implementation and initiating the Intercountry Adoption Technical Assistance Programme (ICATAP) to provide support and training to those new signatory nations, such as Guatemala, that are struggling to meet Convention standards. As Estin notes56 : the Conference has also encouraged receiving states to accept more responsibility for improving the situation in states of origin by providing development aid for child protection that is not directly linked to intercountry adoption, by controlling the numbers of applications from adoptive parents and the amount of money that flows into the system, and by applying the standards of the Convention to adoptions from non-Convention countries.

5.5.2.2

Relieving Pressure on Adopters in Receiving Countries

In modern western nations both the fertility rates and the number of children available for adoption are steadily falling, which inevitably leads to increasing numbers of infertile couples joining the queue of prospective adopters. ICA was for some years seen as the best option for those who desperately wanted to have their own family and it was virtually the only option if they want a healthy baby. More recently, advances in reproductive technology and recourse to commercial surrogacy have inevitably reduced reliance on ICA. The pressures on prospective adopters are potentially harmful and not just for them but for all parties involved in this process. Dealing with many officials in a foreign culture can prove to be a very expensive and uncertain business. The considerable costs entailed in acquiring a child can compromise the legality of the adopters’ actions while the lack of information on the child can result in inaccurate data relating to his or her legal and health status. The officials with management responsibility for child care institutions can be tempted into putting undue pressure on unmarried mothers, can designate children as orphans when they are not, and can receive financial benefits from discharging children into the care of overseas adopters. In particular, needs driven adopters may not be as open to objectively considering whether they rather than anyone else are the best persons to promote the interests of a particular child who will be uprooted from their kin and culture and may also bring with them latent health disorders and associated complex care requirements. In countries such as the U.K., where there is a relatively high incidence of adoption from the public child care and protection system and methods of assisting conception (e.g., AID, GIFT etc.) and surrogacy are legally available and accessible through the 56 See, Estin, A., ‘Families Across Borders: the Hague Children’s Conventions and the Case for International Family Law in the United States’ at p. 90. See, further, at: http://www.law.uiowa.edu/ documents/Estin_BOOK.pdf.

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National Health Service, the ICA rate is low. In countries such as Ireland the reverse is the case. It may be that every opportunity should be provided for adopters to meet their needs without having recourse to ICA, at least as a forced option.

5.5.2.3

Balance in Addressing the Needs of Children

All western nations currently involved in ICA also have children in their public care systems whose needs could be more appropriately met by adoption. These children remain unadopted because of factors such as health and social care problems, age, lack of parental consent, lack of sufficient post-adoption support services and because they are in sibling groups. Even in countries where a facilitatory legal and administrative environment exists, the likelihood of such children being adopted is reduced by the counter attraction to prospective adopters of securing a healthy baby, without ongoing entanglement with members of his or her birth family, from outside the jurisdiction. Also, however beneficial for the children involved, ICA potentially provides a context for ‘trafficking’. The rights of some children in both receiving and sending countries can thus be endangered. Arguably, all receiving nations should be investing in facilitating the adoption of children consigned to their child care systems as well as in regulating ICA. While the research methodology employed by Chou and Browne has generated controversy, it is hard to challenge their finding that a positive correlation exists between the number of incoming international adoptions and the number of young children in institutional care in those receiving countries, and they are surely right to raise the question—why, after decades of international adoption, are there still large numbers of children in institutional care across Europe?57 Again, in all sending countries there are potential carers such as relatives or perhaps foster parents who could be supported, financially and otherwise, to provide permanency through adoption for a child in the public care system. ICA can obviate the need in sending countries to develop relevant local services. If such a country is unable to commit resources to this end then arguably there is a moral obligation on the more affluent western nations to do so.

5.5.2.4

Identity and the Adopted Child

The identity issue has always accompanied adoption: a compromised sense of ‘belonging’ is part of the package. It is felt most acutely by the adoptee, is troubling also for the adopter and it compounds the loss suffered by the birth parent. The rather sweeping and bleak observation made some time ago that “the uneasiness about adoption per se attaches itself to the adoptees also … they become sort of

57 See,

Chou, S. and Browne, K., ‘The relationship between institutional care and the international adoption of children in Europe’, Adoption & Fostering, Vol. 32, Issue 1, 2008, pp. 40–48, at p. 45.

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psychological vagrants, with no particular ties to anyone …”.58 applies most starkly to those who acquire adoptee status via the intercountry route. This issue is one that comes with significant political connotations. In the years following the two world wars, when adoption generally became a statutory process, the question of identity was all important: nations were divided and labelled according to ideology; societies were structured according to class and often dictated by bloodlines; monogamous marital family units prevailed; and, in general, individuals were identified by their trade, profession or occupation (whether as ‘housewife’, ‘breadwinner’ or ‘on the dole’, people had social roles with accompanying ascribed expectations). For adoption to fit in with such a tightly ordered world the identity of the adoptee was sacrificed, and he or she was wholly assimilated into that of their adopters. The law (or the common law) saw to it that, in tandem with expunging links to birth parents, all hallmarks of status were duly extended from adopter to adoptee: ‘legitimacy’, altered birth certificate, citizenship, rights of inheritance and rules of consanguinity etc. Adoption agencies aided and abetted the assimilation by carefully matching adopters and adoptee in accordance with physical characteristics etc. and often also by destroying records. All of this amounted to a comprehensive denial of the adoptees’s origins and ensured that they conformed to a socially ascribed identity rather than have the opportunity to acquire one built upon authentic foundations (see, also, Sect. 23.6.1.2). In the early years of the twenty-first century, the issue of identity is much more about individuality and a personalised sense of belonging than about social role. The law now recognizes the importance of genetic links, acknowledges that identity is informed by culture and must be driven by the needs and choices of the individual concerned and guided by the information made available to them. The fundamentals of third party adoption and its political dimensions are left clearly exposed in an intercountry context. Abandonment The truth that many if not most adopted children are abandoned, physically and/or psychologically—with or without any fault on the part of birth parents—is unavoidable in intercountry adoption. The act of abandonment is, arguably, one that attracts the collusion of government and agencies in the ‘sending’ country and is passively reinforced by the ‘receiving’ country. It often has poverty as its root cause. This is always a particularly hard truth for any adopted child to accommodate. The evidence of abandonment, required by the Hague Convention, can be circumvented by nations choosing to opt for bilateral agreements rather than commit to the Convention. Denial Most adoptions cross social boundaries of one sort or another. This is obvious in the majority of intercountry adoptions; visually so, as they are often also transracial in nature. For an adopted person, genetic links to their family of birth can be 58 See,

p. 80.

Haimes, E. and Timms, N., Adoption, Identity and Social Policy, London, Gower, 1985 at

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crucial, if only for health reasons, but other connections are also important: aptitudes, physical characteristics and appropriate role models all go towards building a sense of belonging. The corollary, regarding the integrity of bloodlines, may also be true as members of the adopters family may not view the adoptee as truly ‘one of us’. Then there is the matter of stigma. Discovering the facts relating to families of origin can be most difficult for the subject of an intercountry adoption as in many cases the information is missing, misleading or false. The aura of taboo and desire for anonymity that characterized the role of relinquishing birth parents in the early stages of domestic statutory adoption in western nations is now strongly associated with their contemporary counterparts in the ‘sending’ countries. It now has an additional overlay of stigma arising from the betrayal of ethnic solidarity by surrendering a child to adopters from a different racial group. The questions—‘Where do I come from? Where do I belong?’—that particularly trouble adopted children, and the answers to which offer signposts for building a selfdetermined identity, are much more difficult to brush aside when openly advertised in an intercountry adoption. They are also much more difficult to answer given the obstacles of great distances, language, poverty and the paucity of information that must first be overcome. Culture An individual’s sense of identity is developed or perhaps conditioned through a process of exposure to a shared history, place, language, experiences, icons and physical surroundings etc. with a group which accepts that individual and of which he or she feels a part. The nuances of culture do much to shape, often subliminally, an awareness of where we feel we belong. For the subject of an intercountry adoption the challenges of accessing their culture of origin, so that it may contribute towards creating an authentic identity, are considerable. Given that normally an adopted child will instinctively strive to demonstrate their loyalty to adopters, and be accepted as belonging to their new social setting, there is an issue as to where the responsibility lies to bridge the culture gap. If receiving countries are to avoid allegations of acquiescing in a modern form of proselytizing, they will have to put in place mechanisms to ensure that links are maintained between the child and the sending country and keep their culture of origin alive for them.

5.6 Contemporary Intercountry Adoption Law Among the growing body of international treaties, Conventions and protocols there are some that are specific to adoption and many that variously impact upon parent, child and adopter relationships. Some are binding on most nations and all are binding on a few.

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5.6.1 The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 This Convention has the distinction of being the first truly international piece of regulatory legislation due to the near global reach of its provisions.59 Of the four Hague Conventions on matters relating to children,60 this one is most directly relevant for present purposes.61

5.6.1.1

The Hague Convention: Aims and Objectives

Replacing the Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees relating to Adoptions 1965, the 1993 Convention was signed by the U.K. in 1994 and ratified by it in June 2003.62 By 2020, the Convention had a total of some 85 contracting states. Unfortunately, some that had ratified—such as Guatemala, Cambodia and Vietnam—failed to fully implement the required procedures and safeguards and were subsequently suspended. In its Preamble the Convention states that—‘intercountry adoption may offer the advantage of a permanent home to a child for whom a suitable family cannot be found in his or her State of origin’—thus tacitly acknowledging the principle that family based care (even if provided in a different country) is to be preferred to care in an orphanage or similar residential setting. It declares in Article 1 that its objectives are threefold: (a) To establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his fundamental rights as recognised in international law; (b) To establish a system of co-operation amongst Contracting States to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children; and (c) To secure the recognition in Contracting States of adoptions made in accordance with the Convention. 59 See,

http://www.hcch.net/e/status/adoshte.html. being: the Convention on the Civil Aspects of International Child Abduction 1980; the Hague Convention on Intercountry Adoption 1993; the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007; and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996. 61 For further details on implementation requirements see Hague Conference on Private International Law, Guide to Good Practice: The Implementation and Operation of the Hague Intercountry Adoption Convention (2008) at: https://assets.hcch.net/docs/bb168262-1696-4e7f-acf3-fbbd85504 af6.pdf. 62 As of December 2009, this Convention had received some 81 ratifications and accessions. Vietnam ratified in February 2012. 60 Those

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In Article 4(b) it provides that a Convention adoption ‘shall only take place if the competent authorities of the State of origin have determined after the possibilities for placement within the State of origin have been given due consideration that intercountry adoption is in the child’s best interests’. Arguably, this “due consideration” test is weak and indeterminate: it does not require any specific steps, within a stated timescale, before deciding on an intercountry placement. Nonetheless, signatory countries undertake not to transfer a child unless both the sending and receiving parties can do so in full accord with Treaty requirements and either can veto a proposed transfer if not so assured. The adoption may take place in either the sending or receiving country. The Convention gives effect to these principles through various provisions. Promoting In-country Child Care The Hague Convention recognises and addresses the obligation to promote measures that enable children to remain in their country and, further, in its preamble it urges every country to “take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin”. This message is reinforced by Article 4(b) which promotes the development of professional adoption services in ‘donor’ countries i.e. countries which for reasons of poverty and/or social instability are allowing children to be adopted by non-nationals. This constitutes a significant moral stand. The ‘child rescue’ approach, with its attendant dislocation for human relationships and cultural identity, is not to be the preferred means of safeguarding welfare interests either domestically or internationally. Priority is to be given to retaining a child in need within his or her family and social context of origin. Where consensually based retention is not feasible then foster care services should be provided which would permit a child to be placed as close as possible, in terms of geography and relationships, to his or her family/culture/community of origin. Resort to adoption should occur only when these options are not possible and then preference should again be given to maintaining the child within the cultural norms of his or her family of origin. The Convention views intercountry adoption as the final step in a continuum, to be taken when all others have been tried, when all the professional filters are in place and the adoption process is regulated to ensure that welfare interests are safeguarded. This approach very much echoes that embodied in Article 21(b) of the U.N. Convention. Broad Application to Different Types of Adoption The Hague Convention, Article 2(1), explains that the Convention applies when ‘a child habitually resident in one Contracting State (“the State of origin”) has been, is being, or is to be moved to another Contracting State (“the receiving State”) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the ‘State of origin’. In 2018, the Hague Conference on Private International Law issued a ‘Guidance note on habitual residence and the scope of the 1993

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Hague Convention’63 explaining the legal interpretation of the concept ‘habitual residence’ and providing guidance as to its application in practice. It does not matter in which of the two countries the adoption takes place. It applies to both full and simple adoptions and provides for the automatic recognition of all adoptions made in accordance with Convention requirements in any Contracting State. Its broad application ensures that the Convention should eventually regulate the majority of intercountry adoptions. A Framework for Regulating Standards This Convention provides a framework of minimum standards for regulating intercountry adoption. In its Preamble the Convention declares that a Convention compliant country must ‘prevent the abduction, the sale of, or traffic in children’ (and eliminate various associated abuses such as bribery, coercion, falsification of documents and use of unqualified intermediaries).64 It requires receiving countries to establish ‘ accredited bodies’, which must be non-profit agencies, to carry out related duties; these ‘accredited bodies’ will most usually be approved adoption agencies though ‘independent adoptions’ remain permissible. However, the Convention stops short of prohibiting non-agency adoptions: prospective adopters remain free to make their own private independent adoption arrangements; though these are not encouraged and are restricted.65 It also requires that a system of co-operation be established between Contracting States to ensure protection for the children involved. Hague signatory States are required under Article 8 to take “all appropriate measures to prevent improper financial gain in connection with an adoption and to deter all practices contrary to the objects of the Convention.” Where unauthorised payments have been made the Convention permits the annulment of an adoption on the grounds that this constitutes a breach of public policy. The Convention also establishes a series of safeguards to ensure, for example, that: • • • •

free and informed consent is sought from and given by birth parents and the child; that consent is not induced by bribery; that the views of the child, where feasible, have been sought; that the adoptive parents have received such counselling as necessary and are suitable persons to adopt; and • that the child’s cultural heritage will be preserved. 63 ‘Habitual Residence and Scope of the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption’ (a revised version of Preliminary Document No 4 on ‘Globalisation and international mobility: habitual residence and the scope of the 1993 Convention’) at: https://assets.hcch.net/docs/12255707-4d23-4f90-a819-5e759d0d7245.pdf. 64 A prohibition given effect in the 2002 Act by sections 83 and 92–97. 65 The Report of the Hague’s Special Commission on the Practical Operation of the Convention in 2005 recommended that member countries actively discourage direct contacts between prospective adoptive parents and authorities in the child’s country of origin until authorized to do so by those authorities.

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5.6.1.2

189

The Hague Convention: Principles

The Preamble to the Hague Convention explicitly states that it is to be read in conjunction with the U.N. Convention on the Rights of the Child (UN CRC).66 The 1993 Convention, as Duncan has pointed out, provides a “set of minimum standards and procedures, which may be supplemented by additional safeguards thought appropriate or necessary by individual states”.67 It is underpinned by principles, sometimes explicitly stated sometimes not, that are intended to guide international practice. The Welfare Interests of the Child Are Paramount in Adoption Law and Practice (See, Also, UN CRC) This clear statement, intended to guide the decisions of all bodies involved in the adoption process, usefully reinforces the firming-up of the paramountcy principle in recent ECtHR case law. Intercountry Adoption Is Only Justified After In-country Placement Options Have Been Eliminated This principle is expressed in the Preamble and in Article 4(b). Adoption Is a Service for Children, Rather than for an Adult Seeking to Acquire a Child (See, Also, UN CRC) This principle recognises that no person has an automatic right to adopt a child. Children Requiring Adoptive Placements Are Entitled to Know and Have Access to Information About Their Family Background and Cultural Heritage and Maintain or Develop Cultural Identity (See, Also, UN CRC) This principle recognises that due regard must be given to a child’s ethnic, religious, cultural and linguistic background when considering adoption. It also recognises that intercountry adoption must respect the child’s fundamental rights which include the foregoing. Birth Parent/s Have an Entitlement to Make Decisions About Their Child’s Future Care (See, Also, UN CRC) This principle recognises that both parents are entitled to make decisions about their child, including consenting to the child’s adoption and participating in the selection of approved prospective adopters. Article 4(b) provides that a Convention adoption ‘shall only take place if the competent authorities of the State of origin have determined, after the possibilities of placement within the State of origin have been given due consideration, that intercountry adoption is in the child’s best interests’.

66 The

Preamble also refers to its links with the 1986 U.N. Declaration.

67 See, Duncan, W. ‘Regulating Intercountry Adoption—an International Perspective’, in Bainham,

A., Pearl, D.S. and Pickford, R. (eds) Frontiers of Family Law (2nd ed), John Wiley and Sons, 1995 at p. 51.

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The Child Is Entitled to Be Involved in Decision-Making (See, Also, UN CRC; Article 12) This principle recognises that on issues relating to his or her upbringing, the child’s views must be sought, must be taken into consideration and may be determinative depending upon their maturity. Parties Are Entitled to Negotiate Mutually Agreed Adoption Arrangements (Not Explicitly Stated) This principle recognises that parties to an adoption are, with mutual agreement, entitled to participate in ongoing information exchange and/or contact after an adoption order is made. The child’s views must be sought and must be taken into account. Adoption Should Safeguard and Promote the Welfare Interests of the Child Throughout His or Her Life (Not Explicitly Stated) This principle recognises the lifelong nature of adoption and the need to ensure that the interests of the adopted person are always given priority over those of other parties. An Adoption Authority Should ‘Promote the Development of Adoption Counselling and Post-adoption Services’ (Article 9) This principle requires, under Article 9C, the accreditation of bodies established to provide adoption services. The responsibilities in relation to such bodies are addressed in subsequent Articles. (i) Article 10 Accreditation shall be granted to and properly maintained by bodies demonstrating their competence to carry out the tasks with which they may be entrusted. (ii) Article 11 An accredited body shall— (a) pursue only non-profit objectives according to such conditions and within such limits as may be established by the competent authorities of the State accreditation; (b) be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption; and (c) be subject to supervision by competent authorities of that State as to its composition, operation and financial situation. (iii) Article 12 A body accredited in one Contracting State may act in another Contracting State only if the competent authorities of both States have authorised it to do so.

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(iv) Article 22 1. The functions of a Central Authority under this Chapter may be performed by public authorities or by bodies accredited under Chapter III, to the extent permitted by the law of its State. 2. Any Contracting State may declare to the depositary of the Convention that the functions of the Central Authority under Articles 15–21 may be performed in that State, to the extent permitted by the law and subject to the supervision of the competent authorities of that State, also by bodies or persons who— (a) meet the requirements of integrity, professional competence, experience and accountability of that State; and (b) are qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.

5.6.2 The Hague Convention: Administrative Bodies By operating through a system of national Central Authorities, the Hague Convention reinforces the UN Convention on the Rights of the Child (Art. 21) and seeks to ensure that the adoption process functions in the best interests of the child, with respect for his or her fundamental rights.

5.6.2.1

Role of a Central Authority

The Hague Convention requires a Central Authority to be established to serve as a country’s primary contact in any adoption process. This body must conduct several checks to ensure that a child is eligible for adoption, including: verifying the propriety of the adoption under the laws of both countries; making a reasonable effort to facilitate a domestic adoption instead; and agreeing to use only certified adoption agencies.

5.6.2.2

An ‘Accredited Body’

The Convention requires ICAs to be managed by an ‘accredited body’ or privately but, in either case, to be subject to oversight by relevant national government departments and by the Central Authorities. For most purposes the term refers to a registered adoption agency. The report of the Special Rapporteur is particularly critical of the lax supervision of the role played by adoption agencies, whether or not accredited, and of the dangers that arise when such agencies compete to identify and secure adoptable children.68 It emphasises that “it is the joint responsibility of countries of origin and receiving countries to regulate the number of adoption accredited bodies 68 Special

Rapporteur report, A/HRC/34/55, op cit at paras 74–77.

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wanting to engage in intercountry adoptions, as a means of limiting the number of adoptions to the number of legally adoptable children”.69

5.6.3 The Hague Convention: Procedures The process for acquiring a foreign child for adoption under the Hague Convention can be briefly outlined.

5.6.3.1

Prospective Adopter/s

The person/s wishing to adopt must make application to the designated authority in the country where they are habitually resident. The Hague Convention, Article 5(a),(b), requires that they “have been counselled as may be necessary” and this involves attending a preparatory training course. Subsequently, it will assign a professional social worker to undertake an assessment of the applicant/s eligibility and suitability to adopt and to compile a ‘home study’ report on their family background and a personal history for submission to the agency’s Adoption Panel. The approved report will then be forwarded to the relevant authority in the country with an available child.

5.6.3.2

Sending Country

On receipt of the ‘home study’ report and other documentation attesting to the eligibility and suitability of the applicants, the appropriate authorities in the sending country will then make a preliminary determination as to whether or not the proposed placement is in the best interests of a particular child. In so doing the authorities are required, under Article 29 of the Convention, to give due consideration to the child’s ethnic, religious and cultural background. There are five primary elements that must be satisfied for a child to meet Convention requirements: 1. The child is under the age of 16 or under the age of 18 and is a sibling of a child who has been or will be adopted by the same adoptive parents; 2. The child will be adopted by a married couple jointly or by an unmarried approved adopter of at least 25 years of age, habitually resident in the receiving country; 3. The Central Authority of the child’s country of origin has determined that the child is eligible for intercountry adoption and has proposed an adoption placement which has been accepted, and the child has not yet been adopted or been placed in the custody of the prospective adoptive parents; 4. The child’s birth parents (or parent, if the child has a sole or surviving parent), or other legal custodian, individuals, or entities whose consent is necessary for adoption have 69 Ibid.

at para 76.

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freely given their written, irrevocable consent to the termination of their legal relationship with the child and to the child’s emigration and adoption; and 5. If the child’s last legal custodians were two living birth parents who signed the irrevocable consent to adoption, those parents must be incapable of providing proper care for the child.

A report on the child is then sent to the authorities in the receiving country together with evidence testifying to the above that all necessary consents have been obtained and the reasons for its ‘best interests’ determination. Article 16(2) provides for the withholding of identifying information regarding the child’s birth parent/s where the authorities deem this to be necessary. In response, the Central Authority of the receiving country sends its counterpart an Article 5/17 letter stating that the applicants are suitable and eligible to adopt, that the child appears eligible to enter and reside permanently in the receiving country. This allows the court to grant a full and final adoption or custody order.

5.6.3.3

Transfer of Child

When all administrative requirements have been satisfied, and the authorities in the receiving country determine that the adoption was completed in accordance with the laws of the child’s country of origin and with Convention requirements, and there are no apparent visa difficulties, then the authorities will issue either a Hague Adoption Certificate or Hague Custody Certificate, and an immigrant visa for the child. Article 17 of the Convention allows the child to be ‘entrusted’ (rather than placed) by the authorities in the sending country into the care of the prospective adopters. The responsibility for ensuring that the prospective adopters accept the transfer of the child rests with the authorities of the sending rather than the receiving country. Both sets of authorities, however, must agree to the proposed adoption and under Article 17(c) either may withhold consent if not satisfied that all legal requirements have been met.

5.6.4 The Hague Convention: Outcomes Article 4(b) provides that a Convention adoption ‘shall only take place if the competent authorities of the State of origin have determined after the possibilities for placement within the State of origin have been given due consideration that intercountry adoption is in the child’s best interests’.

5.6.4.1

Adoption Order

The adoption order may be made in either the sending or receiving country. The sending country bears responsibility for producing in court evidence that:

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intercountry adoption is in the child’s best interests; all necessary consents have been obtained; the prospective adopters satisfy eligibility and suitability criteria; and the child is or will be authorised to enter and remain in the receiving country.

5.6.4.2

Interim Adoption Order

Increasingly, some Hague compliant countries such as Thailand are choosing to proceed by allowing the adopters to return home with their child under the authority of an interim adoption order. Thereafter, on return of six satisfactory consecutive monthly reports by the appropriate authority in the receiving country, the adoption order is automatically finalised.

5.6.5 The Hague Convention Adoption Process: Legal Effects Article 26(1) of Hague states that a Convention compliant adoption order will terminate pre-adoption legal relationships (if permitted under the law of the sending country), vest parental responsibility in the adopter/s, establish a permanent legal parental relationship between adopter/s and the child and be recognised by the law of the receiving country and that of all other Convention countries. However, an adoption order made in a signatory state may be repudiated by any other signatory state if in breach of its public policy. In some Hague compliant sending countries, such as China, the practice is to finalise the adoption order before the child leaves the jurisdiction.

5.6.5.1

Full and Simple Adoptions

The subsequent legal standing of the birth parent/s in relation to the child will depend on whether the order made in the sending country is a ‘full’ or a ‘simple’ adoption order. In the former case the adoption order will then operate to wholly and permanently terminate the rights of the birth parent/s, whereas in the latter these rights are not completely extinguished. The statutory processes of some countries, such as the UK, have only ever provided for full adoption and while it provides automatic recognition for that form it also allows for conversion of simple adoptions.70 Article 26(2) of the Convention provides that, in the case of full adoptions, a Convention 70 In England and Wales recognition is provided under s 66 of the 2002 Act and conversion under s 88 ensures that all Convention adoptions are treated as full adoptions. In order to deal with the diversity of national interpretations encountered in the context of intercountry adoption, s 88 of the 2002 Act also provides a procedure whereby those simple adoptions that are not amenable to conversion, perhaps because evidence of full and informed parental consent is not available, are sifted out and an alternative order is made.

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compliant adoption order will have a legal effect equivalent to an order made under the statute law of the receiving country.

5.6.5.2

Access to Identifying Information

Under Article 30(1) of the Convention, the sending countries are required to preserve information relating to the identity of birth parent/s and in particular to the child’s personal and family history; this is to include information regarding the family’s medical history. However, Article 30(2) leaves the issue of access to that information to be determined by the laws of the receiving country. As Reinhardt points out, the ECtHR established in Godelli71 that “all European states (though perhaps not Belarus and the Vatican) MUST give access to adoption files whereas Art 30 leaves it to the laws of (the non-European, then) member states if they allow or not”72 (see, further, Sect. 4.4.7.4).

5.6.6 The Hague Convention: Limitations The fact remains that many sending countries do not have the resources to ensure that Hague Convention standards are in place; in particular the obligation to ensure the provision of proper consents, uncompromised by financial irregularities, is often unrealisable in practice. Moreover, many sending countries are not signatory nations. Whether an intercountry adoption is being arranged with a Hague signatory nation or with one that is not Hague compliant, the mediating adoption agency must be appropriately registered and licensed. Even when wholly Hague compliant, it has been argued that the resulting legal processes may not function in the best interests of the children concerned. Bartholet has challenged Hague on the grounds that “the law poses as protector of children but in the end functions as their enemy”.73 She cites the restrictive constraints requiring children to be orphans before their circumstances entitle them to be eligible for intercountry adoption and criticizes the Convention for disqualifying children “simply because they appear to have two living parents”.74 This view finds support in Hollinger’s observation that “it is becoming more rather than less difficult to accomplish an intercountry adoption under the Convention because some Convention countries—most notably the United States and Great Britain–are implementing the Convention in a restrictive manner, focusing more on the risks presented by 71 See,

Godelli v. Italy, Application No. 33783/09 (2013). to author (23.04.2020). 73 See, Bartholet, E., International Adoption: Current Status and Prospects, The Future of Children, Vol. 3, Issue 1, 1993 at p. 91. A view that lost validity in the U.S. with the introduction of the Intercountry Adoption Universal Accreditation Act 2012 on 14th July 2014. 74 Ibid. at p. 92. 72 Note

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adoption than on the benefits of securing permanent families for children bereft of sustainable family ties in their countries of origin”.75

5.6.6.1

Hague Signatory Nations

As of 2020, the list of 85 signatory states included some of the core ‘sending’ countries such as China, Cambodia and Guatemala. However, other countries that have long played a prominent role in contributing children for ICA, such as Russia and Korea, remain non-Hague compliant as do many with little ICA involvement like Japan, Nepal and Liberia.

5.6.7 Brussels II This Regulation in relation to family law cases with cross-border elements, came into effect on 1st August 2004. Its application to child care cases, custody and abduction— particularly as regards implementation of Articles 15, 55 and 56—can make it relevant to international adoption.

5.6.8 The Council of Europe A 2010 study by the Council of Europe Commissioner for Human Rights declared that76 : LGBT [lesbian, gay, bisexual and transgender persons] can adopt a child by one of three procedures. A single lesbian woman or gay man may apply to become an adoptive parent (single-parent adoption). Alternatively, a same-sex couple can adopt their partner’s biological or adopted children without terminating the first parent’s legal rights. These are so called ‘second-parent adoptions’ and give the child two legal guardians. Second-parent adoptions also protect the parents by giving both of them legally recognised parental status. The lack of second-parent adoption deprives the child and the non-biological parent of rights if the biological parent dies or in the case of divorce, separation, or other circumstances that would bar the parent from carrying out parental responsibilities. The child also has no right to inherit from the non biological parent. Moreover, at an everyday level, the lack of second-parent adoption rules out parental leave, which can be harmful financially for LGBT families. The third procedure is joint adoption of a child by a same sex couple. 75 See,

Hollinger, J.H., Chapter 11 ‘Intercountry Adoption: Legal Requirements and Practical Considerations’, in … 76 See, Recommendation CM/Rec (2010) 5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010. See, Council of Europe Commissioner for Human Rights, ‘Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe’, Council of Europe Publishing, June 2011.

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As of 2019, full joint adoption by same-sex couples was legal in seventeen European countries77 while another five permitted step-child adoption in which the registered partner could adopt the biological and, in some cases, the adopted child of his or her partner.78

5.6.9 The European Convention on the Adoption of Children (Revised) 2008 On 7 May 2008, the Committee of Ministers of the Council of Europe—on behalf of all member states and other signatory nations—adopted the revised European Convention on the Adoption of Children which was opened for signature on 27 November 2008 and entered into force on 1 September 2011. As of 2016 it had been ratified by eight States, namely Denmark, Finland, the Netherlands, Germany, Norway, Romania, Spain and Ukraine. As explained in Article 1: 1 This Convention applies to the adoption of a child who, at the time when the adopter applies to adopt him or her, has not attained the age of 18, is not and has not been married, is not in and has not entered into a registered partnership and has not reached majority. 2 This Convention covers only legal institutions of adoption which create a permanent child parent relationship.

The new provisions introduced by the convention include: • a requirement that the father’s consent be obtained in all cases, even when the child is born out of wedlock; • a requirement that the child’s consent be obtained if the child has sufficient understanding to give it; • a requirement that adoption be available to heterosexual unmarried couples who have entered into a registered partnership in States which recognise that institution, and to single applicants; • it also leaves States free to extend adoptions to homosexual couples and same sex-couples living together in a stable relationship; • a requirement that a better balance be struck between adopted children’s right to know their identity and the right of the biological parents to remain anonymous; and • a requirement that the minimum age of an adopter must be between 18 and 30, and the age difference between adopter and child should preferably be at least 16 years. 77 Andorra,

Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, the Netherlands. Norway, Portugal, Spain, Sweden and the United Kingdom. 78 Namely, Estonia, Italy, Slovenia, San Marino and Switzerland.

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This Convention extends formal recognition to some important principles. It specifies that the father’s consent is required in all cases, including when the child was born out of wedlock; and it explicitly covers adopters who are heterosexual unmarried couples in a registered partnership, as well as allowing States to extend adoptions to same sex-couples living together in a stable relationship. It requires that the minimum age of the adopter be set between 18 and 30, with a preferred age difference between adopter and child of at least 16 years. In addition, the European Convention not only reaffirms that the child’s consent is necessary if he or she has sufficient understanding to give it, specifying that consent must be required at a minimum as of age 14, but also introduces an obligation to consult with the child even where formal consent is not required, reflecting UN CRC Article 12 in a very explicit manner. It also places greater emphasis on the right of adopted children to know their identity as opposed to the right of the biological parents to remain anonymous. While the focus of this new Council of Europe Convention is clearly on national adoption, it does deal with “international adoption”, where the nationalities of the adopter and adoptee are different, although they may reside in the same country, as well as requests for information from one State Party to another. It is expected that “the Convention as a whole will exert an important influence on international adoptions. It will provide an effective complement to the Hague Convention of 1993, notably by ensuring that adoptions which are not covered by the Hague Convention of 1993 are regulated in such a manner as to comply with the underlying aims of any adoption”.79

5.6.10 The United Nations Guidelines for the Alternative Care of Children 2009 These Guidelines were intended to enhance UN CRC implementation “regarding the protection and well-being of children deprived of parental care or who are at risk of being so” (para 3). They start from the general principle that efforts should primarily be directed towards enabling children to remain in or return to the care of their parents.

5.6.10.1

Removal from Family of Origin

Removing a child from the care of the family should be seen as a measure of last resort and should, whenever possible, be temporary and for the shortest duration possible (para 14). Children temporarily or permanently deprived of their family environment, or in whose best interests cannot be allowed to remain in that environment, are entitled to special government protection and assistance (UN CRC, Article 20(1)). 79 Explanatory

Report, paragraph 19.

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5.6.10.2

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Alternative Care

Such alternative care can include “foster placement … adoption or, if necessary, placements in suitable institutions for the care of children” (UN CRC, Article 20(3)). Decisions regarding children in alternative care should have due regard for the importance of ensuring children a stable home and meeting their basic need for safe and continuous attachment to their care givers, with permanency generally being a key goal (para 12).

5.6.10.3

Family Based Care

In accordance with the predominant opinion of experts, alternative care for young children, especially those under the age of 3 years, should be provided in family based settings (para 22). “Where such arrangements are not possible or are not in the best interests of the child, efforts should be made to find a permanent family placement within a reasonable period” (para 44).

5.7 Contemporary Intercountry Adoption Practice From about the mid-1970s, stimulated in part by the social dislocation in southeast Asia following the Vietnam War, intercountry adoption became a global phenomenon. It by then also embraced sending countries in South America and such receiving countries as Canada, Australia, the U.S. and most of Western Europe. From the 1990s, it extended to include sending countries in Eastern Europe, most notably Romania. Although the Hague Convention now provides an international regulatory framework its capacity to standardise and raise levels of practice has been limited by the fact that a number of participants in intercountry adoption have been slow to be become signatories and some, like Russia, remain detached.

5.7.1 An Overview: The Trends The scale, spread and recent contraction of intercountry adoption is striking. By the early years of the twenty-first century, it was continuing to grow in terms of the numbers of children involved as the deficit in babies available for adoption in modern western societies became more marked.80

80 In 1998 the rate of intercountry adoption, expressed per million of the population in the receiving

country was: 116 in New Zealand; 52 in the Netherlands; 26 in Sweden; and 117 for Norway.

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The Numbers

From an annual level of some 20,000 in the 1980s, the global number of intercountry adoptions grew to 31,710 in 1998 and peaked at 45,288 in 2004.81 In 2003, as Cretney pointed out82 : Now over 30,000 children from 50 countries are adopted outside their countries of origin each year. The USA is the main receiving country, the main countries of origin are Russia, China, Vietnam, Columbia and Guatemala.83 Compared with the rest of Western Europe, the number of these adoptions in the U.K. is low; only approximately 300 orders are made each year.84

Between 2000 and 2010 an estimated 400,000 children were adopted by citizens of 27 countries, the highest number for any decade and over 950,000 adoptions were completed between 1948 and 2010.85 During this period, more than half of the children involved went to the U.S. although, proportionate to national population, such adoptions have made the biggest impact on countries such as Sweden. However, a decade after Cretney’s observation, the trajectory set by the initial established pattern of annual global increases seemed to sharply taper off. The peak period, 1998–2004, saw annual numbers soar from under 32,000 to over 45,000, although nationally the statistics varied considerably: in Spain there was a tripling of such adoptions; in Ireland they more than doubled; while Sweden, Norway, and France saw increases of less than 20%; but in Canada they fell.86 Thereafter, the global fall of some 35% to approximately 25,000 in 2012 has been well documented.87 In the U.S., which historically has been the recipient of about half the annual total of international adoptions, the decline was particularly steep—by more than 60%—to just over 9000 during that period. In fact the global decline is in good part attributable to the reduction in U.S., perhaps specifically to: the abrupt cessation of adoptions from Guatemala, which had contributed some 4000 children annually, and a sharp decline in those from Somalia; the gradually reduced flow from Korea; and the policy changes in Russia, the Ukraine and China that have had a particular impact upon U.S. 81 See, Selman, P., ‘The Rise and Fall of Intercountry Adoption in the 21st Century’, International Social Work, Vol. 52, Issue 5 (2009), pp. 575–594. 82 See, Cretney, S., Masson, J. and Bailey-Harris, R., Principles of Family Law, London, Thomson Sweet & Maxwell, 2003 at p. 832. The U.N. Population Division then estimated the flow at 40,000 annually. 83 Citing, Selman, P., ‘The demographic history of intercountry adoption’ in Selman, P., (ed.) Intercountry Adoption (2000). 84 Citing, Second Report to the UN Committee on the Rights of the Child by the UK (1999), para 7.23.8. 85 See, Selman, P., in Gibbons, J.L. and Rotabi, K.S. (eds), Intercountry Adoption: Policies, Practices, and Outcomes, Ashgate, 2012. 86 See, Selman, P., ‘Trends in International Adoption: Analysis of Data from 20 Receiving Countries, 1998–2004’, Journal of Population Research, Vol. 23, No 2, pp. 183–204. 87 See, Selman, P., in Gibbons, J.L. and Rotabi, K.S. (eds), op cit. Figures from International Social Services (ISS) show a global decline of nearly fifty per cent, from 43,142 adoptions in 2004 to 21,991 adoptions in 2011.

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intake88 (see, further, Chaps. 8, 17 and 20). Again there was considerable national variation, with some countries going against the global trend: numbers increased in Canada and Italy by 2009, and continued in Italy through 2010; they also rose in France. The reasons for this recent global dip in the number of intercountry adoptions have been the subject of much academic debate.89 For some, it is to an extent attributable to the economic recession: the expense involved has become a deterrent for many prospective applicants. Others view it as an indicator of the growing effectiveness of the Hague Convention in tightening standards and gradually filtering out those sending countries where standards are suspect; one aspect of which is the recognition now given to the term ‘orphan’. At the turn of the century, the United Nations Children’s Fund (UNICEF) and many other international organisations defined ‘orphan’ as a child who had lost one or both parents and was therefore available for intercountry adoption. Taking that approach, it was held that the estimated 132 million orphans in the world represented the number of children in need of adoption. However, in tribal cultures, or those with a strong tradition of relying on extended family, the vast majority of such ‘orphans’ continue to live with a family member and even if they are in orphanages many are regularly visited by family members. The view now taken is that such children are not in need of intercountry adoption. Improvements in methods of assisting conception and the growing use of surrogacy have also played their part. Then there is undoubtedly the role of policy and politics in curtailing the flow from long established primary sources. Probably, however, the most influential factor has been the growing prosperity of former sending countries such as Korea: these are now becoming more reliant upon their own emerging adoption resources; and no longer wish to be seen as unable to cope with domestic matters.

5.7.1.2

The Children

While intercountry adopters are often also motivated by altruism, it is hard to avoid recognising that it is the needs of infertile couples in western societies that is the primary driving force and this is firmly directed towards acquiring healthy children, preferably babies.90 In Finland and Italy, for example, respectively 80% and 90% of

88 In Russia, political reaction to a number of US disrupted placements (particularly the summary return of Artyom Savelyev, a 7-year-old adopted child, by his American adopter who sent him back alone by plane to Russia) resulted in a reduced flow of children from 5862 in 2004 to 749 in 2012. In China, changes in policy (rejection of single applicants and of obese applicants) resulted in a fall from 7038 in 2004 to 2696 in 2012. 89 See, generally, Gibbons, J.L. and Rotabi, K.S. (eds), Intercountry Adoption: Policies, Practices, and Outcomes, Ashgate, 2012. 90 Research shows that this is the case in nine out of ten such adoptions; see, for example, Hoksbergen. R, Juffer, F. and Waardenburg, B., Adopted Children at Home and at School, Lisse, Sweets and Zeitlinger (1987).

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persons who applied for an intercountry adoption had no biological children of their own. Historically, the age profile of the children adopted is very revealing: two-thirds were less than one year old and only 16% were aged 3 years or older. The correlation between countries with lower fertility rates and high rates of intercountry adoption applications in respect of children aged under-five is unmistakable. Anecdotal evidence would suggest that in the past very few children suffered from an obvious physical or mental disability though many were under-nourished, perhaps with a vitamin deficiency and some were eventually found to be HIV positive. Any discussion of children subject to ICA must bear in mind that the U.N. Convention on the Rights of the Child 1989 (Article 9, para 3 and Article 10, para 2) gives formal recognition to a presumption that a child’s welfare interests require the maintaining of relationships and regular contact with both their parents even if the latter are living apart and are in different countries.

5.7.1.3

Children in Need

Historically, the child subjects of ICA have not necessarily been those most in need. As has been observed91 : It appears that there are more children available for adoption than are currently being adopted. There are, for example, large numbers of double orphans who are not being adopted. In many sub-Saharan African countries, including the Central African Republic, Kenya, Malawi, Rwanda, Swaziland and the United Republic of Tanzania, double orphans make up 3 per cent or more of the under-18 population (there are currently some 7.7 million double orphans in Africa). Large proportions of double orphans are also found in several Asian countries and in some countries of the Caribbean.

This has given rise to concern that adopter choice, where racial congruity is a factor, rather than child need has often been the determinant of which children entered the intercountry adoption process. However, recent years have seen a definite change in the profile of children being channeled through ICA processes: they now tend to be older, have spent several years in institutional care, often with some degree of ‘special needs’ and may be in sibling groups. For some years the adoption of children with special needs has been a feature of sending EU countries: Poland, the Ukraine and Belarus have favoured making older children available. So, also, in China the proportion of children aged 5 or over rose from 1.4% in 2005 to 10.9% in 2009, and the male proportion rose from 5 to 26% over same period. Brazil now only sends children over the age of 5 years or, if younger, then with special needs or in sibling groups. It is noteworthy that in Korea, a far higher proportion of international adoptees are now classified as having special needs than children placed for domestic adoption and they tend to be older.92 91 Joint United Nations Programme on HIV/AIDS, UNICEF and USAID, 2004; as cited in Menozzi, C. and Mirkin, B., ‘Child Adoption: A Path to Parenthood?’ op cit. 92 See, Hayes, P. and ‘Openness in Korean Adoptions: From Family Line to Family Life’, Adoption Quarterly, 2008, pp. 53–78 at 54 and 71.

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5.7.2 Sending Countries Despite fluctuations in the pool of countries willing to make children available for intercountry adoption, since the 1980s the following have consistently been in the leading group: Korea, China, Russia, Ukraine and Vietnam. They have at times been joined by others such as Columbia, India and the Philippines, while countries struck by war or natural disaster such as Haiti, Sri Lanka and Ethiopia are also briefly prominent. As Selman has noted: in the 1980s, eight of the top 12 sending countries were in Latin America; by 2008, only three of these—Guatemala, Colombia, and Haiti—were in the top 12; but by 2009 and 2010, only Colombia and Haiti were.93 A number of former sending countries have now either stopped or drastically restricted their involvement. Bangladesh, for example, prohibited the practice while Peru will only permit it on the basis of bilateral agreements. Others such as Korea, Romania94 and India have developed laws to regulate it. Russia and China have recently placed more emphasis on domestic adoption and tightened restrictions for foreigners. China, for example, no longer permits single women to adopt, except in narrowly defined circumstances (nearly one-third of U.S. adoptive parents fell into this category in the late 1990s), and has banned applications from prospective adopters who are obese or of LGBT orientation. Russia terminated all ICAs to the US in 2012 allegedly due to concerns regarding the ill treatment of its children by US adopters (see, further, Sect. 20.2.2.1). It may well be that a further global decline is inevitable as South Korea, which had been one of main ICA suppliers, phases out its long-running program. Since the 1950s, it has sent more than 170,000 children abroad, mainly to the United States. Despite having one of the world’s fast-growing economies, and growing domestic concern about falling birth rates that are already among the world’s lowest, it continues to rank as a top sending county. Experts blame this on a strong cultural stigma against both unwed Korean women who give birth and couples who adopt. While poverty is clearly a factor in determining whether or not a nation is or continues to be a sending country, politics also plays a role (see, further, Sect. 22.2.3.2). As some countries withdraw others take their place. For example, Guatemala was a very significant source from 2003–08 but has now virtually ceased while Ethiopia is becoming increasingly prominent.

93 Selman, P., ‘Global Trends in International Adoption: 2001–2010’, Adoption Advocate, No 44, Feb 2012. 94 In 1993 Britain and Romania signed a bilateral agreement which had the effect of practically ending the sending of Romanian children to the U.K.

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5.7.3 Receiving Countries The U.S. has been a longstanding receiving country that in recent decades has absorbed 10,000 children a year through intercountry adoption while approximately the same number is distributed annually throughout northern and western Europe.95 Some European countries, notably those in Scandinavia, have developed a reliance on this form of adoption. Sweden and Holland receive approximately 2000 children annually as does Germany while 600 are adopted in Denmark. Norway with a population of 4.6 million has a very high rate of intercountry adoption with 724 such adoptions in 2005.96 In the U.K., with a population of 60.7 million, only 300 intercountry adoption applications are currently processed annually while perhaps a further 100 bypass formal procedures.97 The key factor that now determines the involvement of a receiving country in intercountry adoption is the lack of children domestically available to infertile couples. In all countries this is largely due to a sharp reduction in consensually relinquished children coupled with constraints on access to surrogacy and/or modern methods of fertility treatment. In some countries this position is exacerbated by the nonavailability of children through the public care system following judicial removal of parental rights. In Sweden and Denmark, for example, the non-availability of children through either consensual or compulsory means has led to a total reliance on intercountry adoption. Other countries, such as Ireland, are heavily though not exclusively dependent upon intercountry adoption for the same reasons. The U.S. and more recently the U.K. have increased their capacity to make children available from their public care systems but still need to resort to intercountry adoption to meet demand. The considerable difference between the U.S. and the U.K. as receiving nations is primarily due to independent and third-party adoption placements being permitted by the former but prohibited by the latter. Independent and third party adoptions are also allowed in countries such as Sweden, Germany, the Netherlands and France. The U.K., in common with Norway and Finland, restricts adoptions to those arranged by approved agencies. However, it has to be acknowledged that ICA is now fading in significance: demand is diminishing in all former receiving countries; the ICA phenomenon would seem to be tapering off.

95 See, generally, Doek, van Loon and Vlaardingerbroek (eds) Children on the Move, Martinus Nijhoff Publishers, 1996. Also, see, Selman, ‘The Demographic History of Intercountry Adoption’ in Selman (ed) Intercountry Adoption: Developments, Trends and Perspectives, British Agencies for Adoption and Fostering, London, 2000 at p. 16. See also conference papers entitled ‘Intercountry Adoption in the New Millennium: the ‘Quiet Migration’ Revisited’ delivered at the European Population Conference, Helsinki, Finland, 7–9 June 2001 and ‘Movement of Children for Intercountry Adoption: A Demographic Perspective’ delivered at 24th IUSSP General Population Conference, Salvador, Bahia, Brazil, 18–24 August 2001. 96 See, www.ssb.no/english. 97 Statistics cited in Triseliotis, J., Shireman, J. and Hundleby, M., Adoption Theory, Policy and Practice, Cassell, London, 1997 at p. 183.

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5.7.4 Some Issues in Contemporary Practice A slow developmental process has seen the 1993 Hague Convention evolve from the work of the Hague Conference on Private International Law that commenced with the Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoption 1965. It now provides a working framework for regulating intercountry adoption practice. Most of the serious issues that continue to threaten standards in modern practice arise from the fact that a significant proportion of all annual intercountry adoptions are still not subject to this Convention.

5.7.4.1

Bilateral Agreements

The Hague Convention does not apply to many countries currently participating in intercountry adoption. Some developed nations have an established practice of independently negotiating bilateral agreements to govern the flow of children from developing countries (Ireland and the U.S., for example, have a number of contractual agreements with South American countries). Some function with both: applying Hague with particular countries while conducting parallel bilateral agreements with others. It is hard to square this with a commitment to Hague standards and it must serve to undermine the international effort to build a principled framework for regulating this form of adoption.

5.7.4.2

The Availability of Children

The Hague Convention puts in place safeguards for ensuring that proper consents are provided in respect of children made available for intercountry adoption: every effort must be made to trace birth parents and to obtain their consent, including that of a birth father.98 This allows for checks to be made as to a child’s status as orphaned, abandoned, consensually relinquished or in respect of whom parental rights have been judicially terminated. It enables counselling services to be offered to birth parents to ensure that consents are informed and freely given; such services are not available in some sending countries such as Brazil. It requires professional medical checks and a proper standard of health and social care to be provided following parental relinquishment; as is the case in countries such as Thailand. It also requires that a child is only made available after a professional assessment has concluded that other

98 Subject to situations where the laws of a country such as Russia, prohibits the tracing of birth parents after a local adoption. See, Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646.

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preferred options are not feasible and that intercountry adoption is compatible with that child’s welfare interests. Orphaned or Abandoned The fact is that not all sending countries are Convention compliant and there is research evidence to show that many overseas adoptions involve children who are neither orphaned nor abandoned. In many cases the parental consent requirement is avoided by the claim that the parent/s cannot be found and there is little an authority in a receiving country can then do to satisfy itself that every reasonable effort has been made to locate them.99 In other cases, where the consent of a ‘guardian’ rather than a parent is acceptable, the authorities in some sending countries offer the consent of an institution. Both types of response, not untypical of practice in countries such as Russia, Guatemala and Brazil, would breach the consent requirements of the Hague Convention. Kafala In July 2014, Canada abruptly terminated adoptions from Pakistan. It cited as the cause a perceived conflict between the legal status of kafala in Pakistan and statutory adoption in Canada. This initiative is curious as adoptions from Pakistan to Canada have proceeded unchallenged for decades and many other western countries with laws similar to Canada—such as Australia, the UK and the U.S.—have not found the kafala issue to be insurmountable and continue to process adoptions from Pakistan. Given that this Islamic practice is common in most of the world’s 49 Muslim-majority countries, the issue of whether or not the status of kafala can be transformed into adoption by the child’s new parents, thereby allowing the child (more often than not) to be reared in a Christian family, is one that may well need closer examination (see, also, Sect. 16.3.1.3). The Welfare and Wishes of the Children In Pini and Others v. Romania100 the ECtHR dealt with the attempted intercountry adoptions of two Romanian girls by the applicants, who were two couples from Italy. In 2000, the applicants had obtained orders in a Romanian court for the adoption of the children when they were 9 years old and in the care of a private institution in Romania. This state-approved institution provided a home and education for orphaned and abandoned children. The children were declared to have been abandoned by a County Court in Romania, one in 1994 at the age of 3, the other in 1998 when she was aged 7. In 2000, a District Court in Romania made the adoption orders and ordered that the children’s birth certificates be amended to reflect this decision. The Romanian Adoptions Board appealed the court decision but it was dismissed as being out of time. The institution where the girls lived refused to abide by the adoption orders and did not allow for the transfer of the girls to their adoptive parents. The institution 99 See,

for example, ‘All God’s Children, International’. EHRR 275.

100 [2004]

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made a number of applications to court to prevent the enforcement of the adoption orders and also applied unsuccessfully to have the adoptions set aside. In 2002, both children issued proceedings in the District Court in Romania to have the adoption orders revoked on the ground that they did not know their adoptive parents and did not want to leave their native country and the institution. One of the girls was unsuccessful in doing so. The District Court found that it was not in her interests for the order to be revoked. Despite this decision, the girl did not move to Italy with her adoptive parents and remained in Romania. The other girl was successful in having her adoption revoked. The court decided that she was receiving a good education and living in good conditions at the institution. The court also noted that she had not formed any emotional ties with her adoptive parents. This decision was not appealed and it became final. The adoptive parents claimed that the refusal by the Romanian authorities to enforce the final adoption decisions breached Article 8 of the Convention. The ECtHR stated that the Convention does not guarantee a right to adopt and that the aim of adoption is to provide a child with family. In this case, a conflict of interests existed between the wishes of the children and the applicants. The ECtHR noted the deplorable manner in which the adoption proceedings took place and the lack of contact between the applicants and the children prior to the adoptions. The absence of psychological support for the children was also noted. The ECtHR decided that the wishes of the children and their best interests carried significant weight. Therefore, Article 8 had not been breached as Romania was entitled to consider that the children’s interests took precedence over those of the adoptive parents. However the ECtHR held that there had been a violation by Romania of Article 6.1 of the Convention for failing, for more than 3 years, to take effective measures to comply with the final and enforceable judicial decisions. The prospect of the adoptive relationships developing in the future was seriously jeopardised since the children were still opposed to the adoptions and the move to Italy at the time of the decision of the ECtHR when they were both 13 years of age. It is to be noted that the Parliamentary Assembly of the Council of Europe issued a recommendation on international adoption to the Committee of Ministers of the Council requiring that measures be taken to ensure that the rights of children are protected.101 It emphasises that the purpose of international adoption as a child care option of last resort is to provide children with parents. It denounces the abuses which have sometimes become part of intercountry adoption and calls on Member States to ratify the Hague Convention. Equity of Access to Adoption There are several million children in Africa who are orphaned and/or abandoned as a consequence of the ravages of AIDS and other diseases but for whom the opportunity of intercountry adoption is rarely available. It would seem that the politics of adoption works in favour of the young and healthy, perhaps accompanied by a racial preference 101 Recommendation

1443 (2000) International Adoption: Respecting Children’s Rights, adopted by the Parliamentary Assembly of the Council of Europe on 26 January 2000. See www.coe.int.

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component, but to the relative disadvantage of all others, particularly those who require more care.

5.7.4.3

Matching Children with Adopters

Matching the needs of a particular child with the attributes of available adopters is the key component to a successful adoption: no other single factor in the adoption process is as important. This is more problematic in relation to intercountry adoption. In the U.K. and other receiving countries a careful professional assessment of applicants is conducted by registered adoption agencies. The assessment of a child’s particular needs, however, and the matching process undertaken in the light of those needs, is left entirely to authorities in the sending country; excepting any broad conditions attached to the adopters approval by the authorities of the sending country. Whether or not Convention compliant, most sending countries have relatively weak social and health care infrastructures and are simply unable to dedicate the resources necessary to provide a matching service equivalent to that typically employed by U.K. Adoption Panels. Racial Congruity The matching of adopter and child on the basis of racial congruity is a fraught moral issue and one with political connotations that to some are intensely important. As adopter choice determines whether or not child and adopter share the same racial characteristics, the latter’s motivation is crucial but whatever that may be it is the implications for the child that should always be the overriding consideration. Where adopter choice is for racial congruity this perhaps gives the child one less obstacle to overcome when trying to find a personal sense of cultural identity. It may also, of course, indicate some level of discriminatory attitude held by the adopter which may later prove obstructive for an adoptee needing encouragement and support as he or she begins to explore their origins. Where the choice results in a mixed race adoption this can be more problematic. If the adopter can offer a similarly mixed race extended family and community environment, where differences are accepted and valued, then the child may be readily assimilated into a stimulating milieu of relationships that are likely to prove conducive and helpful to any need to explore matters of cultural identity. Without that context, there is a strong likelihood of the child being troubled by the fact of difference and a risk of their having a conflicted approach to building a personal sense of identity. A further and more worrying variation of that theme arises where the choice is made for reasons of demonstrating adopter commitment to a lifestyle or set of values that the child thereafter has to represent. Those, for example, who are motivated to embrace a mixed race, multi-cultural ethic which relishes diversity and equality may, perhaps unwittingly, deny their child the space to get in touch with their cultural origins and form an authentic and independent identity. Again, adopter choice may be determined by personal politics: a wish to reach out to a particular country, perhaps

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in the aftermath of war or natural disaster or because of sympathy with or aversion to a political regime. This too may impose a values framework which could cloud the upbringing of their child and lead to difficulties in facilitating, objectively and encouragingly, the growth of the child’s links with their culture of origin. While there can be no prescriptive rules in this area, when considering adopter motivation, the prospects for the child to develop and sustain an authentic personal identity and cultural affiliation must guide decision-making.

5.7.4.4

Commercially Driven Independent Agencies

Extreme poverty is most often the root cause of parents in third world countries making their children available for adoption. In that context the involvement of forprofit agencies in arranging adoption placements with couples from western societies carries the risk that this will invalidate the Convention requirement that consents be fully informed and be given free from either duress or financial inducement. Independent commercially driven agencies, often based in the U.S.,102 are frequently involved in facilitating the adoption placements of children from countries such as Guatemala, elsewhere in South America and Russia. When the resulting adoption applications come before the courts, for example in the U.K.,103 the standards of practice of such agencies are sometimes found to be in breach of Convention requirements. Overseas adoptions bypass the Convention and for that reason attract the involvement of independent commercially driven agencies. It is important that the standards of protection, afforded to all parties under the Convention, are also applied to overseas adoptions.

5.7.4.5

Financial Impropriety by Intermediaries

The profit motive is not confined to the involvement of independent commercial agencies. Anecdotal evidence, drawn from the experience of many adopters dealing with officials in sending countries, testifies to the considerable amount in fees that frequently have to be paid to a range of other intermediaries. Lawyers, doctors, officials in orphanages and/or in emigration, for example, may or may not require

102 See,

for example, Flintshire County Council v. K [2001] 2 FLR 476, the ‘internet twins’ case. Note that since April 2008, when the U.S. ratified the Hague Convention, all such agencies are now required to be registered. 103 See, for example, Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam), [2003] 1 FLR 1111 which concerned a white British couple who had adopted a baby from a black American couple after paying approximately £17,500 to an American adoption agency. The home study reports, prepared by a British social worker, were criticised by the court as “deeply flawed and inadequate documents” and it also referred to “the evil and exploitive trade” of buying and selling babies.

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payment. The U.N. has drawn attention to the problems surrounding many intercountry adoptions in which children are taken from poor families in undeveloped countries and given to parents in developed countries.

5.7.4.6

Trafficking

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children—an addition to the UN Convention against Transnational Organized Crime—took effect in 2003. Article 3(a) defines child trafficking as the “recruitment, transportation, transfer, harboring and/or receipt” of a child for the purpose of exploitation. While it would wrong to tarnish international adoption in general with complicity in such conduct, it be naïve to ignore the probability of some degree of overlap between ICA and trafficking. Indeed, the synergy between sending countries—specifically, Korea, China and Russia—designating their available children as “orphans” (when the status of many, if not most, would not satisfy a western legal definition of that term) and receiving countries—specifically the US—requiring ICA children to be orphans, is at least suspect and may be indicative of a blurring of morality on the boundaries between ICA and trafficking. As expressed in the report submitted by M. Juan Miguel Petit, Special Rapporteur, in 2003104 : Regrettably, in many cases, the emphasis has changed from the desire to provide a needy child with a home, to that of providing a needy parent with a child. As a result, a whole industry has grown, generating millions of dollars of revenues each year, seeking babies for adoption and charging prospective parents enormous fees to process paperwork.

Evidence of such industry has surfaced in Nigeria, where Ojedokun and Atoi have drawn attention to criminal syndicates working with government officials to operate ‘baby factories’ which buy and sell babies105 Allegations of the procreation and sale of babies to order have also been raised in relation to some Inuit in Canada.106 Such practices, needless to say, call into question the efficacy of the institutional framework designed to regulate the child adoption process. In relation to any particular intercountry adoption, as well as for practice in a sending country, to avoid any suggestion of complicit involvement in ‘trafficking’ it is clearly important 104 See,

‘Rights of the Child’ in U.N. Concern About the Commercial Sale of Children For Adoption, Commission on Human Rights (59th session), 6th Jan. 2003, at Item 13, p. 25 (at: http://www.originscanada.org/adoption-human-rights/united-nations/united-nations-com mercial-sale-adoption/). That ICA practices should be considered such as to fall within the brief of the Special Rapporteur, on the sale of children, child prostitution and child pornography in accordance with Commission on Human Rights resolution 2002/92 is revealing. 105 See, Ojedokun, U.A. and Atoi, E.N., ‘Baby Factory Syndicates: An Emerging Child Adoption Racket in Nigeria’, African Journal for the Psychological Study of Social Issues, Vol. 19 (2016), pp. 47–59. 106 See, Roos, H., ‘The Service and Capacity Review for Victims of Sexual Exploitation and Human Trafficking in Nunavut’, Ottawa, 2014. See, further, at: http://news.nationalpost.com/2014/ 01/30/start-waking-up-report-warns-of-inuit-child-selling-cites-anecdotal-evidence-of-abuse-tra fficking/.

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that all costs are predictable, transparent and reasonable—as required by the Hague Convention.

5.7.4.7

Effects of Intercountry Adoption on Children

In terms of outcomes for the children involved, this process exacerbates some of the more typical effects of adoption. Identity The most immediate effect of such an adoption is the removal of a child from their family, community and culture of origin. Despite the best intentions of all concerned, perhaps not always genuinely shared by the adopters and towards which the child concerned may be at least ambivalent, it often proves difficult to keep alive the links between the child and his or her cultural heritage. The practice whereby some sending countries, for example Korea, facilitate the setting up of culture-specific support groups for adoptees within receiving countries and also on a transnational basis, may well be an appropriate initiative for all participant countries to emulate. There are issues here about the nature and weight of the obligation resting on sending and receiving countries, on the adopters and on the professionals concerned, as to how they preserve and promote an adoptee’s sense of identity and cultural affiliation. Issues also surround the question of where the onus rests to monitor and enforce, if necessary, this obligation. Then there is the deeper issue of whether it is in fact necessary? Bartholet has argued that it is not: “the current tendency to glorify group identity and to emphasise the importance of ethnic and cultural roots combines with nationalism to make international adoption newly suspect in this country as well as the world at large”.107 Such a view may owe a lot to being taken from an American ‘melting pot’ perspective (see, also, Sect. 23.6.1.2). Citizenship Some nations have traditionally treated intercountry adoption with suspicion on the grounds that it may be used to circumvent immigration rules and procedures; a suspicion that has not entirely been laid to rest. Currently, the U.K. and other countries such as the U.S. and Sweden grant the adopted child residency status but not citizenship while others such as New Zealand grant citizenship. The legal complexities were explored in the Irish case Attorney General v. Dowse108 (see, further, Sect. 7.11.4). These inconsistencies need to be replaced by a standardised rule under the aegis of the Hague Convention.109 107 See, Bartholet, E., International Adoption: Current Status and Prospects, The Future of Children,

Vol. 3, Issue 1, 1993 at p. 100. IEHC 64, [2007] 1 ILRM 81. 109 In its 2005 Draft Guide to Good Practice under the Hague Convention, the Hague Conference on Private International Law points out that States should avoid a position where a child would be left stateless, in the context of traditional intercountry adoption where sending and receiving 108 [2006]

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5.7.4.8

5 Intercountry Adoption and the Hague Convention

Post-adoption Support Services

Most intercountry adoptions unfold satisfactorily for child and adopters. Some, however, do not. A number of children transferred to receiving countries are subsequently admitted to care, a few are severely abused and some even die at the hands of couples who had embarked on this process with the best of intentions (see, further, Sect. 8.2.2.1). The attraction that some find in this route to adoption, its essentially private nature carrying a promise of minimum involvement with public services, is arguably an area of weakness that leaves both child and adopter unnecessarily exposed to risk. Experience shows that intercountry adoptions carry their own specific vulnerabilities in addition to the risks inherent in all adoptions. The current practice in countries such as Russia to require annual post-adoption reports from receiving countries for three years is clearly sensible.110 It is important that all intercountry and overseas adoptions are subject to a structured, two-year minimum programme of monitoring and specialist support services and an optional ongoing programme thereafter. The organisation ChildONEurope, a lobbying group that advocates for post-adoption support services, provides useful information regarding the type of services required.111

5.7.4.9

Access to Identifying Information

The fact that laws recognising rights and facilitating access to information exist in some receiving countries, such as the U.K., is of no advantage in the context of intercountry adoption if they don’t exist in the sending country. Sending countries have established different practices in relation to making information available to the parties concerned in intercountry/overseas adoptions. In some the characteristics of ‘closed’ adoption, as traditionally practiced in western nations, are very much in evidence. Frequently, all arrangements are man aged by designated intermediaries and in some countries, for example Thailand and India, no contact pre or post adoption is permitted between the parties. Other countries, such as Bulgaria, destroy birth records after an adoption order is made. The Hague Convention requirement, that birth and family of origin information is

countries are involved. It draws attention to Article 7(1) of the 1989 United Nations Convention on the Rights of the Child which directs that the child shall have the right to acquire a nationality. See, further at www.hcch.net/index_en.php. Also, see, Duncan, W., ‘Nationality and the Protection of Children Across Frontiers: The Case of Intercountry Adoption’ paper delivered at the 3rd European Conference on Nationality-Nationality and the Child, Strasbourg, 11–12 October 2004. 110 Several countries now require foreign prospective parents, or the social services of the adopting country, to make regular reports on the child’s progress to its country of origin. This “follow-up period” is 10 years in the case of Sri Lanka, four for Peru, three for Paraguay and two for Romania. 111 See, further, at: http://www.childoneurope.org/issues/adoption/post_adoption_seminar/post-ado ption_def2.pdf.

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maintained by the authorities in sending countries, should clearly prevail in all overseas adoptions and rights of access to such information should be as outlined in the legislative provisions relating to in-country adoptions of the receiving country.

5.8 Conclusion Intercountry adoption, once a rapid growth phenomenon, is now like its domestic third party counterpart in steep decline. However, although there has been a sharp tapering off in volume in recent years,112 as ICA still involves some 50 countries and 30,000 children on an annual basis it is clearly of the utmost importance that the related framework of law, policy and practice also evolves to safeguard the welfare interests of so many children. A correlation between falling rates of domestic adoption and ICA and rising rates of surrogacy tourism and successful IVF is unmistakable. This is likely to bring further complications to ICA which, together with the consequences of mass migration from Islamic countries, may well require the excellent principles of the Hague Convention to be reinforced by regulatory authority if the rights of those involved are to be adequately protected. The assurance offered by Article 1 of Hague that the Convention will provide “safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law” remains largely aspirational: many such adoptions still take place outside the Convention framework; an increasing number, for example, are falling into the gap framed by statutory and Shari’a laws; and the Convention lacks the international regulatory powers necessary to enforce its “safeguards”. In some ways, the politics of adoption are more apparent when viewed in an intercountry context. There is considerable evidence that a political dimension exists in the flow of children between countries (see, further, Sect. 23.5.3). Also, some of the provisions of the Hague Convention seem to highlight the significance of domestic political choices. In particular, Article 4(b) states that intercountry adoption may be considered as an alternative means of providing for a child’s care but only after all other options for retaining the child within his or her country of origin have been exhausted. This principle clearly places an obligation on both potential sending and receiving countries to invest the resources necessary to retain a child within his or her country of origin as a first option: it is a principle equally applicable to domestic child care adoptions. There are real differences between countries, such as the U.K. and Sweden, in this regard. The difference is ultimately attributable to a very different political choice made on the issue as to whether government resources should be invested in providing safe care for children within their families of origin or in providing alternative permanency arrangements through non-consensual adoption. 112 Globally ICAs fell by 35% between 2004 and 2009. Spain and France are among the countries that

have seen a significant drop in the adoption of foreign babies: falling by 48% and 14%, respectively, from 2004 to 2010.

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The Hague Convention, as important as it undoubtedly is, provides only a framework of minimum standards for regulating intercountry adoption. Even if fully implemented by all the countries engaged in this practice it would still fall short of ensuring that optimal standards prevail in all instances for all the children concerned. Currently, however, the main problem with the Hague Convention is that not all relevant countries subscribe to it. This in itself presents a significant political challenge if adoption is to safeguard and promote the welfare interests of those children who enter the process.

Part III

Contemporary Law, Policy and Practice in a Common Law Context

This part considers the law currently governing the adoption process in six common law countries: England and Wales; Ireland; the USA; Canada; Australia; and New Zealand. From early beginnings as the basis of the legal system in England, the common law travelled with the armies of that nation, across the globe and over several centuries, to provide the foundations for civil society throughout what became the British Empire. Those former British colonies, including the five countries which together with England and Wales are examined in this part, have shared a broadly similar approach when it comes to defining and determining adoption matters. Because common law rests essentially upon an organic body of judicially forged principles and case precedents, which continue to evolve over time, so the jurisdictions concerned are able to draw by analogy from each other’s experience. This permits a degree of shared jurisprudence, at least where an alignment of principles with case facts and family law context allows for a transfer of case precedent—albeit non-binding—between jurisdictions. Mostly, however, the law is jurisdiction specific: the adoption process, the stages within it, the mediating bodies, the decision-makers, the alternative options available, the outcome and subsequent services can all vary considerably. Jurisdictional differences have emerged. This has been largely due to judicial discretion being curtailed by legislation, but most recently the policy change initiated by the Trump administration may well set the USA in an important new direction with implications for other jurisdictions. Common law is judge-made law, and this has steadily given way to legislature made law. Adjudication, the anvil upon which the common law was forged, has been largely reduced to a fact-finding exercise. The judiciary are increasingly limited in their capacity to interpret the law. Instead, as long required of their civil code counterparts, they now largely find themselves confined more to implementation. But not always, as illustrated by the rulings of Munby P. on adoption policy in England, the judiciary retain the capacity to challenge government. The development of adoption law, policy and practice in the common law world has become jurisdictionally differentiated by the varying constraints of statute law. In adoption, as in family law more generally, context is everything and that context is shaped by the legislature’s response to pressures from the prevailing culture in

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each jurisdiction. However, this is counterbalanced by the fact that the currency of key principles such as the welfare of the child and an array of family law doctrines retain their value as they are now incorporated into adoption legislation and serve to moderate interpretation across jurisdictions.

Chapter 6

England and Wales

6.1 Introduction The Adoption and Children Act 2002, the product of a decade and more of debate,1 repealed the Adoption Act 1976 and significantly amended the Children Act 1989. It marked an important change in the government’s policy towards adoption, particularly in the use made of it by local authorities in respect of looked after children, and followed very closely the same process of change in the U.S.2 The 2002 Act, fully implemented in December 2005, provided a strong lead for the adoption law reviews in Scotland3 and Northern Ireland.4 It, together with the Children Act 2004, the Children and Adoption Act 2006 and the Children and Families Act 2014, now consolidate policy, principles and law for adoption and child care practice in England & Wales.5 This, the first of the jurisdiction specific chapters, begins with background information on the social and legal contexts and the emerging characteristics of adoption. It continues by identifying the significant trends in modern adoption practice, considering the main elements of current policy and outlining the prevailing legislative 1 In 1996, a draft Adoption Bill was published for consultation and the Social Services Inspectorate

also published a national report on inspections of local council adoption services entitled For Children’s Sake. See, further, Harris-Short, S., ‘New Legislation: The Adoption and Children Bill— A Fast Track to Failure?’, Child and Family Law Quarterly, Vol 13, No 4, 2001, pp. 405l–430. 2 See, Sargent, S., ‘Adoption and Looked After Children: a comparison of legal initiatives in the U.K. and the USA’, Adoption & Fostering, BAAF, vol. 27, no. 2, 2003, at pp. 44–52. 3 See, the Adoption and Children (Scotland) Act 2007 which repeals the bulk of the Adoption (Scotland) Act 1978. 4 The public consultation process, launched in 2006, concluded with publication of the report Adopting the Future, which paved the way for the Adoption and Children (NI) Bill 2017. 5 It is important to note that since the introduction of devolved administration the law in Wales has increasingly diverged from that in England, at least in terms of legislation and guidance. While the primary provisions are the same, the detailed implementation is devolved. For further information those interested should refer to the Welsh Government website. The author acknowledges with thanks, advice received from Gillian Douglas on this matter (note to author, 22.10.2014). © Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_6

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framework. The template of legal functions (see, Chap. 3) is then applied to reveal the actual mechanics of the process in action. The chapter concludes with a summary of the more distinctive characteristics of the adoption process in England & Wales.

6.2 Background In 1968 the number of adoption orders reached a high of 25,000 and, thereafter, annual trends developed a fairly consistent downward trajectory except for a short and slight period of reversal. In 2012 there were 5206 adoptions in England and Wales a 9.8% increase on 2011, when there were 4740, representing the largest increase in the past 15 years.6 However, by 2019 the number of adoptions had fallen to 5016, against a backdrop of increasing numbers of children in care. During October to December 2019, 58% of all adoption orders were issued to mixed-sex couples, 14% to same-sex couples, 7% to step-parents and 21% to sole applicants.7 These figures, however, hide the extent of change in the use of adoption in this jurisdiction over the last two or three decades.

6.2.1 The Social Context Giving Rise to Adoption In England & Wales, as with all other western nations, the annual decrease in adoptions can be traced to changes in the same cluster of variables within the social and legal context. Poverty is one such variable: there is now a considerable body of research available to testify to both the enduring level of poverty in the U.K. and the strength of the correlation between poverty and family failure.8 There can be little doubt that there would be fewer children coming into public care and on into adoption if the coping capacity of vulnerable families was reinforced by adequate resources.9

6 In England alone, 4835 adoptions were entered in the Adopted Children Register in 2012, compared

with 4410 in 2011. See, Office of National Statistics (n.b. data for adoptions by court order are only available from this source since 1998). In the 12 month period ending March 2014, 5050 children were placed for adoption. 7 See, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_d ata/file/874822/FCSQ_October_to_December_final.pdf. 8 See, for example, the 2014 statement by Oxfam that the “U.K. is the world’s six largest economy, yet 1 in 5 of the U.K. population live below our official poverty line”. See, further, at: https://pol icy-practice.oxfam.org.uk/our-work/poverty-in-the-uk. 9 See, Doughty, J., ‘Myths and Misunderstanding in Adoption Law and Policy’, Child & Family Law Quarterly, 27(4), (2015), pp. 331–353 at p. 336.

6.2 Background

6.2.1.1

219

Marriage and Family Breakdown

In England and Wales marriages fell from a peak of 480,285 in 1972 to 24,4710 in 2005, and in 2009 dipped further to 231,490, the lowest marriage rate since 1862. At the same time the divorce rate in England and Wales climbed to become the highest in Europe: although it fell back to 132,562 in 2006; and then to 117,558 in 2011; and down to 91,961 in 2018.10 Although by 2015 the divorce rate was still approximately 42% of all marriages, it has been falling ever since and is currently at its lowest since 1973.11 A 2012 report published by the Organisation for Economic Co-operation and Development (OECD) provided stark evidence of family breakdown by revealing that just 68.9% of children live with both parents in the U.K., well below the average of 84%. The traditional legal concept of ‘family’ has been further challenged by the introduction of the Civil Partnership Act 2004 and by the Marriage (Same Sex Couples) Act 2013. By 2018 there were 232,000 cohabiting same sex couples, compared with 152,000 in 2015, of whom more than a quarter were married.12 A development that generated an interest in adoption as a means of acquiring a family.13

6.2.1.2

Unmarried Mothers

Traditionally, adoption in this jurisdiction was founded as a legal process for addressing what was then perceived as the social problem of unmarried mothers. By 2012, the percentage of adopted children born outside marriage had increased to 85%, up from 83% in 2011. To a large extent this simply reflected the fact that almost half of all births were outside marriage. Currently, the rate of births outside marriage is approximately 38.8% of all live births compared with a European average of 26%.14

10 See, further, at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/att achment_data/file/789792/FCSQ_October_to_December_2018_-_final.pdf. 11 See, https://www.crispandco.com/site/divorce-statistics/. The number of divorces throughout the EU is on the increase, with an average of 1.8 divorces for every 1000 people, but in Britain and in Finland the rate is 2.8 divorces per 1000, compared with just 0.6 per 1000 in Luxembourg. See, further, at: https://www.dailymail.co.uk/news/article-52829/Britain-highest-divorce-rate-EU. html#ixzz2zjXOPKDG. 12 See, further, at: https://data.gov.uk/search?filters%5Bformat%5D=HTML&q=same-sex+mar riages 13 Ibid. 14 The figures vary widely between member states—ranging from just 4% of births being outside marriage in Greece to 55% in Sweden. See, further, at: https://www.dailymail.co.uk/news/article-52829/Britain-highest-divorce-rate-EU.html#ixzz2z jeMawlD.

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6 England and Wales

Abortion

The introduction of legal abortion under the Abortion Act 1967, which continues to be the governing legislation,15 and the ensuing annual increase in abortions was accompanied by a rapid decline in the number of children available for adoption, an inverse correlation that has continued ever since. The upward trend in annual abortion figures shows little sign of easing. In 2006, for example, a total 193700 of abortions were carried out in respect of women resident in England and Wales, compared with 186,400 in 2005, a rise of 3.9%.16 By 2018, however, the total had risen to 205295.17

6.2.1.4

Assisted Reproduction Services

The availability of fertility treatment (AID, GIFT etc.) has been an important factor in reducing reliance on adoption. In particular, the Human Fertilisation and Embryology Act 1990 and the consequent improvement in treatment methods have offered an alternative route for childless couples hoping to start a family. As has been pointed out “IVF used to be around 7% successful and now it’s around 30%. So, as a choice, adoption is competing with lots of other ways of having children”.18 Surrogacy In England and Wales, surrogacy agreements are neither prohibited nor are they legally enforceable.19 While it does not regulate surrogacy, this jurisdiction does have some legal provisions governing the type of arrangements that can be made: under the Surrogacy Arrangements Act 1985, commercial surrogacy is prohibited and it is illegal to recruit mothers or to advertise or negotiate contracts on a commercial basis; under the Human Fertilisation and Embryology Act 2008, s 54, surrogacy agreements are unenforceable but there is legal provision enabling the transfer of parental status as married or unmarried commissioning parents (including single persons20 and same sex couples) can obtain a ‘parental order’, providing them with parental rights and responsibilities, with the birth mother’s consent. Arguably, however, the law favours surrogate mothers and creates insecurity for adopting couples by allowing surrogate mothers to choose to keep the child after birth. 15 Modified by the Human Embryology and Human Fertilisation Act 1990 which reduced the legal time limit for abortions from 28 to 24 weeks. 16 Ibid. There were also 7400 abortions for non-residents carried out in hospitals and clinics in England and Wales in 2006 (7900 in 2005). 17 See, further, at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/att achment_data/file/808556/Abortion_Statistics__England_and_Wales_2018__1_ 18 See, further, at: https://www.theguardian.com/society/2018/nov/03/england-adoption-rates-fal ling-as-ivf-improves-says-senior-official 19 See, Law Commission consultation paper ‘Building Families Through Surrogacy: a new law’, (2019), at: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/upl oads/2019/06/Surrogacy-consultation-paper.pdf 20 The Human Fertilisation and Embryology Act 2008, s 54(A).

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Surrogacy is legislatively defined and largely confined to serve altruistic intentions: surrogates may only claim “reasonable expenses” (which were capped at around £12,000, but the courts will now usually approve almost any level of expenses)21 ; and the commissioning parent\s must acquire a Parental Order within six months of the child’s birth22 in order to be vested with parental responsibility. The courts do examine surrogacy arrangements to ensure that they are altruistic in nature and that no improper payments have been made.23 Many cases result from U.K. commissioning parents having made arrangements with overseas surrogates.24 By 2013, more than 850 surrogate births in the U.K. had been facilitated by the voluntary organisation Childlessness Overcome Through Surrogacy (COTS) founded in 1988.25 It is estimated that the number of parental orders made following a surrogate birth tripled from 121 in 2011 to 368 in 2018.26

6.2.1.5

Increase of Children in Public Care

More so than elsewhere in Europe, the public child care system in England and Wales contributes significantly to annual adoptions. Judicial pronouncements in recent years, on the relative merits of care for a child within that system by adopters as opposed to the family of origin, have impacted on the annual numbers being adopted.27 As noted earlier (see, Chaps. 1 and 2) the law in this jurisdiction had drawn a clear line between entry to the public child care system and entry to the adoption process; a line rigorously policed by the judiciary. Consequently, the system was steadily clogging up.28 By the late 1970s the number of children in care in England had reached 100,000 (7.5 per 1000) with increasing numbers of older children, disabled children and sibling groups being taken into care.29

21 The author acknowledges with thanks, advice received from Gillian Douglas on this matter (note to author, 22.10.2014). 22 See, Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam). 23 See, also, the Brazier Committee report which pointed out that any argument that payment is for the surrogacy and not for the baby is specious. 24 See, for example, Re C 2013, Re IJ (a child) 2011, Re L (a minor) 2010 and Re X and Y (foreign surrogacy) 2008. 25 See, www.surrogacy.org.uk/. 26 See, https://surrogacyuk.org/2018/12/31/surrogacy-survey-2018-results/. 27 Particularly Re B-S (Children) [2013] EWCA Civ 1146, per Sir James Munby. 28 It should be noted that, perhaps counter-intuitively, research findings suggest that for many children the experience of being in care has worked. See, for example, the report, ‘Looked after children and Offending: Reducing Risk and Promoting Resilience’, published in 2012 by The Adolescent and Childrens’ Trust (TACT) and the Centre for Research on the Child and Family at the University of East Anglia. This concluded that “going into care can prove effective and extremely beneficial in helping a young person deal with prior abuse and can protect against involvement in crime”. 29 See, Office for National Statistics at https://www.statistics.gov.uk.

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In March 2013 there were 68,110 looked after children, but by March 2019 the child care population had risen to 78,150,30 a 4% increase on the previous year. Of that total: 58,260 (75%) were subject to care orders; 14130 (18%) were children looked after under voluntary agreements under s 20 of Children’s Act 1989; and 5450 (7%) had placement orders. Foster Care In March 2019 of the 78,150 children in the public care system some 56,160 were in foster care: (19%) were being fostered by a relative or friend; but only (1%) were in placements where the carer was also an approved adopter (fostering for adoption) or where they were subject to concurrent planning.31 It has been estimated that four out of every five children who come into care in England are fostered.32 There has been some evidence that, paradoxically, local authorities channel more funds towards supporting children in care than they do to prevent that necessity arising. In R & L v. Manchester City Council,33 for example, the practice of a local authority was found to be in breach of Article 14 of the ECHR because it discriminated between payments for family based care and foster care to the disadvantage of the former. The Children and Families Act 2014, s 98, introduced a “staying put arrangement” which allowed young adults and their foster parents to choose to continue living arrangements established while the former was a ‘looked after child’, until that person’s 21st birthday.34 Residential Care In recent years, following a succession of inquiries concerning abuse and neglect in children’s homes,35 there has been a sharp fall in the number of residential care places available for looked after children. From a position where most children in care were accommodated in such homes, now only few tend to be so and they are often children with complex needs, likely to be there on a long-term basis and therefore unlikely to be considered for adoption. In March 2013, some 6000 looked after children (9 per cent) were in secure units, children’s homes and hostels; a proportion that increased to 12% (9,500) by March 2019.

30 See, https://corambaaf.org.uk/fostering-adoption/looked-after-children-adoption-fostering-statis tics/statistics-england. 31 See, https://corambaaf.org.uk/fostering-adoption/looked-after-children-adoption-fostering-statis tics/statistics-england 32 See, Fostering Network at https://www.fostering.net/. In 2011, 12% of adoptions from care were in favour of foster parents. 33 [2001] 1 FLR 43. 34 See, further, at: https://www.legislation.gov.uk/ukpga/2014/6/enacted. 35 See, for example, Waterhouse, Lost in Care: Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974, the Stationery Office, London, 2000.

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Family or Community Approximately 7% of the 78,150 children in the public care system in March 2019 were placed with their parents (in addition to 13% in a foster placement with a relative or a friend); and 3% (2,190) had been placed for adoption.

6.2.2 Resulting Trends in Types of Adoption Adoption in this jurisdiction, which has never accommodated either adults nor the ‘simple’ form, has changed from being in the main part of private family law to instead being more of a public service. The proportion of children entering the adoption process whose parents are married and/or whose availability has been determined by coercive intervention of the State has grown to become a particularly distinctive characteristic. The children are also older than formerly: those aged under 12 months fell from 4.8% of all adoptions in 1998 to 2.2% in 2012. In 2018, 70% of those adopted were aged between 1 and 4 years but their average age was 3.75 years. Other such characteristics include the consistently high proportion (though not as high as it has been) of parental applications and the growing proportion of foster parent applicants.

6.2.2.1

Third Party Adoptions

The proportion of looked after children voluntarily relinquished for adoption has steadily decreased. Almost all adoptions from care are now resisted by parents (if only tactically, to place it on the record for the child’s future reference) who were not consenting to the state enforced adoption of their children. Other third party adoptions are largely in respect of the relatively small but growing number of children subject to intercountry proceedings. Domestic Since the late 1970s, the traditional form of domestic adoption has become inverted as typically a mother, jointly with her new partner, opted to adopt her own children. Taken together with the high level of child care adoptions, the result has been that domestic adoption rates in this jurisdiction have remained among the highest in Europe.36 Child Care From the outset, statutory law in this jurisdiction has at least contemplated the possibility of non-consensual adoption on the grounds of parental failure. As stated in the 1926 Act, s 2(3): 36 See,

further, Fenton-Glynn, C., ‘Adoption Without Consent: Update 2016’, at: https://www.eur oparl.europa.eu/RegData/etudes/STUD/2016/556940/IPOL_STU(2016)556940_EN.pdf.

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if satisfied that the [parent] has abandoned or deserted the infant or cannot be found or is incapable of giving such consent or ... either has persistently neglected or refused to contribute to [the support of the infant] or is a person whose consent ought, in the opinion of the court and in all the circumstances of the case, to be dispensed with.

In recent years, however, and in keeping with long-established policy in the U.S., there has been a firm and clear government objective to accelerate the number and pace of adoptions on such grounds. The permanency care option of adoption is viewed as preferable to allowing children to ‘drift’ in the care system. However, for this option to succeed a range of readily accessible support services must be in place.37 The 2002 Act has to be viewed in the context of the family support provisions in the 1989 Act. Preventing children identified as ‘in need’ from becoming children at risk of ‘significant harm’ is a central plank in the policy of the latter. Its frequent failure to achieve this in practice is evidenced by the increase in children coming into public care; some 72% of whom do so due to parental neglect or abuse.38 In part, the rationale for the 2002 Act was to address the consequences of failure in the preventative intervention mandated by the 1989 Act and thereby bring domestic law into closer alignment with the requirement in Article 8(2) of the ECHR that state authorities respect the right to integrity of “family life”. As indicated by Hale LJ in Re W and B; Re W ,39 this right can be viewed as presenting an opportunity and a challenge to authorities requiring them to think positively rather than negatively when considering adoption for a child in care. Arguably, the need for a new adoption law to expedite the transfer from public care to private care, of those children requiring a permanent home following failed parenting, would not have been so pressing if a greater investment had been made in family support services; an argument that has parallels with the intercountry adoption dynamic. The percentage of children exiting the care system by way of adoption increased from 11% in 2011 to 17% in 2015.40 However, that phase of annual increases ended in 2016 when 4690 were adopted, representing a decrease of 12% on the high of 5360 in 2015.41 By 2019, of the 78,150 children in the public care system, 3570 exited by way of adoption compared with 5360 in 2015; many being adopted by their foster parents with assistance from the ‘Adoption Passport’ scheme which provides 2 years of post-adoption financial support. There have been indications of judicial ambivalence in regard to child care adoptions. The governing principle had been that a child’s welfare is generally best served 37 See, Rushton, A., ‘Outcomes of adoption from public care: research and practice issues’, Advances in Psychiatric Treatment, Vol 13, pp. 305–311, 2007. 38 See, https://www.spectator.co.uk/article/the-waiting-game. 39 [2001] EWCA Civ 757, [2001] 2 FLR 582. See, also, Re C and B (children) (care order; future harm) [2000] 2 FCR 614 at 625. 40 Note that in 2013 adoption from care became the target of investment through the use of ‘social impact bonds’ aimed at funding adoption services for hard-to-place children. 41 See, further, at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 556331/SFR41_2016_Text.pdf.

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by being a member of its birth family unless there are compelling reasons to suggest otherwise and this was affirmed in the House of Lords decision in Re B (a Child). Munby P42 on behalf of the Court of Appeal, has spoken of “real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption”. In reference to the government proposed (and subsequently implemented) 26 week deadline for adoption in child care cases,43 he warned that “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”.44 A sentiment subsequently endorsed by Pauffley J in Re NL 45 when he advised that “justice must never be sacrificed upon the altar of speed”. Caution was also urged by the British Association of Social Workers in its 2018 report ‘The role of the social worker in adoption—ethics and human rights: An Enquiry’ which likened the current use of adoption by local authorities to a “runaway train” which had become impossible for individual social workers to stop.46 However, as will be seen later in this chapter, judicial opinion has begun to lean towards favouring non-consensual adoption from the care system, particularly for younger children, and has warned against any presumption preferencing care in the family of origin. Children with Special Needs Whereas previously it could have been anticipated that children admitted to care with a degree of physical or learning impairment would have remained in the system this is no longer necessarily the case. The new levels of investment of ongoing support services and financial allowances, together with careful preparation for placement, has facilitated the successful adoption of a small number of children with special needs. Professional expertise, more relevant support services and the new realities of the adoption ‘marketplace’ have encouraged third party applicants to widen their expectations as regards the challenges and satisfactions of parenting. However, the proportion of children adopted from care in England that have a disability has never exceeded 1 per cent (averaging 20–30 per year).47 Intercountry England & Wales, arguably, initiated the phenomenon now known as ‘intercountry adoption’ when, in the latter half of the nineteenth century and continuing well into the first half of the 20th, it shipped tens of thousands of children to its colonies overseas. 42 [2013]

UKSC 33. public announcement by the Minister of Education in July 2013, of new government policy ‘Improving the adoption system and services for looked-after children’ which includes the intention to introduce “legislation that will make sure court hearings on children in care last no longer than 26 weeks,” at: https://www.gov.uk/government/policies/improving-the-adoption-system-andservices-for-looked-after-children. 44 See, Re B-S (Children) [2013] EWCA Civ 1146, per Munby LJ at para 49. 45 [2014] EWHC 270 (Fam) at para 40. 46 See, further, at: https://www.basw.co.uk/media/news/2018/jan/basw-unveils-adoption-enquiryreport-and-key-findings. 47 See, Department for Children, Schools and Families, National Statistics, September 2007. 43 See,

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It has been estimated that Canada alone received some 80,000 in the space of 50 years to be informally adopted into Canadian families (see, further, Sect. 9.2.2.1).48 The policy of allowing citizens in other countries to bear the cost of caring for children— whose birth parents were unavailable or unwilling to do so—was first formulated in this country. Between 2004 and 2014, the record shows a total of 2484 intercountry adoptions but it also reveals a sharp drop in annual numbers from a high of 369 in 2005 to a low of 68 in 2014, sinking yet lower to 57 in 2015,49 resulting in this jurisdiction currently having the lowest per capita rate of ICA in the developed western world. This is partly due to a government policy of channeling prospective adopters towards children in the domestic public care system. The number of such adoptions is considerably lower than in other jurisdictions studied (e.g. in 2004 there were only 326 while the comparable numbers for France and the U.S. were 4079 and 22,884, respectively) and is falling. Interestingly, Hayes found no evidence in the U.K. of an inverse correlation between the rates of intercountry adoption and the rise and fall of domestic adoption numbers.50 Transracial Transracial adoption has always been controversial in this jurisdiction. A policy in its favour, implemented in the 1960s and 70s, was replaced in the following decades by one giving priority to ethnic matching. The Children and Families Act 2014 reversed the latter policy by removing a statutory requirement to take ethnicity into account when making adoption placements in order to expedite the adoption of the many children of ethnic minority background in public care for whom matching prospective adopters were unavailable. The ethnic and cultural background of children now being adopted differs considerably from the more typical white Caucasian adoptee of a few decades ago. The new diversity is as much a reflection of contemporary society as it is a natural consequence of intercountry adoption. However, as Barn and Kirton have pointed out, transracial adoption and ‘racial matching’ continue to invite fierce debate and discussion focusing on factors such as: “the ongoing disproportionate representation of minority ethnic children in the public care system; the ‘unavailability’ of suitable minority ethnic adoptive parents; concerns about adoptees’ racial/cultural identity; and the ‘suitability’ of white parents to raise racially competent children”.51 In this jurisdiction the Children and Families Act 2014, s 3, repealed the requirement in s 1(5) of the Adoption and Children Act 2002 that “due consideration be given to religious persuasion, racial origin and cultural and linguistic background” when placing a child for adoption. The significance of this repeal was demonstrated in the 48 See, for example, Bean, P. and Melville, J., Lost Children of the Empire, London, Unwin Hyman Ltd., 1989. 49 Selman, P. (2016) Global Statistics for Intercountry Adoption: Receiving States and States of origin 2004–2015, at: https://assets.hcch.net/docs/3bead31e-6234-44ae-9f4e-2352b190ca21.pdf. 50 Ibid. at p 4. 51 See, Barn, R. and Kirton, D., ‘Transracial Adoption in Britain: Politics, Ideology and Reality’, Adoption & Fostering, vol. 36 no. 3–4, 2012, pp. 25–37.

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Manders case52 when the court discounted the importance that the local authority and adoption agency had placed on race and culture when matching prospective parents and children. The case concerned a British born couple of Sikh Indian heritage who had been informed in 2016 by a Berkshire based adoption agency that although they would be suitable adoptive parents, they could not make an adoption application because white couples would be given priority as only white children were available, and advised to consider adopting from India. In 2019, the court found that they should not have been barred from applying to join the approved adopters register because of where their parents were born and held the council’s action to be “direct discrimination on the grounds of race”.

6.2.2.2

First Party Adoptions

Adoptions by a grandparent, brother, sister, uncle or aunt—whether of full-blood or half-bloodl—have increased in recent years. This is probably due to local authority policy of looking first to family members—in accordance with the Children Act 1989, s 22C—as potential adopters for a child in public care. As, most often, these are a legal consequence of reformed family units, they are directly affected by the prevailing rates of divorce etc. The formalities of the adoption process are relaxed considerably in respect of applications made by relatives of the child; in particular such applicants are not required to submit to assessment by an adoption agency. Step-Parents For many years step-parent adoptions have constituted the largest category of adopters in England & Wales, despite the long-standing concern that they had the effect of legally guillotining the interests of all members of one side of the child’s family in maintaining relationships with that child.53 These are now steadily decreasing both in number and as a proportion of annual orders. However, despite repeated legislative attempts to provide alternatives, step-parents continue to show a preference for adoption: the Children Act, s 8(1)(a), provides ‘child arrangements’ orders; the Adoption and Children Act 2002, s 52(2), permits sole applications from step-parents; the Children Act, s 8(1)(a), has since 2005 allowed a step-parent married to, or the civil partner of, a birth parent to apply for an order for a ‘parental responsibility’ order or may enter into a parental responsibility agreement, in respect of the latter’s child54 ; and under the Children Act 1989, s 14C(1) as inserted by s 115 of the Adoption and Children Act 2002, ‘special guardianship’ orders are now available.55 Further, in 2014, s 1(2A) was inserted into the 1989 Act to establish a presumption 52 See, 53 See,

Sandeep and Reena Mander v. RBWM Adoption Berkshire [2019], CO1RG 184. the Department of Health, Adoption Law Review: Consultation Document, 1992, at para

19.2. 54 See, for example, S (a child), Re (Rev 1) [2013] EWHC 1295 (Fam), [2013] All ER (D) 76 (Jun). 55 But note Re P (a Child) [2014] EWCA Civ 1174 on inappropriateness of special guardianship as an alternative to step-parent adoption (author thanks Brian Sloan for drawing this case to his attention; note to author, 07.07.2020).

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that the involvement of a birth parent in the life of the child concerned would further that child’s welfare. In effect this requires a court not to foreclose a birth parent’s involvement by making an adoption order unless in the particular circumstances there is a very good reason for doing so. However, in Re H (A Child) (Surrogacy Breakdown)56 the court found that the presumption did not apply to step-parents. In 1998, step-parents accounted for more than 50% of all orders made but by 2005 the proportion had fallen to 20%.57 Kinship A relative, for the purposes of adoption law, is defined as a grandparent, brother, sister, uncle or aunt, whether of full-blood or half-blood. While the proportion of kinship care is high, it is higher in the U.S. (25%) and even higher in Australia (40%). In 2016 the Court of Appeal cautioned that there is no right or presumption that a child should be brought up by their natural family.58

6.3 Overview of Principles, Policy and Law After a prolonged period of debate and formulating policy (see, further, Sect. 1.5), England & Wales now have in place a modern body of adoption legislation and a matching regulatory framework to address the needs of all parties engaged in domestic and international adoptions in its shrinking adoption process.

6.3.1 Adoption Principles and Policy The policy articulated in the Prime Minister’s Review59 was responsible for the decision to apply the National Standards to local authority adoption practice and for driving forward the new approach to child care adoption. This policy, which owed a great deal to a similar initiative launched earlier in the U.S. (see, further, Sect. 8.2.2.1), in effect demolished the principle of ‘partnership with parents’ that had been such a cornerstone of the 1989 Act. Another policy strand concerned the resolve to remove certain traditional legal presumptions such as the reasonableness of parental withholding of consent for adoption, the marginal relevance of unmarried fathers without parental responsibility, the favouring of married applicants and the rejection of the notion that an adoption order should be quite so absolute and unconditional as was formerly the case. 56 [2017]

EWCA Civ 1798.

57 See, Department for Constitutional Affairs, Judicial Statistics Annual Report 2005, London, May

2006, at p. 71. 58 Re W (A Child) [2016] EWCA Civ 793. 59 See, Department of Health, Consultation Report by the Performance and Innovation Unit, Adoption: Prime Minister’s Review, Cabinet Office, London, 2000.

6.3 Overview of Principles, Policy and Law

6.3.1.1

229

Principles

Aligning the principles of the 1989 and 2002 Acts succeeded in mainstreaming adoption into child care and protection policy and created a new platform for addressing the needs of children failed by their parents. Paramountcy In a policy change of fundamental importance to adoption law, the paramountcy principle has been embedded in s 1(2) of the 2002 Act to govern all aspects of the adoption process, including dispensing with parental consent. A bridge has thus been strategically placed to link that process with the child care system. A customised version of the welfare checklist in the 1989 Act has been embodied in the 2002 Act60 ; some items are deliberately calibrated across both statutes to ensure consistency of interpretation.61 Moreover, as has been judicially emphasised “the checklist demands consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family. Mere lip service to such matters is not enough”.62 The adoption specific items on this list include: • the likely lifelong effect on the child of becoming an adopted person; • his or her relationship with relatives and other significant individuals; • the ability and willingness of relatives, including birth parents or others to provide care; and • the value of any ongoing relationship the latter may have with the child. The judiciary have been at pains to stress that the statutory checklists in s 1(3) of the 1989 Act, in respect of a care order, and s 1(4) of the 2002 Act, in respect of placement and adoption orders must be considered in conjunction with Article 8 of the Convention when a court is determining whether or not the adoption order is in the best interests of a child despite the absence of parental consent. Proportionality The ‘principle of proportionality’, central to Article 8, is to be taken into account in adoption related decision-making. As noted, for example, by Wall J63 : Inevitably, however, every order made under Section 8 of the Children Order 1989 represents in some measure interference by a public authority (the court) in the right to respect for family life contended in Article 8. The court’s interference must, of course, be in accordance with the powers given to that court under the Children Act 1989 and be proportionate. Every application involves a court balancing the rights of the participants to the application 60 Section

1(4). example, provisions s 1(3)(a), (d) and (c) of the 1989 Act are replicated in s 1(4)(a), (d) and (e) respectively of the 2002 Act. 62 See, In the matter of N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, per Sir James Munby, President of the Family Division, at para 105. 63 Re H (Contact Order) [2002] 1 FLR 22 at 37. See also comments of Hale LJ in Re C & B (Care Order: Future Harm) [2001] 1 FLR 611, at paras. 33–34 and 620–621 and in Re O. (Supervision Order) [2001] 1 FLR 923 at paras. 24–28. 61 For

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(including the children who are the subject of it) and arriving at a result which is in the interest of those children…and proportionate to the legitimate aim being pursued.

Again, in SB v. A County Council; Re P,64 the Court of Appeal stressed that any placement or adoption order made without parental consent must be proportionate to the legitimate aim of protecting the welfare and interests of the child; only in exceptional circumstances could measures totally depriving a parent of family life with a child be justified. As Wall LJ noted in EH v. London Borough of Greenwich & Others65 “there is no more important or draconian decision than to part parent and child permanently by means of an adoption order”. Accordingly, the judge in that case at first instance “was required to balance each factor within the checklist in order to justify his conclusions and determine whether the final outcome was appropriate” but “because this analysis is entirely absent, his failure to mention the provisions of the Children Act and deal with each part of section 1(3) undermines his conclusions and his order”. Permanency Planning As implied, this principle requires the provision of a secure and consistent framework of care relationships sufficient to allow a child in care to optimise their potential for emotional, psychological and physical growth. Adoption is viewed by child care professionals as the gold standard of the permanency planning options available. Concurrent Placements This is a practice whereby a local authority, in order to reduce the number of placement changes, will commit to a rehabilitation programme designed to return a child to safe parental care, while also putting in place a parallel permanent placement plan.66 It relies upon foster parents chosen for their capacity to engage directly with the birth parents and facilitate the rehabilitation plan but who, in the event of that plan failing, are also approved and willing to adopt the children concerned. These two options will then be played out in tandem with emphasis given to rehabilitation but the fallback position of adoption is kept alive and preparations for utilising it are attended to constantly. In very many cases, where the rehabilitation option has demonstrably failed, children have then been successfully and relatively swiftly adopted by their carers.67 This approach avoids the traditional care career of serial placements and ‘drift’ in long-term foster care. Arguably, however, there is cause for some concern as to whether such a practice is wholly Convention compliant: specifically, there are grounds for considering that, by allowing alternative attachments to form over a considerable period, concurrent placements may in effect prejudice the welfare principle, reduce the likelihood of a return to parental care and pre-empt the 64 [2008]

EWCA Civ 535. EWCA Civ 344 at para 95. 66 See, for example, Wolfson, R., ‘Concurrent Planning: A Route to Earlier Permanence for Young Children’, Seen and Heard, Vol 23, Issue 2, 2012, pp. 46–58. 67 Re M’P-P (Children) [2015] EWCA Civ 584. Accelerated by provisions of the 2014 Act. 65 [2010]

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court’s decision-making, thereby possibly breaching Articles 6 and 868 (see, further, Sect. 4.4.7.2). Openness The probability of an adopted child retaining some degree of contact with his or her birth family has increased considerably in recent years. As has been officially noted69 : All adoption agencies involved birth families in ongoing contact arrangements to promote and maintain the child’s identity. For birth parents, this contact was usually through periodic exchanges of letters and photos.

The principle of ‘openness’ is now standard practice in this jurisdiction and extends to facilitating post-adoption access to identifying information. In fact approximately 90% of adopted children will now have some form of contact ranging from an exchange of letters to face-to-face engagement.70

6.3.1.2

Policy

As the twentieth century drew to a close it was apparent that the traditional functions of adoption were no longer aligned with contemporary family law pressures: its primary use had become one of repairing boundaries in the aftermath of family breakdown; while the principles governing child care and adoption had become increasingly conflicted since the introduction of the Children Act 1989, which established the paramountcy principle as the governing benchmark for decisions affecting a child in care but without application to decisions relating to adoption. Moreover this was a time when the failings of state care were becoming only too apparent. The effect of public child care scandals, combined with the expense of that care and the influence of the principle that family care is best, led to the outcomes research71 for looked after children which, together with attachment theory,72 suggested that once rehabilitation had been found to be impracticable then a local authority should institute permanency planning and that adoption rather than foster care was more likely to produce long-term beneficial outcomes for the children concerned. 68 Though

note YC v. the United Kingdom (2012) 55 EHRR 33.

69 See, the Commission for Social Care Inspection, Adoption: Messages from Inspections of Adoption

Agencies, London, 2006, para 2.8. for example, Logan, J. and Smith, C., ‘Direct Post-Adoption Contact: Experiences of Birth and Adoptive Families’, in Neil, E. and Howe, D. (eds), Contact in Adoption and Permanent Foster Care: Research, Theory and Practice, British Association of Adoption and Fostering, London, 2004. 71 The ‘outcomes research’, analysing and evaluating the care careers of looked after children, is comprised of many different reports compiled in the main from within the social work and allied professions. 72 See, Bowlby, J., Attachment and Loss, Hogarth Press, London, 1973. 70 See,

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By 2011 the annual number of children adopted from care was decreasing, the 3050 adopted in that year being the lowest since 2001, which prompted the government to publish an Adopters’ Charter setting out clear guidance for both adoption agencies and prospective adopters and called for “radical reform” of the family justice system. The resulting Action Plan,73 published in March 2012, outlined government plans for accelerating the process in England. In particular it identified the following aims: • legislation to reduce the number of adoptions delayed in order to achieve a perfect or near ethnic match between adopters and child; • require swifter use of the national Adoption Register in order to find the right adopters for a child wherever they might live; • encourage all local authorities to seek to place children with their potential adopters in anticipation of the court’s placement order; • radically speed up the adopter assessment process so that two months are spent in training and information gathering—a pre-qualification phasel—followed by 4 months of full assessment; • introduce a ‘fast-track’ process for those who have adopted before or who are foster carers wanting to adopt a child in their care; and • develop the concept of a ‘national Gateway to adoption’ as a consistent source of advice and information for those thinking about adoption. In March 2012 the government published ‘An Action Plan for Adoption: Tackling Delay’74 which included proposals to cut the time it takes to become an approved adopter to 6 months and set up a national gateway for adoption that would provide a first point of contact for anyone interested in adopting. In May 2012 the Department for Education published new Adoption Scorecards for England. These are updated annually and show, against three key indicators, how swiftly children in need of adoption are placed for adoption, in each local authority area. The scorecards allow local authorities and other adoption agencies to monitor and compare performance. In January 2013 the government published ‘Further Action on Adoption: Finding More Loving Homes’75 which set out proposals to attract adopters and to improve the support available to adoptive families. Further steps to promote adoption as the preferred option for children in care were taken in 2014. The Department of Education commissioned study of adoption outcomes, undertaken by researchers at Bristol University, was published with findings that included: the breakdown rate was no more than 3.2%; but that accessing child and adolescent mental health services was often inadequate.76 73 See,

Dept of Education, An Action Plan for Adoption: Tackling Delay, 2012. further, at: https://www.gov.uk/government/publications/an-action-plan-for-adoption-tac kling-delay. 75 See, further, at: https://www.gov.uk/government/publications/further-action-on-adoption-fin ding-more-loving-homes. 76 See, the Hadley Centre for Adoption and Foster Care Studies, ‘Beyond the Adoption Order: Challenges, Interventions and Adoption Disruption’, Bristol University, 2014. 74 See,

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Adoption Alternatives: Long-Term Fostering and Private Family Orders

Retention in long-term foster care, under the authority of a care order, was traditionally the accepted basis for ensuring a safe and permanent home environment for children in the public care system who could not be returned to their family of origin. Not until the Children Act 1989 did child care policy effect the legislative changes necessary to make adoption more readily available as an alternative to long-term fostering and not until that Act was amended by s 118 of the 2002 Act was a system of independent review inserted to safeguard children in local authority placements from being allowed to ‘drift in care’. However, for many children—particularly those aged 5 or older and with established attachments to parent/s and/or siblings—adoption may be too radical and child care legislation now makes available a range of private family orders such as a parental responsibility order, a special guardianship order77 or a child arrangements order which allow applicants to acquire parental responsibility without having to break established legal ties between a child and their family of origin. Special Guardianship Orders A special guardianship order vests in the guardian the degree of parental responsibility necessary to safeguard the welfare interests of the child to the exclusion of others. A ‘special guardian’ must be over 18, must not be the parent of the child and may be: • • • • •

any guardian of the child; a person in whose favour a child arrangements order has been made; a local authority foster parent with whom the child has lived for at least one year; any person who the child has lived with for at least 3 years; or any person who has the consent of someone with a child arrangements order or parental responsibility for the child, or a local authority (if a care order has been made) to apply.

This has proven to be a strong alternative to adoption and by 2012 some 2130 or 7.8% of those exiting the care system had done so by way of special guardianship. By 2019 that number increased to 3830 (an 11% rise from 2018). Some 90% of SGOs were in favour of relatives or friends, the remainder were largely to former foster carers (see, further, at Sect. 6.10.2.1).

77 See

the Children and Families Act 2014, s 12 and Sch 2 Part 1, para 21 amending the Children Act 1989, s 8.

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6.3.2 Contemporary Adoption Related Legislation While for most purposes the 2002 Act, as amended by the 2014 Act, now provides a consolidated legislative framework for regulating the adoption process, it would be a mistake to overlook the importance of the adoption agency regulations and other legislative provisions that set the standards for practice and serve to further unify child care and adoption law.

6.3.2.1

The Children and Social Work Act 2017

This statute, particularly ss 8 and 9, introduced some changes to the factors considered by courts and practitioners when making decisions on adoption.

6.3.2.2

The Education and Adoption Act 2016

The legislative intent of this statute is to create regional, instead of local, adoption registers, to ensure that the widest range of adoptive parents is available for children.

6.3.2.3

The Children and Families Act 2014

This legislation, which came into effect in April 2014, introduced reforms relating to adoption and children in care. It amended the 2002 Act to allow a contact order to be issued, at the making of the adoption order or at any time afterwards—and also to prohibit any contact—between a child and member/s of their birth family. Before granting an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child, must consider any existing or proposed arrangements and must take account of the views of the parties; such contact may be direct or indirect. It provides statutory rights to employment leave and pay for parents and adopters. Section 14 requires care proceedings to conclude as soon as possible or, in any event, to take no longer than 26 weeks.78 78 Note

that under the Children and Families Act 2014, s 14(5): A court in which an application under this Part is proceeding may extend the period that is for the time being allowed under subsection (1)(a)(ii) in the case of the application, but may do so only if the court considers that the extension is necessary to enable the court to resolve the proceedings justly. As the Court of Appeal stressed in re B-S Children [2013] EWCA Civ 114: “where the proposal before the court is for non-consensual adoption, the issues are to 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” (approved and re-stated by the President in Re S (A Child) [2014] EWCC B44 (Fam), when he added: “this deadline can be met, it must be met, it will be met. And remember, 26 weeks is [ . . .] a maximum, not an average or a mean. So many cases will need to be finished in less than 26 weeks”.

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The controversial s 3 gives the Secretary of State reserve powers to require a single, group of, or all, local authorities to make arrangements for other adoption agencies to perform one or more of their duties to recruit, assess or approve prospective adopters. Other important provisions include the repeal of the requirement under the 2002 Act to give consideration to religion and cultural matters when placing for adoption.

6.3.2.4

The Children and Young Persons Act 2008

This statute introduced provisions to safeguard children in private fostering arrangements by preventing looked after children being moved to such placements from foster care or children’s homes without a formal review chaired by an Independent Reviewing Officer to confirm that the setting would meet their needs.

6.3.2.5

The Children and Adoption Act 2006

The legislative intent of this statute, which came into effect on 21st June 2006, was to79 : … make provision as regards contact with children; to make provision as regards family assistance orders; to make provision about risk assessments; to make provision as regards adoptions with a foreign element; and for connected purposes.

The Act gave courts a wider range of powers for use in dealing with contact disputes after parents separate, and also contained measures on intercountry adoption, including a statutory framework for the suspension of adoptions from countries where there are concerns about a country’s adoption practices. It also introduced a procedure enabling a step-parent to be a sole adoption applicant in respect of their partner’s child.

6.3.2.6

The Adoption Support Services Regulations 2005

This deals with the matters such as: the duties of an adoption agency and the rules and functions of an Adoption Panel; placement considerations; and adoption records.

6.3.2.7

The Children Act 2004

This Act, which received Royal Assent on 15th November 2004, addresses recommendations made in the Laming Report80 and provides authority for implementing

79 See, 80 See,

preamble to statute. Laming L.J., The Victoria Climbié Inquiry (the “Laming Report), D.o.H., London, 2003.

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the government’s strategy as expressed in Every Child Matters.81 Key provisions included: the creation of the post of Children’s Commissioner for England82 ; provision for better regulation of children’s services; creation of adoption review panels; mandatory joint working and information sharing between agencies involved with children; and a duty on local authorities to promote the educational achievement of looked after children.

6.3.2.8

The Adoption and Children Act 2002

This formative legislation, introducing a wide range of provisions to update and co-ordinate child care and adoption practice, came into effect in December 2005, repealing the Adoption Act 1976 and amending the Children Act 1989. It introduced provisions allowing allowed civil partners, same sex couples and unmarried couples to adopt. Most importantly, it provided that the paramountcy principle must govern all decisions, whether taken by court or agency, affecting a child’s upbringing throughout his or her life including dispensing with parental consent for adoption. Provision was made for the introduction of placement orders and special guardianship orders,83 for single applicant adopters and for post-adoption information disclosure. It is to be noted that the 2002 Act continues the practice of not making provision for automatic representation by a solicitor in private family law proceedings.

6.3.2.9

Care Standards Act 2000

As amended by the Health and Social Care (Community Health and Standards) Act 2003, this statute established regulatory bodies for social care but it also provided authority: for the National Adoption Standards, given the force of statutory guidance from April 2003; and the National Minimum Standards for adoption; and, thereby, the means for assessing the performance of all adoption agencies in inspections undertaken by the Adoption and Permanence Taskforce.

6.3.2.10

The Adoption (Intercountry Aspects) Act 1999

By giving effect to the Hague Convention 1993, the 1999 Act introduced a new framework to govern the adoption of overseas children by UK citizens. It requires

81 See, the consultation process in relation to the Children Bill: the Green Paper Every Child Matters, 2003; and Every Child Matters: Next Steps published by the Dept. of Skills and Education, 2004. 82 Note, a Children’s Commissioner for Wales was instituted in 2001. Author acknowledges with thanks, advice received from Gillian Douglas on this matter (note to author, 22.10.2014). 83 They have increased by 122% since 2009; 58% of all orders are made in favour of foster parents.

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prospective adopters to be assessed, approved and authorised in the UK before children are brought into the jurisdiction84 ; reinforced by the Adoption of Children from Overseas Regulations 2001. It also requires all local authorities to include services to intercountry adopters within the general duty to provide an adoption service; a provision reinforced by s 2(8) of the 2002 Act.

6.3.2.11

The Children Act 1989

This cornerstone of UK child care law has been subject to considerable amendment. By stating the matters held to constitute a checklist of welfare interests it enabled a new, more uniform and objective application of this inherently subjective concept. By introducing the concept of parental responsibility and requirements on local authorities to provide services for children in need it placed a new emphasis on measures to prevent children entering the public care system. Among its more significant statements of principle were: that the welfare of the child is paramount; children should be brought up and cared for within their own families and services should be provided to families in need; the State should work in partnership with such families; children should be protected by effective intervention if they are at risk of significant harm; and that parental responsibility may need to be shared with the State.

6.3.2.12

Other Relevant Legislation

The Human Rights Act 1998 and the Equality Act 2010 for most purposes comprise the wider domestic framework for adoption related matters. The Council Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels II) is also of importance because it requires Central Authorities in Member States to collect and exchange information on any child of another Member State resident within their jurisdiction in respect of whom significant decisions are to be taken.

6.3.3 International Law This jurisdiction is preparing to leave the EU (28 member states, soon to be 27), but will not be leaving the Council of Europe (47 member States). Its legal framework has to some extent been shaped by European legislative instruments together with related rulings of the ECtHR, and to a lesser extent those of the European Court of Justice (ECJ) and the Human Rights Committee (HRC). This is unlikely to change significantly following Brexit. It will therefore remain bound by the ECHR and the rulings of the ECtHR, even if the latter lack enforceability, and also by the U.N. Convention on the Rights of the Child, ratified in 1991 and the Hague Convention 84 Re

C [1998] 2 FCR 641 and the case of ‘the internet twins’.

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on Protection of Children and Co-operation in respect of Intercountry Adoption 1993 (ratified and given effect by the Adoption (Intercountry Aspects) Act 1999). It has established the Department for Education (DfE) as the Central Authority for Intercountry Adoption in England. The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ratified in 1951, has since been given effect through the Human Rights Act 1998 which has had the effect of incorporating ‘Convention rights’ into the domestic law of the United Kingdom.85 More recently, the Adoption (Recognition of Overseas Adoptions) Order 2013,86 which came into force on 3rd January 2014, provides that an adoption other than a Convention adoption, effected under the law of an updated list of countries, is designated as an ‘overseas adoption’ and is therefore recognised as an ‘adoption’ under s 66 of the 2002 Act. For the purposes of this legislation, ‘law’ is defined as not including customary or common law.

6.3.3.1

Main International Instruments

For this jurisdiction, the main components of the international legal framework as it relates to adoption are the Universal Declaration of Human Rights (UDHR), the European Convention on Human Rights (ECHR), the UN Convention on the Rights of the Child (UN CRC) and the Hague Convention and the International Covenant on Civil and Political Rights (ICCPR) (see, further, Chap. 3).

6.3.3.2

Other

Also relevant are: the International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified in 1976; the UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) with its Optional Protocol, ratified in 1986; the Convention on the Rights of Persons with Disabilities (CRPD), ratified in 2009; the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally; and the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

6.4 Regulating the Adoption Process In this jurisdiction both local authority and court retain their traditional regulatory roles. The court also acts as a watchdog in relation to agency activity and the High 85 See,

In re McKerr [2004] UKHL 12; [2004] 1 WLR 807. legislation revokes and replaces the Adoption (Designation of Overseas Adoptions) Order 1973 and revokes the Adoption (Designation of Overseas Adoptions) (Variation) Order 1993. 86 This

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Court will use its powers of judicial review to intervene when alerted to possible improper practice. This tightly regulated approach, resting on a body of specific requirements with definite sanctions for non-compliance, underpinned by Court Rules, has been and continues to be a distinctive characteristic of the adoption process in England & Wales and elsewhere in the U.K. In England it has been further reinforced by the introduction of the Adoption Support Services Regulations 2005 which was preceded by two separate sets of standards: the National Adoption Standards, given the force of statutory guidance from April 2003; and the National Minimum Standards for adoption imposed under the Care Standards Act 2000 and against which agencies were inspected by the Adoption and Permanence Taskforce.87 The efficiency of the process has also been facilitated by the introduction of the National Adoption Register to expedite the matching of child and adopter/s. The net result is a very formal adoption process subject to highly prescriptive statutory and administrative rules––specifying targets, timescales and quality standards––raising fears in some quarters that this leaves very little scope for the discretion necessary if professionals are to hold focus on the particular welfare interests of each individual child.

6.4.1 The Process The introduction of the Adoption and Children Act 2002 left the stages of the adoption process much as before. It commences with a statutory pre-placement counselling stage and concludes with the statutory availability of disclosure procedures, use of contact registers, possible contact orders to accompany adoption orders and opportunities for acquiring adoption allowances and other forms of ongoing support from government bodies.

6.4.1.1

Adoption Proceedings

Decisions regarding adoption applications—as opposed to placement order decisions—are made in private hearings.

6.4.1.2

Representation

The 2002 Act makes no mention of legal aid thereby continues the practice of not making provision for automatic representation by a solicitor in private family law

87 See, the Commission for Social Care Inspection, Adoption: Messages from Inspections of Adoption

Agencies, London, 2006.

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proceedings: consequently many birth parents do not have independent legal representation throughout the course of an adoption process88 ; and prospective kinship carers, wishing to contest local authority proceedings, are ineligible for legal aid. One effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has been to further reduce legal aid available in private law proceedings, including adoption. The CRC, in its 2016 report, expressed concern that “the reduction of legal aid in all four jurisdictions appear to have a negative impact on the right of children to be heard in judicial and administrative proceedings affecting them”.89

6.4.1.3

Due Process

In Re C (Care Proceedings: Disclosure of Local Authority’s Decision Making Process) a90 mother challenged the local authority for failing to involve her in its decision-making process claiming that she had never been informed that she was required to acknowledge responsibility for the death of her first child as a step towards possible rehabilitation with the second. The court found that by not informing the mother of the contents of the report, in which an expert witness had raised the responsibility issue, the local authority may have failed to respect her “right to a fair trial” and thereby been in breach of Article 6 of the ECHR. This was reiterated in H v. Kingston upon Hull City Council 91 when the court warned that a child should not be removed from the family “unless and until there has been due and proper consultation and an opportunity to challenge the proposal.” Such consultation must consist of more than mere information giving; the parent/s must be listened to and their views taken into account. In Re B-S,92 Sir James Munby, in a ruling that was to restrain child care adoptions for several years, urged his colleagues in the lower courts to explore all possible options in such cases and stressed the need for proper evidence, warning that current “sloppy practice must stop. It is simply unacceptable in a forensic context where the issues are so grave and the stakes, for both child and parent, so high”.93

6.4.1.4

Undue Delay

In 2012 the Department for Education noted in An Action Plan for Adoption94 that delays in the adoption system were causing lasting harm for vulnerable children. 88 In childcare adoptions, however, as Julie Doughty has pointed out, the birth parents are provided with legal representation under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (note to author, 22.10.17). 89 (CRC/C/GBR/CO/5), 2016, op cit at para 0(b). 90 [2002] 2 FCR 673. 91 [2013] EWHC 388 (Admin) at para 54. 92 (Children) [2013] EWCA Civ 1146. 93 Ibid. at para 40. 94 Department for Education, An Action Plan for Adoption: Tackling Delay, 2012.

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It advised that local authorities must consider whether adoption or another form of permanent care is best for the child as early as possible, and referred to the Statutory Guidance requirement that this decision be made within four months of the child entering care. It might be added that undue delay is at times quite deliberate. Local authority social workers can and do plan many placements with a view to foster parents becoming adopters, once sufficient time has passed to allow bonding to occur and make removal of the child non-compliant with the welfare principle, thereby positioning adoption as the best option for securing established attachments.

6.4.2 Role of Adoption Agencies and Other Administrative Bodies The steady growth in the space occupied by mediatory bodies, and the reliance placed upon their findings at the adjudication stage, has become a conspicuous feature throughout all U.K. family law processes. In England & Wales the adoption process in has always been one that statutorily prohibits any profit element (even though it will not, ultimately, be permitted to compromise judicial application of the welfare principle). This characteristic strongly distinguishes it from its U.S. counterpart. The role of administrative agencies in the adoption process has been enlarged by the legal requirements in the 2002 Act to provide a more comprehensive adoption service and by the good practice requirements of the National Adoption Standards. The Adoption and Children Act Register, now underpinned by s 125 of the 2002 Act, expedites the workings of the adoption process in England by providing a national data bank of information relating to children waiting to be adopted and approved adopters.95

6.4.2.1

Adoption Agencies and Adoption Panels

Defined as a “local authority or registered adoption society”,96 the latter includes voluntary adoption societies, which unlike local authorities are required to register. Each agency is required to set up at least one Adoption Panel97 which must take all referrals relating to whether: adoption is in the best interests of a particular looked after child; a prospective adopter should be approved as an adoptive parent and; if the home of a particular approved prospective adopter would provide a suitable placement for a particular child. Although it makes recommendations rather than decisions for its agency, the latter is prevented from taking decisions in those areas 95 By

March 2004, the Adoption Register had compiled a database of records relating to more than 10,000 children and approved adopters and had facilitated the adoption placements of 50 children. 96 See, s. 2(1) of the Adoption and Children Act 2002. 97 Department of Health, Adopter Preparation and Assessment and the Operation of Adoption Panels: A Fundamental Review, 2002.

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without first inviting recommendations from the Panel and it must make its decisions before the child is placed for adoption. The Adoption Agency Regulations and the Suitability of Adopters Regulations 2004 in the main continue the previous provisions but make some important additional changes to practice. The prospective adopters, for example, are now to be given relevant information relating to the child in question before referral to the Panel and this must include any plans relating to post-adoption support services and contact arrangements. The Adoption Panel has no role in relation to family adoptions but it does screen all assessments of prospective intercountry adopters undertaken by voluntary adoption agencies.98 Prospective adoption applications from relatives of the child concerned are not subject to scrutiny by the local Adoption Panel (unless the child is in care). This, in effect, means that perhaps the most important quality control mechanism in the adoption process has no relevance for a proportion of UK adoptions. Additionally, although the Panel is required to make its matching recommendation prior to the agency placement decision, the latter’s practice of concurrent placement in fact circumvents the Panel, leaving it to rubberstamp a placement already made, which seriously undermines the Panel’s independence. Voluntary or Independent Adoption Agencies By far the majority of adoptions from care are undertaken by local authorities but some are organised by voluntary agencies which are affiliated to the Consortium of Voluntary Adoption Agencies (CVAA), comprising 32 member agencies. Legislative provisions governing equality and non-discrimination have proved problematic for some voluntary adoption agencies. Catholic Care, for example, one of 11 U.K. Catholic adoption agencies with strong connections to the Roman Catholic Church which provided much of its funding, faced court proceedings when it sought to confine its services to heterosexual couples contrary to the requirements of the 2007 Sexual Orientation Regulations.99 Ultimately the court found that the agency had failed to meet the statutory test imposed by s 193 of the Equality Act 2010 which required it to demonstrate that the less favourable treatment it proposed to offer same sex couples would constitute a proportionate means of achieving its legitimate aim of providing suitable adoptive parents for a significant number of ‘hard to place’ children.100 Accredited Bodies Article 10 of the Hague Convention, provides for the accreditation of bodies to carry out certain functions and tasks associated with the intercountry adoption process. 98 The Adoption of Children from Overseas Regulations 2001 require prospective intercountry adopters to submit to the same assessment process as prospective domestic adopters; since reinforced by the provisions of s. 83 of the 2002 Act. 99 See, the Equality Act 2006, s.81, together with the Equality Act (Sexual Orientation) Regulations 2007. A main effect of the Regulations was, subject to important exceptions, to make it unlawful for a person to discriminate on grounds of sexual orientation in the provision of goods, facilities or services to the public or a section of the public. 100 See, Catholic Care (Diocese of Leeds) v. the Charity Commission for England and Wales and the Equality and Human Rights Commission [2010] EWHC 520 (Ch); [2011] EqLR 597.

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The Adoption (Intercountry Aspects) Act 1999, s 2(3), gives effect to Article 10 by providing that “an approved adoption society is an accredited body for the purposes of the Convention” if it functions in compliance with Convention requirements.

6.4.2.2

Local Authorities

The local authority also plays a more structural role in the adoption process. An onus is placed on each agency to justify itself in terms of its contribution to the needs of the adoption process. The adoption responsibilities of local authorities rest on four planks. Firstly, they must contribute to forming and maintaining local adoption services. Secondly, they must link adoption to their other child care services. Thirdly, they must manage their own work as adoption agencies. Fourthly and finally, they must carry out certain supervisory duties in relation to placements. The Regs address the duty placed upon local authorities, under s 2(6) of the 2002 Act, to provide adoption support services. The adoption service requirement for England, as prescribed under s 2(6) of the 2002 Act and in Reg 3 of the Adoption Support Agencies Regulations 2005, entails each local authority ensuring the provision within its area of certain adoption services including: • • • • • • • •

counselling, advice and information; financial support; support groups for adoptive families; assistance with contact arrangements between adopted children and their birth relatives; therapeutic services for adopted children; help to ensure the continuance of adoptive relationships; provision of an adoptive support services advisor and adoption support plans for adoptive families; and an assessment of the needs of adopted children and their families for adoption support services.

The Children Act 1989, s 34, requires a local authority to provide arrangements for reasonable contact between a child in care and their parents and/or other members of the birth family; a level of once or twice a week would not be uncommon. When such a child is placed for adoption then, under the Adoption and Children Act 2002, ss 26 and 27, those arrangements are terminated. At that point, in the absence of a contact order—and the judiciary often prefer to leave contact arrangements to local authority discretion—the frequency of contact may abruptly drop to once every couple of months, under social work management. In the absence of judicial monitoring, contact arrangements can prove prejudicial to sustaining a parent/child attachment. The CRC has expressed concern that “parents have not been provided with adequate family support” and that “children have reportedly been removed from

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their biological families owing to the family’s economic situation or because a foster family may provide a more beneficial environment for the child”.101 This point had been made earlier by Munby J in Re B-S 102 : The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order. Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.

This inability of under resourced local authorities to provide sufficient preventative services to satisfy the family support obligations of Article 18 of UN CRC is problematic. Preventing children identified as ‘in need’ from becoming children at risk of ‘significant harm’ is ostensibly central to local authority policy but the continued increase in children coming into public care, a minority of whom are then compulsorily adopted, indicates a failure to achieve this in practice.

6.4.3 Role of the Determining Body Adoption proceedings are commenced in the Family Court and allocated to the appropriate judicial level depending upon complexity.103 A minority (often involving children not in the country at the time of the application) are heard in the High Court.

6.4.3.1

Role of the Judiciary

Under the Adoption and Children Act 2002, as under all previous legislation, adoption in England & Wales remains firmly a judicial process. The court continues to ensure that eligibility/suitability criteria are fulfilled by all parties, ascertains or adjudicates on consent requirements, confirms that the proposed arrangements are compatible with the child’s welfare and then issues or refuses the order sought. However, the 2002 Act has added some refinements such as: • • • •

flexibility in relation to marital status of applicants; application of the welfare checklist; obligation to check whether post-adoption contact arrangements are necessary; determine whether an adoption order with arrangements for contact would be appropriate; and to • consider the appropriateness of an alternative order.

101 See,

UN Committee on the Rights of the Child, 2016, op cit at para 52. [2013] EWCA Civ 1146 at para 29. 103 See, the Crime and Courts Act 2013s 17(3) and Sch 10. 102 (Children)

6.4 Regulating the Adoption Process

6.4.3.2

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CAFCASS

The judicial role is supplemented by the Children and Family Court Advisory and Support Service104 which will appoint CAFCASS officers (previously a guardian ad litem and a reporting officer)l—though not in all cases—to carry out an exhaustive investigation into all the circumstances of the proposed adoption, interviewing all applicants and respondents including, where feasible, the child and ensuring that any factor having a bearing on the welfare of the child is brought to the attention of the court. In particular, s 102 of the 2002 Act requires the CAFCASS officer to advise parents on the implications of giving consent. This marks a significant change to long established practice under the 1976 Act whereby the appointment of a guardian ad liteml—to safeguard the interests of the child—was mandatory in all adoption proceedings. Now, if the parents consent, the CAFCASS officer acts as a reporting officer and only where they do not does the officer then act as the children’s guardian.105 It is to be noted that under this system the impartiality and independence of the guardian role is compromised.106 The court will also receive a report from the adoption agency or local authority in all cases.

6.4.4 The Registrar General This official has statutory duties with a direct bearing on the adoption process being obliged to maintain an Adopted Children Register and keep an index of this in the General Register Office. The duty imposes a further requirement that records are kept which provide a link between an entry in the Register of Births marked ‘adopted’ and the corresponding entry in the Adopted Children Register (a link not publicly accessible). This allows for the collection of information sufficient to identify child, adopters, the date and place in respect of every adoption order issued. The Registrar General is required to maintain an Adoption Contact Register which is intended to facilitate those adopted persons and their birth parents who wish to contact each other.

104 Established in April 2000, CAFCASS brings together the role, functions and staff of the Probation

Service in private law proceedings, the Guardian ad Litem Panels in public law proceedings and the child section of the Official Solicitor’s Department. This non-departmental body now provides welfare reports and other support services in family proceedings throughout the three tiers of the court system and is accountable to the Lord Chancellor. 105 Author acknowledges with thanks, advice received from Gillian Douglas on this matter (note to author, 22.10.2014). 106 See, for example, MW v. Hertfordshire County Council [2014] EWCA Civ 405 where it was accepted that a guardian was not a neutral party.

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6.4.5 Other The brief of independent monitoring bodies such as the Equality and Human Rights Commission and the Children’s Commissioner extends to the adoption process but as yet there is little evidence of their engagement with it.

6.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria As adoption in this jurisdiction sheds its traditional private and ‘closed’ characteristics—in response to equality, human rights and transparency requirements—so its social functions have been statutorily adjusted to accommodate a broader range of adoptees and adopters. The same formal statutory criteria apply to all applicants whether the adoption is family, agency or intercountry while the non-statutory suitability criteria may vary to take account of factors such as sensitivity to possible transracial or cultural issues. The Adoption and Children Act 2002 introduced significant changes to the threshold requirements for all parties entering the adoption process.

6.5.1 The Child The child must be a ‘person’ known to the law i.e. he or she must have been born. It is not possible to adopt a foetus. That parties may enter into a contract in respect of a foetus to be carried to full term by a surrogate mother for the purposes of adoption is beside the point. Such a contract could well collapse as the pregnancy may not reach full term or one or more of the parties may decide not to proceed with the adoption etc.107 The child must also satisfy minimum and maximum age limits by being not less than six weeks old and not having attained their 18th birthday before the application is lodged.108 A child who is or has been married cannot be adopted. Where of sufficient age and discernment, the child’s views must be sought and taken into account; he or she will be made a party to placement order proceedings. The child must be subject to the courts of this jurisdiction. Children from overseas who are to be adopted here must cease to be subject to the courts of their country of origin and come within the jurisdiction of domestic courts. This is achieved by being resident if not domiciled within the U.K. and by not being excluded by any provision of international law. In the latter context, however, for Convention adoptions it is 107 See,

however, Re Adoption Application (Adoption: Payment) [1987] 2 FLR 291 where it was recognised that such a contract was in itself valid. 108 See, s 47(9) and 49(4) of the 2002 Act which introduce a rule permitting the adoption after a child’s 18th birthday provided the application was lodged in court before that birthday.

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of no consequence that the ‘habitual residence’ of the child is in another country provided that of the adopters is within the jurisdiction. Additionally, in all adoptions but perhaps mainly in relation to ‘family’ adoptions, suitability criteria may now either prevent an adoption by diverting applicants (either self initiated or by judicial discretion) from the adoption process to an alternative and more appropriate order or it may result in an adoption order subject to a contact order in favour of a birth parent or sibling. Sumner J perhaps had this spectrum of choices in mind when, in Birmingham City Council v. S,109 he described adoption as “a last resort for any child” to be invoked only “when neither of the parents nor the wider family and friends can reasonably be considered as potential carers for the child”, and then—touching on a recurring theme—went on to recognise a child’s “right to be brought up by her own family”.110 The availability of alternatives to an absolute adoption order is an important and characteristic feature of the adoption process in this jurisdiction. Children are now moving through the adoption process more quickly. Those under a year are placed on average within five months of a formal decision being made and older children on average within nine months.111

6.5.1.1

The Welfare Threshold

The introduction of the 2002 Act changed adoption law to make the welfare of the child the paramount consideration (complying with Art 21 of the Convention on the Rights of the Child), thereby significantly altering the balance between legal status requirements and welfare interests. In what, perhaps, has been the most radical adjustment ever made to the law of adoption in the U.K., the availability for adoption of a looked after child in England & Wales may now be determined by his or her welfare interests.112 Not the least important aspect of that change was the introduction of a requirement that the court, when considering the child’s welfare interests, do so with regard not just to the duration of childhood but as projected on a lifelong basis.113 For many decades U.K. legislators and judiciary have been at pains to draw a line between the public and private law proceedings of child care and adoption respectively. The difference between “first” and “paramount” consideration, however tenuous, had come to represent that line and many judicial pronouncements laboured the point that they would not countenance the “unreasonable withholding” ground 109 [2007]

1 FLR 1223. also, the ruling in Re B-S [2013] EWCA Civ 1146, [2014] 1 FLR 1035. 111 The Commission for Social Care Inspection, Adoption: Messages from Inspections of Adoption Agencies, London, 2006, para 2.6. 112 Unlike the law in other U.K. jurisdictions, and in stark contrast to adoption law in Ireland where factors such as parental consent and marital status of parents continue to be largely determinative of a child’s availability for adoption. 113 The Adoption Act 2002, s 1(2). 110 See,

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being deployed as a Trojan horse to undermine it. The grounds for a child care order could not be used to passport a child into the adoption process. To concede this would be to open the doors to accusations of ‘social engineering’ (see, further, Chap. 1). However, whether or not it represents a paradigm shift in U.K. adoption law, the 2002 Act has now bridged the gap between child care and adoption proceedings. Specifically, that bridge was provided by upgrading the welfare principle. Section 31(2) of the 1989 Act requires the court to be satisfied (a) that a child is “likely” to suffer “significant harm” and (b) that the likelihood is “attributable” to the care likely to be given to her if the order were not made not being what it would be reasonable to expect a parent to give to her.114 As was emphasised In re J (Children) (Care Proceedings: Threshold Criteria)115 a likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities. It is also noteworthy that: by s 31(9), “harm” means “ill-treatment or the impairment of health or development…” and “development” includes “emotional…development”; while by s 31(10), the word “significant” means that “where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.” When interpreting and applying these concepts the court, as Munby J said in In re K, A Local Authority v. N and Others,116 “ must always be sensitive to the cultural, social and religious circumstances of the particular child and family”. In the words of Hedley J: “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”117 ; taking into account that “it is not the provenance of the state to spare children all the consequences of defective parenting … it simply could not be done”118 ; and that “significant harm is fact-specific and must retain the breadth of meaning that human fallibility may require of it” but that “it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy”.119 A care order can be made and with it the door opens for a care plan which may designate adoption as being the option most conducive to furthering the welfare of the child. Though, the cautionary advice given in Re C and B should always be borne in mind120 : Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. 114 The

Law on Child Care and Family Services “It is intended that “likely harm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does occur.” 115 [2013] UKSC 9, [2013] 2 WLR 649. 116 [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, at para 26. Also, see, Re G [2012] EWCA Civ 1233. 117 See, Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para 50. 118 Ibid. 119 Ibid., at para 51. 120 [2001] 1 FLR 611, at para 34.

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Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.

6.5.2 The Birth Parent/s Married or not, any parent with full parental responsibility is entitled to voluntarily relinquish a child for adoption and, following the introduction of the 2002 Act, such consent may be given on an ‘advanced’ basis. The consent of the other parent, if he or she has parental responsibility, must be obtained or the need for it dispensed with. Parents may have their rights restricted by a care order under the 1989 Act and then abrogated by a placement order under the 2002 Act which authorises an adoption placement against parental wishes. Where this occurs it is now almost inevitable that subsequent adoption proceedings will result in the granting of the order sought, as the paramountcy principle will apply as the test of whether or not an adoption order should be made.121 Also there must be no evidence of illegal practices such as involvement in the selling or smuggling of children for adoption purposes (though such practices will not outweigh welfare considerations when it comes to deciding whether adoption is appropriate).122 Since the introduction of the 2002 Act, a birth parent is no longer required to be a joint applicant with a step-parent in order to adopt their child of a previous relationship.

6.5.2.1

Unmarried Mother

The considerable improvement in welfare benefits, housing entitlement, and family credit etc., coupled with the virtual disappearance of any associated stigma (though not among ethnic minority groups), has almost eradicated voluntary relinquishment as the only option of an unmarried mother. However, it remains the case that it is the children of unmarried mothers that constitute by far the largest proportion of annual adoptees.123

6.5.2.2

Unmarried Father

Unlike the situation before the 2002 Act, an unmarried father may now acquire parental responsibility by registering the birth jointly with the child’s mother. While the consent of an unmarried father without parental responsibility continues to be 121 Subject

to the ruling in Re B-S [2013] EWCA Civ 1146, [2014] 1 FLR 1035. ‘trafficking’ of children for any purpose is prohibited by various international instruments including the United Nations Convention on the Rights of the Child 1989, the ILO Worst Forms of Child Labour Convention 1999, and the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children 2000. 123 In 2005, for example, of 5280 adoptions 4025 were in respect of children born outside marriage. 122 The

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unnecessary, he must where possible be served with notice and his views ascertained124 (see, further, below). Where the subject is an overseas child, then evidence of parental consent must be brought before the court.

6.5.2.3

Failed Parental Rehabilitation

Where there are reasonable grounds for optimism, regarding a possible reunification of parent and child, then the local authority should give first preference to pursuing that option. The basic principle underpinning the law—arguably—remains as stated 30 years ago by Templeman LJ125 : 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.

This principle implies that child welfare interests cannot be easily separated from parental welfare: the younger the child the stronger the assumption that—save in exceptional circumstances—this symbiotic relationship of mutual attachment should be the primary vehicle that determines his or her welfare interests. In the light of the draconian effect of adoption on such a parent/child relationship, the guidance from the ECtHR126 is apt—every effort should be made to explore rehabilitation if a subsequent recourse to adoption is to be compliant with Article 8 of the ECHR. As it stressed in the above-mentioned YC v. the United Kingdom:“family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing”.127 Accordingly, as was stated in Re B,128 the court must consider that a child’s welfare includes the interest of that child in being brought up by his or her family of origin, and must therefore assess the possibility of that family meeting the child’s needs with appropriate support services from the State. This would seem to contrast sharply with the more recently expressed judicial view that there is no right or presumption that a child should be brought up by their natural family.129 Current UK judicial guidance on this central child welfare issue has diverged from ECtHR established benchmark cases. In particular, Gorgulu v. Germany130 provides authority for the view that the child’s welfare must be seen in a long-term context 124 See,

Re L (Adoption: Contacting Natural Father) [2007] EWHC 1771 (Fam). KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, [1988] 2 FLR 139, at 141. 126 Haase v. Germany (2005) (App No 11057/02, ECHR). 127 Op cit at para 35. 128 [2013] UKSC 33, paras 26–28. 129 Re W (A Child) [2016] EWCA Civ 793. 130 Application No 74969/01, ECtHR, 26.02.2004. Also, see, P, C and S v. UK (2002) 35 EHRR 31, K and T v. Finland [2001] 2 FLR 707 and Johansen v. Norway (1996) 23 EHRR 33; see, further, Chap. 4. 125 Re

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and this may even require terminating an adoption placement, however satisfactory, if local authority intervention is to meet the test of ‘proportionality’. Achieving permanence through the mandatory care plan is in fact pursued by restoring a child to parental care far more frequently than by adoption. Clearly, for this to happen, the standard of parental care has to improve quickly, significantly and sustainably. Effectively, the birth parent/s should be offered a rehabilitation training program—bearing in mind the admonition of the ECtHR in Kutzner v. Germany131 that it was “questionable whether the domestic administrative and judicial authorities [had] given sufficient consideration to additional measures of support as an alternative to what is by far the most extreme measure, namely separating the children from their parents”.132 The parent/s must then use that opportunity to demonstrate a capacity to achieve significant change before a placement order is made. However, it must first be made clear to such parent/s what exactly is required of them: they must be fully part of that decision-making process; as was pointed out in the above mentioned Re C case133 (see, further, at Sect. 6.4.1.3). An opportunity for rehabilitation can be authorised under s 38(6) of the 1989 Act, which allows the court to direct assessments in respect of the child’s best interests, usually accompanied by an interim care order. However, once a child is placed with prospective adopters, often by way of concurrent planning, the clock is ticking against the birth parent/s134 (see, further, at Sect. 2.4.3.3).

6.5.2.4

Kinship Placement

Section 1(2)(f) of the 2002 Act directs the agency/court specifically to have regard to relationships with relatives (which, in this context, includes parents) such as grandparents.135 This will result in agency social workers exploring the possibility of kinship care and/or the appropriateness of ongoing contact with relatives, possibly using a family group conference to do so, before referring the case to its Adoption Panel.136

131 (2002)

35 EHRR 25. at para 75. 133 Care Proceedings: Disclosure of Local Authority’s Decision Making Process [2002] 2 FCR 673. 134 As noted by the ECtHR in YC v. United Kingdom (2012) 55 EHRR 33 at para 141. 135 Re W(A Child) [2016] EWCA Civ 793. 136 But see further the Adoption Agencies (Panel and Consequential Amendments) Regs 2012, SI 2012/1410. 132 Ibid.

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6.5.3 The Adopters: Eligibility and Suitability Criteria All prospective adopters must satisfy eligibility criteria––such as the statutory conditions relating to age, domicile/habitual residence137 and duration of placement–– though these have always been most stringent in relation to third party prospective adopters—and in relation to ICA, they will also have to satisfy any additional ‘sending nation’ requirements. Since the introduction of the 2002 Act, unmarried couples will satisfy eligibility criteria if the child concerned has been part of their household on a longterm basis, usually a minimum of two years. The minimum care period is six months for step-parent applicants and one year for foster-parents. All other applicants (e.g. a partner of the child’s parent) must have had direct care responsibility for the child for at least three years preceding the application. In addition, the suitability criteria consisting of administrative conditions as assessed by adoption agencies and relating to factors such as maximum age, health, quality and duration of relationships, cultural background and lifestyle must also be satisfied but these are now governed by the National Standards and/or the Regulations.138 An Adoption and Children Act Register is available to promote the recruitment of adopters and facilitate the matching process.139 Single and Same Sex Adopters Adoption by a single, unmarried person has always been possible in this jurisdiction. Indeed, during the year ending 31st March 2013, 10% (420) of all adoptions were by single adopters140 rising in 2018 to 12% (450) of the 3820 total. In December 2005, both the Civil Partnership Act 2004 and the Adoption and Children Act 2002 came fully into effect. The latter provides explicit recognition, in s 49(1) and s 144(4), that an adopting ‘couple’ may comprise ‘two people (whether of different sexes or the same sex) living in an enduring family relationship’. In 2007, 2 per cent of adopters were an unmarried couple (same gender) and 1 per cent of adopters were civil partners. By March 2019, 12% of all child care adoptions (430) were by single adopters and 14% (490) were adopted by same sex couples (in a civil partnership, married or neither).141 The introduction of the Marriage (Same Sex Couples) Act 2013 triggered an increase in applications from same sex prospective adopters. In T & M v. OCC & C 142 the court had to determine whether a lesbian couple living separately, with a child each, were eligible for an adoption order. Hedley J 137 If

the application is made by a couple (whether married or unmarried), both of them must have been habitually resident in the British Isles for at least one year preceding the application or one of them must have been domiciled in a part of the British Isles. 138 See, further, the Suitability of Adopters Regulations 2005. 139 Sections 125–131. See, also, the National Standards and Practice Guidance. 140 See, BAAF, at: https://www.baaf.org.uk/res/statengland. 141 See, https://corambaaf.org.uk/fostering-adoption/looked-after-children-adoption-fostering-sta tistics/statistics-england. 142 [2010] EWHC 964.

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specified that what was required was firstly, an unambiguous intention to create and maintain a family life and secondly, a factual matrix consistent with that intention. The court held that the background to the case and the shared care arrangement was entirely consistent with the concept of a family of 4 and thus within the ambit of s 144.

6.5.3.1

Third Party Adopters

Local authority foster carers can readily satisfy eligibility, suitability and residence criteria and now have stronger statutory rights in relation to adoption. The 2002 Act, in the provisions regarding notice/time for child to have lived with such applicants, recognises their singular position and facilitates their applications. In an agency case (designated by the local authority as an adoption placement) the foster carers can now lodge an adoption application on completion of the statutory 10 week care period. In a non-agency case (where the placement has not been so designated) the foster carers can apply to adopt after one year of continuous care without local authority consent, though only after serving at least three months notice. Capacity to meet criteria of eligibility and suitability is determined in the first instance by the Adoption Panel of the relevant adoption agency. The availability of adoption allowances eases the access of third party adopters to the process.

6.5.3.2

First Party Adopters

Since the introduction of the 2002 Act parents and relatives are required to demonstrate that adoption, rather than any other order, is a better means of promoting the welfare of the child concerned. The term ‘relative’ is now limited, under s 144, to the child’s grandparent, brother, sister, uncle and aunt, whether of the full blood or by marriage. Because adoption is often inappropriate in circumstances where it can obscure the true nature of blood relationships, special guardianship orders now offer relatives an alternative. Relatives applying to adopt must now have cared for the child for three years within the last five unless exempted by the court.143 Step-Parents A step-parent is enabled, under s 51(2), to make application alone without the necessity for this to be accompanied by an application from the birth parent partner; regardless of whether that partner is their spouse; on condition that he or she has cared for the child for at least six months prior to the application. Adoption orders issued to such applicants may be made subject to a s 8 order. The definition of stepparent took a new twist in B and L v. UK 144 in which the plaintiff successfully argued 143 See,

s 42(5) and (6). Previously the care period for such an applicant was only 13 weeks. 1 FLR 35.

144 [2006]

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that the U.K. was in breach of Article 12 of the Convention by denying him his right to marry (his former daughter-in-law) and found a family (adopt her child i.e. his grandchild).145

6.5.3.3

Intercountry Adopters

The Adoption (Intercountry Aspects) Act 1999 gave effect to the Hague Convention 1993 and introduced a new framework to govern the adoption of overseas children by U.K. citizens. It requires prospective adopters to be assessed, approved and authorised in the U.K. before children are brought into the jurisdiction146 ; reinforced by the Adoption of Children from Overseas Regulations 2001. It also requires all local authorities to include services to intercountry adopters within the general duty to provide an adoption service; a provision reinforced by s 2(8) of the 2002 Act (see, further, Chap. 5).

6.6 Pre-placement Counselling Adoption agencies are required, under s 3 of the 2002 Act, to ensure the availability of services to all parties involved in arrangements for a prospective adoption.147 Such services necessarily include counselling148 —to the birth parent/s—to ensure an awareness of options, access to ongoing support services and ability to make an informed decision—and to prepare prospective adopters and child.

6.6.1 Wishes, Welfare and Safety of the Child The National Standards require the needs, wishes, welfare and safety of the child to be placed at the centre of the adoption process. Every child is to have a named social worker who will be responsible for that child and will be required to explain to him or her the matters arising at every stage throughout the process. The child must be listened to and their views taken into account and where his or her wishes are not complied with this must be recorded and an explanation given to the child.

145 See also Soderback v. Sweden [1999] 1 FLR 250 and Re P (Step-Parent Adoption) [2014] EWCA

Civ 1174. Re C [1998] 2 FCR 641 and the case of ‘the internet twins’. 147 The Houghton report, op cit, had first recommended that such services be available and this was subsequently given effect by s 1 of the Children Act 1975. 148 Reg 7(1) of the Adoption Agencies Regulations 1983 specifically required adoption agencies to provide counselling services to relinquishing mothers. 146 See,

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While it would always be the case that where a child had views in relation to his or her proposed adoption these would be sought and brought before the court by the CAFCASS officer, the child would seldom have the opportunity to express these views either personally and directly or through a solicitor. In Scotland,149 unlike other U.K. jurisdictions, there is a specific legislative requirement that the child’s consent be obtained as well as his or her views.

6.6.1.1

Adoption Panel

The issue of whether or not counselling services have been provided, or may need to be, in relation to all parties to a prospective adoption (except family adoptions) will, in practice, be raised by the Adoption Panel. The 2002 Act requires the Panel to make its recommendations to the local authority in advance of any such placement. Providing information to prospective adopters, regarding the child to be placed with them, is an important matter that must be addressed at this stage. The adoption agency is required to ensure that prospective adopters have information relating to the child’s family background, health and personal history.150 Where insufficient or wrong information is provided, the placing agency may find itself liable to a compensation claim by the adopters.151 This duty has been supplemented by requirements in the National Standards. Review The 2002 Act provides for the establishment of a review procedure in respect of decisions made by adoption agencies regarding adoption. A person in respect of whom a decision has been made will be able to apply to a review panel for a review of that decision.

6.7 Placement Rights and Responsibilities The law governing placements, together with attendant rights and responsibilities, is to be found in the 1989 Act and ss 18–29 of the 2002 Act as amended by the 2014 Act.

149 See,

Adoption and Children (Scotland) Act 2007, s 32. 12(1) of the Adoption Agencies Regulations 1983. Also, see, s 54 of the 2002 Act. 151 See, for example, W v. Essex County Council [2000] 1 FCR 568 and A and Another v. Essex County Council [2002] EWHC 2707 (QB). Note, however, that inaccurate information will not provide grounds for revoking an order. In J and J v. C’s Tutor [1948] SC 636 the Scottish Court of Session refused a couple’s plea that they had adopted a child in error induced by misrepresentation and applied for the order to be set aside. They believed they had adopted a healthy child but the child suffered from a severe brain injury sustained at birth. The Court acknowledged the hardship but the relevant adoption statute did not empower the Court to set aside the adoption on such a basis. 150 Reg

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6.7.1 Authority to Place An adoption agency may now make a placement either with consent152 (including ‘advanced consent’)153 or by placement order.154 In the former instance, the child may be placed with prospective adopters identified either in the consent form or by the agency.155

6.7.1.1

Placement by Birth Parent

In compliance with Article 29 of the Hague Convention, direct placements by the birth parent/s for the purposes of adoption are statutorily prohibited, subject to s 92(4) of the 2002 Act.

6.7.1.2

With Consent

An adoption agency placement may be authorised by the consent156 of birth parents with parental responsibility—including ‘advanced consent’157 which may breach the Hague Convention, Article 4(c), stipulation that the consent of the mother be given only after the birth of the child—after which placement is made with those prospective adopters identified either in the consent form or by the agency.158 The 2014 Act has deleted the provision in the 2002 Act that required an adoption agency, when placing a child for adoption, to consider religious, racial, cultural and linguistic factors.159

6.7.1.3

Without Consent

If the birth parents do not agree to adoption the court will appoint a Children’s Guardian (CAFCASS officer) to advise the court whether such an order would be in the child’s best interests. The court may dispense with the need for parental consent for placement but only if satisfied that: (a) the parent or guardian cannot be found or lacks capacity; or (b) the welfare of the child requires the consent to be dispensed 152 Section

52 of the 2002 Act. 20. 154 Section 21(1). Note that in 2013 there was a fall in the number of such orders which may be attributable to Sir James Munby’s criticism of social work practice in preparing for non-consensual adoption proceedings (see Re B-S (Children) [2013] EWCA Civ 1146). 155 Section 19(1)(a) and (b). 156 Section 19 of the 2002 Act. 157 Section 20. 158 Section 19(1)(a) and (b). 159 Section 1(5). There was no equivalent requirement regarding racial considerations in the 1976 Act. 153 Section

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with,160 in which case the court is required to have regard to the welfare checklist, as stated in the Adoption and Children Act 2002, s 1(3), including considering whether making no order would be preferable, before dispensing with consent. Once placed, parental responsibility for the child is vested in the prospective adopters but must be shared with the placing agency and the birth parent/s until such time as the proceedings are determined. Period of Care The court cannot make an adoption order until the child, if placed by an agency, has lived with the adopters for at least 10 weeks.161 This period does cannot start until the child is six weeks old, so—regardless of whether it was an agency or non-agency placement—no order is ever made before a child is 16 weeks of age and in practice not until he or she is much older; very much older in cases of non-agency placements.

6.7.1.4

Placement by Local Authority

The Children and Families Act 2014, s 2, mandates ‘fostering for adoption’ placements, thereby statutorily endorsing ‘concurrent planning’ (see, further, Sect. 2.4.3.3). It does so by introducing new sub-sections 9A, 9B, & 9C into s 22C of the 1989 Act the effect of which is to position the paramountcy principle at the placement stage of the adoption process. Once the possibility of a kinship placement has been ruled out, then a local authority must place a child with a foster parent who has already been approved as a prospective adopter—if adoption is considered to be in that child’s best interests.

6.7.1.5

Placement by Accredited Body: Placement Order

Section 21(1) of the Adoption and Children Act 2002 provides for the making of a placement order authorising a local authority to place a child for adoption with prospective adopters. This option is unavailable where the local authority has applied unsuccessfully for a placement order under s 21 of the Adoption and Children Act 2002. Making a Placement Order Such an application must be made by a local authority, as voluntary adoption agencies are not permitted to use this procedure, and in practice it is often coupled with one for a care order. The child concerned will be a party to the application and must be the subject of a care order or the court must be satisfied that the grounds for such can be met162 and that either parental consent is available (and has not 160 Section

52. 42(2). 162 Section 21(2)(a) and (b). 161 Section

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been withdrawn) or can be dispensed with.163 Section 52(1)(b) of the 2002 Act permits the making of a placement order: where “the welfare of the child requires the consent to be dispensed with; having had regard to the welfare checklist in s 1(4); the paramount consideration, under s 1(2), being the welfare of the child “throughout his life”. This step is crucial. The Court of Appeal164 has stressed that the proper test for dispensing with parental agreement to the making of a placement order, under Adoption and Children Act 2002, s 52(1)(b), is whether the child’s welfare requires adoption as opposed to something short of adoption; under s 1(2) of the 2002 Act the child’s welfare throughout his life was the paramount consideration. In LC (Placement Order)165 the Court of Appeal remained unconvinced. This case concerned a local authority appeal against the refusal of its application for a placement order in respect of the two-year old child LC was rejected by the court which was satisfied that the court of first instance had conducted a correct appraisal of the advantages and disadvantages of a proposed adoption placement for LC: the child’s strong ties with her two brothers and with her mother outweighed the benefits of ‘stranger’ adoption. Before making the order the court must consider whether contact arrangements are necessary and may make an order for contact when making the placement order. Once made a placement order vests parental responsibility in the local authority which will then identify an appropriate adoption placement166 ; if it fails to do so, which often happens, then the child will remain in foster care.167 Once granted, the order vests parental responsibility in the agency168 and in the prospective adopters169 until it is revoked or an adoption order is made in respect of the child. This is important. It is intended to avoid the predicament in the U.S. where every year parental rights and responsibilities are legally removed in respect of many thousands of children in preparation for non-consensual adoption placements which are never made, leaving the children with the status of ‘legal orphans’ (see, further, Sect. 8.2.2.1). While a placement order is in force the child may not be removed,170 except by the local authority.171 Contested Placement Order The Court of Appeal ruled in The Matter of S (A Child)172 that where a child is in foster care then important legal implications arose from whether that placement 163 Section

21(3). v. A County Council; Re P [2008] EWCA Civ 535. Also, see, Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, per Wall LJ at para 126. 165 [2020] EWCA Civ 787. 166 Section 25(2). 167 Author acknowledges advice of Julie Doughty on this matter (note to author, 22.10.17). 168 Section 25(2). 169 Section 25(3). 170 Section 30. 171 Section 34. 172 [2008] EWCA Civ 1333. 164 SB

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could be defined as with a ‘potential adopter’ or with a ‘prospective adopter’. In this case although the foster carer had not committed to adopting the child, neither had she ruled it out: her status was therefore a ‘potential adopter’ and as such the child was in an adoption placement and the birth mother had locus standi to appeal against what was a placement of her child for adoption. Where proceedings are contested by the birth parent/s, there is a heavy onus resting on the local authority to satisfy the court that the application is compliant with Article 8 of the European Convention: the interests of the child must make an adoption order necessary.173 In this context, the ECtHR has stressed the important bearing of the proportionality principle. For example, in YC v. United Kingdom,174 the Court considered the childcare proceedings in respect of the applicant’s son, born in 2001, which had resulted in an order authorising the child to be placed for adoption because of concerns about her relationship with the child’s father. The applicant complained in particular about the courts’ refusal to order an assessment of her as a sole carer for her son. The ECtHR held that there had been no violation of Article 8 of the ECHR, finding that the decision to make a placement order had not exceeded the State’s margin of appreciation and that the reasons for the decision had been relevant and sufficient. The Court stressed that “in particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives”.175 Revocation of a Placement Order If, following the issue of a placement order, an adoption placement is not made, then the birth parent/s can apply for the order to be revoked (again, to avoid the ‘legal orphan’ situation). However, while a placement order can be revoked176 this requires leave of the court177 which it cannot give unless satisfied that there has been a change in circumstances since the order was made178 (see, further, below). In considering whether to grant leave the court does not require evidence of significant change,179 nor does it need to apply the paramountcy principle,180 but it must be satisfied that “in all the circumstances, including the mother’s prospects of success in securing revocation of the placement order, and T’s interests, leave should be given”.181 As 173 See,

Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, at para 125. 174 (2012) 55 EHRR 33, at para 134. 175 Ibid. at para 135. 176 Section 24. 177 Section 24(2)(a). 178 Section 24(3). 179 Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616 [2007] 2 FLR 1069. 180 M v. Warwickshire County Council [2007] EWCA Civ 1084 [2008] 1 FLR 1093. 181 As stated in NS-H v. Kingston upon Hull City Council and MC [2008] EWCA Civ 493, [2008] FLR 918, para 27.

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demonstrated in Re P (Adoption: Leave Provisions)182 and in Re C (A Child),183 once a placement order has been made then, even if the birth parent/s have good grounds for claiming that their circumstances have changed so significantly as to enable them to resume care responsibilities, that claim will be measured against the projected lifelong welfare interests of the child. The parental right to so apply ends when the child is placed for adoption.184 Thereafter the parent can do nothing until there is an application for an adoption order.

6.7.1.6

Family Adoption

In the context of step-parent adoptions, the 2002 Act ended the necessity for a birth parent to adopt their own child; the application will now be made by the step-parent alone but not before the completion of a six-month period of care. Family adoptions seldom entail a change of placement except where a birth parent with parental responsibility exercises their right to place with a relative.185 This exemption is available under s 92(3)-(4) of the 2002 Act which continues the right previously available under the 1976 Act; a right not extended to an “intercountry” placement with relatives. Under s 144(1) a “relative” for this purpose is defined as a grandparent, brother, sister, uncle or aunt (whether full blood, half blood or by marriage). Notice of intention to commence adoption proceedings186 must be served on the local authority which will then assess and report to the court as to whether there are any issues that need to be addressed and whether the order sought, an alternative, or no order, would be in the best interests of the child.

6.7.1.7

Agency Adoption

Adoption agency placements may be made with or without parental consent; increasingly they are non-consensual. Indeed, as has been noted187 : The U.K. is closer to the U.S. in the extent to which it is willing to over-rule parental wishes in order to place children for adoption. Elsewhere in Europe there is a much greater reluctance to over-rule the wishes of parents.

The placement may be chosen by the consenting party or by the agency. Otherwise only a local authority can make an adoption placement and only if it does so either: under s 22C of the 1989 Act, as amended by the 2014 Act; or obtains a placement order 182 [2007]

EWCA Civ 616. EWCA Civ 431. 184 Section 24(2)(b). 185 See, Re P; K and K v P and P [2005] 1 FLR 303. 186 Section 44 of the 2002 Act. 187 See, Performance and Innovation Unit, Prime Minister’s Review of Adoption, London, Cabinet Office, 2000 at Annex 4. 183 [2013]

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having established that the consent of both parents is available or can be dispensed with, and the child is the subject of a care order or that the grounds can be met for such an order. Where a consenting parent withdraws their consent before the prospective adopters lodge their application, then too the local authority must obtain a placement order if the adoption placement is to be maintained. The court must give due consideration to the welfare checklist before determining an application for a placement order and placements made by adoption agencies are also governed by the checklist.188 Culture/Religion Considerations The placement of a child of different race or ethnicity to that of their prospective adopters is a common occurrence; arising as a natural consequence of intercountry adoption, but also reflecting the diversity of multi-cultural England. There has been much contention regarding the respective merits of ‘colour blind’ or racially congruent policies but it is, perhaps, beyond contention that for an older child a placement which provides for a cultural affinity between with adopters and child, in accordance with Article 20(3) of UN CRC, is best for the latter’s long term welfare— subject to their agreement. The above noted deletion of the previous requirement to consider religious, racial, cultural and linguistic factors when making an adoption placement could, arguably, license a potentially serious infringement of such a child’s right to have the opportunity to develop an authentic cultural identity. However, even before the repeal of this provision, the courts had been unconvinced when faced with a claim from Muslim parents that adoption should be denied as this was contrary to their religious and cultural beliefs.189 Another, and increasingly common occurrence, is the admission of a child of a foreign national into the child care system and possibly on into the adoption process. There has been considerable legal and political debate accompanying some such cases, focusing on the importance of respecting the nationality of the child and their family and preventing the former’s assimilation into a different culture. Complaints from governments of countries such as Latvia, Slovakia and Bulgaria have centred on claims—which are not unreasonable—that if children of their nationals have to pass from the child protection system into the adoption process, then perhaps adoptive applicants from within the countries of origin should be considered. Such issues are now governed by Brussels II.190 This requires an immediate cross-border exchange of information on the circumstances in order to allow time for the negotiations necessary to explore placement options with the authorities in the relevant country. The need to comply with Brussels II was emphasised in Re E (A Child).191 Children with Complex Health/Social Needs As in other jurisdictions, an older child, one with siblings, or one with health or social care needs is comparatively disadvantaged—if not in effect discriminated 188 Subject

to the ruling in Re B-S [2013] EWCA Civ 1146, [2014] 1 FLR 1035. Re S; Newcastle City Council v. Z [2005] EWHC 1490 (Fam). 190 Council Regulation (EC) No 2201/2003 of 27 November 2003. 191 [2014] EWHC 6 (Fam). 189 See,

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against contrary to Art 2 of UN CRC—as the opportunity of adoption is much less available for them than for a young, healthy single child. Kinship Placement When considering the adoption option for a looked after child, an adoption agency is required to consider the child’s relationships with relatives; including the birth father even if he does not have parental responsibility.192 This provides an opportunity for practitioners to examine the merits of securing permanency through care arrangements, not necessarily, but possibly by way of adoption, within the child’s family. However, this may be dependent upon maternal consent.193 Following referral to the Adoption Panel (where appropriate)194 the recommendation and the agency decision, the adoption agency must then draw up a ‘placement plan’.

6.7.2 Placement Supervision There is a legal requirement to ensure that adoption placements are safeguarded and the duties to safeguard the child’s welfare interests are statutory, specific, prescriptive and comprehensive. They rest most rigorously upon all adoption agencies but apply also, though with less intrusiveness, to family adoptions from notification to hearing. During this period while parental responsibility remains vested in the birth parents it is shared with the placing agency.

6.7.2.1

Removal of Child

Where a consensual placement, made within six weeks of child’s birth, is terminated by parental retraction of consent within that period then the child must be removed and returned to the parent within seven days; unless a placement order is in effect or an application has been lodged. Otherwise, a parent may withdraw consent at any point up until the application has been lodged195 in which case the child must be returned to the parent within 14 days; subject to the former caveat. In such circumstances, if it has not already done so, the local authority may apply under s 22 for a placement order if it considers the grounds can be satisfied. However, from time of lodging an adoption application in court, all consensual placements and those made in respect of children subject to placement orders cannot be terminated without prior approval of the court.196 Before making the order the 192 Section

1(4)(f) of the 2002 Act as amended by the 2014 Act. R [2001] 1 FCR 238 where the court upheld a birth mother’s veto on any such overtures being made to her siblings or other relatives by the local authority. 194 See, further, the Adoption Agencies (Panel and Consequential Amendments) Regs 2012, SI 2012/1410. 195 Section 52(4) of the 2002 Act. 196 Section 37(a). 193 See, Re

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court must consider whether contact arrangements are necessary.197 It may then, or at any time during the placement, make a ‘child arrangements’ order198 subject to such conditions as it sees fit199 or authorise the agency to refuse contact.

6.8 The Hearing Adoption in the U.K. remains a judicial process and the judicial role is still largely as traditionally defined. While most other aspects of adoption in this jurisdiction have undergone radical change the one constant has been legislative recognition that the process is of such importance that it must be overseen and determined by the judiciary. Therefore, any decision-making by local authority or adoption agency which could pre-empt or potentially undermine that of the judiciary may be regarded by the latter as a challenge to the authority of the court. If the hearing establishes that the grounds of eligibility, suitability, duration of placement200 and consent are satisfied then an adoption order can be made. Specified criteria relating to an applicant’s age, marital status and domicile etc. must be satisfied; though habitual residence (of both applicants in a joint application) is an alternative even if they are not domiciled within the jurisdiction. All prospective adopters must have provided care for the child for a stated minimum period, which must have been subject to professional monitoring,201 and assessment reports are required in respect of all agency adoption applicants. Whether an adoption order is then made will depend not upon the availability or otherwise of consent—though always relevant—but on whether the paramountcy principle applied in conjunction with the welfare checklist indicates that it is the most appropriate order, and better than no order, for the child concerned. As McFarlane LJ (as he then was) put it in Re G (A Child)202 “the judicial task is to undertake a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare”. Evidence on welfare matters will be submitted to the court by the adoption agency involved and/or the CAFCASS officer. The making of an adoption order requires a predictive assessment of welfare and allows for legal compromises to be made to condition the future exclusiveness of the order. The 2002 Act also makes some significant changes to the powers and options available to the judiciary in England & Wales.

197 Section

27(4). 27(3). 199 Section 27(5). 200 Ten weeks in relation to a looked after child (s 42(2) of the 2002 Act). 201 Section 42(7). 202 [2013] EWCA Civ 965, at para. 50. 198 Section

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6.8.1 Where Consent Is Available The adoption process in the U.K. is gradually becoming less consensual.

6.8.1.1

Consent of Parent

The consent of the parent/s with parental responsibility must be obtained or dispensed with before the making of an adoption order203 and the paramountcy principle applies to dispensing with parental consent.204

6.8.1.2

Consent of a Minor

The consent of the prospective adoptee is not a legal requirement. However, the 2002 Act, s 1(4), requires the court to have regard to “the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding)”. The wishes of an older child regarding his or her proposed adoption have to be ascertained and taken into account and caselaw indicates that good reason will have to shown if an order is to be made contrary to those wishes.205

6.8.1.3

Consent of Unmarried Father

The general rule is that notice of pending adoption proceedings should be served on such a father and his views where feasible should be sought. The exception, as Butler-Sloss, P. once, with considered circumspection, advised, is when “for good reasons the court decides that it is not appropriate to do so”.206 This approach was emphasised in Re M (Adoption: Rights of Natural Father)207 which established that notification was the norm and avoidance required compelling reason. Subsequently the court has held that evidence of settled family life (even where the father had a history of violence, was presently in prison and had no knowledge of the birth of the child in question) required notice to be served on the father.208 The decision in Re L (Adoption: Contacting Natural Father)209 that an unmarried mother had the right not to name the father of her child (nor any member of her own

203 Section

47(2). 52(b). 205 Re D (Minors)(Adoption by Step-parent) (1981) 2 FLR 102. 206 Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646. 207 [2001] 1 FLR 745. 208 Re C (Adoption: Disclosure to Father) [2005] EWHC 3385 (Fam). 209 [2007] EWHC 1771 (Fam). 204 Section

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family), has further constrained the extent to which fathers without parental responsibility or direct care experience, in respect of the child in question, can influence maternal decisions in the adoption process.210

6.8.2 Where Consent Is Not Available In England & Wales, under s 52(1) of the 2002 Act, there are now only two grounds for dispensing with parental consent—whether in the context of agency or family adoptions. This may occur either: (a) on the traditional statutory ground that the parent or guardian cannot be found or is incapable of giving consent or; (b) that ‘the welfare of the child requires the consent to be dispensed with’. In practice, the ability of a non-consenting parent to challenge the making of an adoption order, where a placement order is in effect, will depend in the first instance on obtaining leave to be heard.211 This requires evidence of flawed proceedings212 or of a significant change in birth parent circumstances. In assessing whether to grant leave it has been said that leniency should be exercised because parents “should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable”.213

6.8.2.1

Leave to Contest Proceedings

Technically, following an agency placement, birth parents can step back into the process at the hearing to contest the adoption. However, to do so they must first obtain leave of the court,214 a formidable hurdle that in practice has been almost impossible to overcome.215 A parent can only be in the position of making an application under s 47(5) if there has been a care order, a placement order, the placement of the child for adoption and an adoption application has been lodged. Then, as Wall LJ explained in Re P (Adoption: Leave Provisions) 216 : An application for leave to defend adoption proceedings under s 47(5) of the 2002 Act involves a two-stage process. First of all, the court has to be satisfied, on the facts of the case, that there has been a change in circumstances within s 47(7). If there has been no 210 See,

Re A, B and C [2020] EWCA Civ 41 for the framework to be applied in addressing such situations. 211 Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616. 212 Re H (A Child) [2015] EWCA Civ 1284. 213 CH v London Borough of Merton [2014] EWHC 3311 (Fam) at para 6. 214 Adoption and Children Act 2002, s 47(5). 215 The test must be reasonable, the following are now held to be excessive: “exceptionally rare circumstances” in Re W (Adoption; Set aside and leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153; and “stringent” in Re C (A Child) [2013] EWCA Civ 1431. 216 [2007] EWCA Civ 616, [2007] 2 FLR 1069.

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change in circumstances, that is the end of the matter, and the application fails. If, however, there has been a change in circumstances within s 47(7) then the door to the exercise of a judicial discretion to permit the parents to defend the adoption proceedings is opened, and the decision whether or not to grant leave is governed by s 1 of the 2002 Act. In other words, ’the paramount consideration of the court must be the child’s welfare throughout his life’.217

Even if the parents are able, on the facts, to identify a change in circumstances sufficient to make it appropriate for the judge to consider whether or not to exercise his discretion to permit the parents to defend the adoption proceedings, the paramount consideration of the court in the actual exercise of that discretion must be the welfare of the child throughout his or her life. The probability of a resumption of parental care being judged compatible with the paramountcy principle is very low—such a prospect fades in direct relation to the length of the placement which, under s 42(2), will not be less than 10 weeks and may well have lasted for a year or more. Even when there has been “an astonishing change in circumstances,” as in Re B-S (Children),218 leave to challenge an adoption application may be refused; which in fact it was, thereby probably overruling the Wall rationale.

6.8.2.2

Contested Child Care Adoptions: The Grounds

While State intervention and admission of a child to the public child care system are governed by the Children Act 1989, with specific reference to the significant harm threshold, the passporting of such a child into the adoption process is governed by the Adoption and Children Act 2002. The link between the two is provided by the welfare test. Under s 52 of the 2002 Act the need for parental consent may be dispensed with by applying exactly the same test as was applied when authorising the placement: unless concrete evidence can be adduced to show a significant change in circumstances the same outcome is a foregone conclusion. In Re B-S and subsequently in Re R (Children),219 the judiciary expressed concern regarding the “lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children.” As Munby LJ stressed,220 “the judge must keep at the forefront of his mind the teaching of Re B”221 this being that “orders contemplating non-consensual adoption—care orders with a plan for adoption, placement orders and adoption orders—are ‘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’, they are ‘the most extreme option’, a ‘last resort—when all else fails’, to be made ‘only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare”. Over 217 This

must now be read subject to the ruling in Re B-S (Children) [2013] EWCA Civ. 813. EWCA Civ. 813. 219 [2013] EWCA Civ 1018 at para 20. 220 Ibid. at para 22. 221 In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. 218 [2013]

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the following few years, this admonition had a chastening effect on child care adoptions, sharply reducing the number of annual applications submitted, which in turn prompted policy and legislative initiatives aimed at overcoming what had become a judicial line drawn in the sand.

6.8.2.3

Contested Family Adoptions: The Grounds

Under s 52(1) of the 2002 Act, the same two grounds for dispensing with parental consent apply in the context of a family as in a child care adoption: either (a) the parent or guardian cannot be found or is incapable of giving consent or (b) that ‘the welfare of the child requires the consent to be dispensed with’. Whether contested or not, adoption applications by family members may well be diverted at judicial discretion towards other private family orders—such as special guardianship—unless the applicant/s can show good reason why an adoption order is particularly appropriate.

6.9 Thresholds for Exiting the Adoption Process Since the introduction of the 2002 Act, the decision as to whether the court makes the order applied for, with or without conditions, or any other order or no order, will be determined by applying the paramountcy principle in conjunction with the welfare checklist.

6.9.1 The Welfare Interests of the Child The welfare interests of the child are determined through application of the “welfare checklist” which serves to identify the “substance” of welfare in relation to the child concerned, while the paramountcy test defines the weighting to be given to the sum total of such matters relative to all other considerations. The “no-delay” and the “noorder” principles must also be applied. The no-delay principle is reinforced by the provisions of s 109, which require a timetable to be drawn up and specified steps taken to expedite it. Whether an adoption order can be made is determined in accordance with the statutory criteria relating to eligibility, suitability and consent. Whether it or a different order will be made, is determined by the particular welfare interests of the child concerned, after applying the ‘welfare checklist’. The Welfare Checklist Section 1(4) of the 2002 Act provides a list of considerations to which, among other matters, the court must have regard.

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(a)

The child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding). This conservative restating of the law relating to the capacity of a child to influence decisions taken concerning their welfare clearly avoids addressing consent issues. The child’s particular needs. This clause implicitly refers to the ‘physical, emotional and educational needs’ in s 1(3)(b) of the 1989 Act and its associated case law which must be interpreted in relation to the particular circumstances of the child concerned. The need to retain the child in the care context in which he or she has formed safe attachments and which offers the best chance of permanency will be crucial to addressing their emotional needs. The likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person. This novel requirement imposes on the court the duty to take a long-term view of whether adoption will continue to meet the needs of the subject throughout their adult life. Established case law indicates that even if adoption could only promote welfare in adulthood, this would be sufficient justification for making the order.222 The child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant. This catchall provision gives the court absolute discretion to determine the welfare factor most relevant to the circumstances of the child concerned. Any harm (within the meaning of the Children’s Act 1989) which the child has suffered or is at risk of suffering. Again, correlating the provisions of the 1989 and 2002 Acts strategically strengthens the child care context of modern adoption practice and maximises consistency of interpretation. It is to be noted that the definition of ‘harm’ in the 1989 Act has been broadened by the 2002 Act to include ‘impairment suffered from seeing or hearing the ill-treatment of another’223 to, in effect, allow for the possible non-consensual adoption of children who have suffered harm from witnessing domestic violence. The relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the question to be relevant, including––

(b)

(c)

(d)

(e)

(f)

(i) (ii)

(iii)

222 See,

the likelihood of any such relationship continuing and the value to the child of its doing so; the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs; the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

Re D (A Minor)(Adoption order: validity) [1991] 2 FLR 66. 31(9) of the 1989 Act as amended by s 120 of the 2002 Act.

223 Section

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269

This provision places a statutory duty upon court and local authority to assess the ability and willingness of relatives to undertake care responsibility for a child and also requires an assessment be made of the value to that child of any ongoing relationship with a relative. It is likely to be used particularly to safeguard established sibling relationships.

6.9.1.1

The Paramountcy Principle

Sections 1(1) and (2) of the 2002 Act, in compliance with Article 21 of UN CRC, now ensure that the best interests of the child are treated as the paramount consideration by the court at this stage. The principles of no delay224 and non-intervention225 are also incorporated, with the welfare checklist entrenched226 and some items deliberately calibrated across both the 1989 and the 2002 statutes to ensure consistency of interpretation.227 The items listed in the 2002 Act are neither exhaustive nor prioritised, nor are they necessarily applicable in all cases and the fact that the child, the birth parent/s, prospective adopters and/or others (including expert witnesses228 ) have a clear and positive view as to what constitutes ‘best interests’ will not prevent the court from imposing its own contrary decision. It is for the court to decide, after objectively applying the welfare checklist, on a projected basis in relation to considerations throughout the child’s life, what order if any satisfies the test of the paramountcy principle. While the importance of other factors will be taken into account, all will be subordinate to the paramountcy principle as interpreted and applied by the court. Religious Upbringing A parent’s views and wishes as to their child’s religious upbringing, once determinative,229 have long since ceased to be so but are still taken into account and given consideration in the family courts of this jurisdiction—as are the wishes of the child in this regard. Unquestionably, however, in relation to decisions affecting the upbringing of a child, this and all other considerations are now subject to the

224 Section

1(6).

225 Ibid. 226 Section

1(4). example, provisions s. 1(3)(a), (d) and (c) of the 1989 Act are replicated in s. 1(4)(a), (d) and (e) respectively of the 2002 Act. 228 See, Re B [1996] 1 FLR 667 where an appeal by a local authority, supported by the guardian ad litem, argued that the judge at first instance had erred in law in not acting on the unanimous opinions of the experts, all of whom urged that the child be placed for adoption. The court dismissed the appeal, citing with approval the comment of Lord President Cooper in Davie v. Magistrates of Edinburgh 1953 SC 34, 40 that “the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert” per Ward LJ at pp. 669–670. 229 In re Agar-Ellis, Agar-Ellis v. Lascelles (1883) 24 ChD 317. 227 For

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paramountcy principle.230 Munby LJ, in Re S; Newcastle City Council v. Z,231 when faced with the question whether, within the meaning of s 16(2)(b) of the Adoption Act 1976, a mother was unreasonably withholding her consent to the adoption of her son on the basis of religious beliefs that were reasonable and genuinely held, concluded that she was. He explained232 : Religious belief is no more determinative of whether a parent is acting reasonably than it is of whether something is in a child’s best interests. Whilst the court will no doubt be slow to conclude that a parent faithfully striving to follow the teachings of one of the great religions of the world is acting unreasonably, there is nothing to prevent the court coming to that conclusion in an appropriate case … context is everything.

The court is now even more likely to adopt this approach following the repeal by the Children and Families Act 2014, s 3, of the requirement that “due consideration be given to religious persuasion, racial origin and cultural and linguistic background” when placing a child for adoption. Consanguinity Re G (Children)233 can be seen as establishing something of a milestone in UK jurisprudence dealing with welfare interests in the context of a parent–child relationship. On the face of it the case concerned a disputed shared residence order made in favour of two women, whose lesbian partnership had broken down, in relation to two children born by artificial insemination to the one who now had primary care responsibility. However, it in fact led the court into an examination of ‘what is a parent?’ and ‘how much does the blood tie matter?’ Overturning the decisions of the court at first instance and the Court of Appeal, the House of Lords ruled that insufficient weight had been given to the “important and significant factor”234 of the biological link between the birth parent and children. In a judgment that claimed to be “raising no presumption in her favour”235 the birth mother, argued Baroness Hale, could not be viewed as being on the same footing in relation to the two children as the other ‘parent’ because she was “both their biological and their psychological parent … in the overall welfare judgment that must count for something in the vast majority of cases.” This important ruling—in keeping with ECtHR caselaw—would seem to establish the blood-link as a factor of some legal weight in differentiating between the rival claims of birth parents and others, whether in a same sex context, a child care and protection context, or otherwise. The decision is open to interpretation as raising the importance attached to the blood-link as a component of a child’s welfare interests (integral to developing an 230 See,

Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233 [2013] 1 FLR 677, at para 26. 231 [2005] EWHC 1490 (Fam), [2007] 1 FLR 861. Also, see, Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239, per Scarman LJ at paras 244–245. 232 Ibid. at para 56. 233 [2006] UKHL 43 [2006] FLR 629. 234 Ibid. at para 44. 235 Op cit, at para 44.

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authentic identity, with lineage and inheritance connotations etc.). It also resonates with a more traditional approach that recognizes the inherent stronger legal position of a birth parent (carrying a presumption of care rights and responsibilities) and thereby perhaps devalues the modern emphasis placed on attachment and psychological bonding. Subsequently, however, Lindblom LJ has warned that236 : The repeated reference to a ’right’ for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such ’right’ or presumption exists.

This refrain has been reiterated more recently by McFarlane LJ and others. In Re W (A Child),237 for example, the Court of Appeal heard an appeal by prospective adopters against the granting of an SGO in favour of grandparents of the child placed with them for a year—shortly after birth—and in respect of whom they had lodged an adoption application. The SGO application had been supported by the Child’s Guardian and an independent social worker both of whom had argued that the prospect of the child being retained within their family of origin must be presumed preferable to a third party adoption. The Court of Appeal, rejecting any such presumption and granting the appeal, warned against an automatic reliance on the phrase ‘nothing else will do’ from Re B as “some sort of hyperlink … to bypass the need for a full, comprehensive welfare evaluation of all the pros and cons”. Cultural Compatibilty Contemporary adoption involves older children to a much larger extent than formerly, many of whom will have had time to identify with a particular culture and/or ethnicity and may well have formed relationships with others from that background. Professional practice, in deference to equality principles, has tended to develop a ‘culture blind’ approach when matching prospective adopter/s and child; an approach now licensed by the above mentioned provision in the Children and Families and Act 2014, s 3. This approach would seem to breach the Article 20(3) UN CRC requirement that “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” when placing a child outside their family of origin. An adoption order should respect a child’s cultural identity and enable that identity to further develop; the older the child the stronger the presumption that cultural compatibility with adopter/s must be a factor in determining their lifelong welfare.

6.9.2 Representing the Child’s Welfare Interests In England & Wales, the welfare interests of a child in adoption proceedings will be represented by a CAFCASS officer accompanied by a social work report from 236 Re

W (A child) [2016] EWCA Civ 793 at para 71. See, also, Re H (A Child) [2015] EWCA Civ 1284, per McFarlane LJ at paras 89–94. 237 [2016] EWCA Civ 793. See, also, [2014] EWFC 47.

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the relevant agency. However, as before the introduction of the 2002 Act, there is no provision for automatic representation of a child’s legal interests by a solicitor, though in contested cases such interests will be asserted by the court making the child a party and enabling him or her to be represented by a solicitor. Expert witnesses may be called to give evidence. All family adoptions are subject to prior mandatory professional screening the results of which are judicially taken into account in determining welfare.

6.9.2.1

Voice of the Child

The 2002 Act, s 1(4), requires the court to have regard to “the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding)”. The wishes of an older child regarding his or her proposed adoption have to be ascertained and taken into account and case law indicates that good reason will need to shown if an order is to be made contrary to those wishes.238 However, the child would seldom have the opportunity to express these views either personally and directly or through a solicitor. In this jurisdiction, unlike many others for example Scotland,239 there is no specific legislative requirement that the child’s consent be obtained as well as his or her views. Moreover, the CRC in its 2016 report expressed concern that “many children feel that they are not listened to by their social workers … judges, personnel working with children in conflict with the law or other professionals in matters affecting them, including in family proceedings” and recommended that steps be taken to “ensure that children are not only heard but also listened to and their views given due weight by all professionals working with children”.240

6.10 The Outcome of the Adoption Process Section 1(6) of the 2002 Act requires the court to consider the whole range of powers available under both that legislation and the 1989 Act before making a decision. The same provision adds that the court should not make any order unless convinced that this would be better for the child than doing nothing.241 In conducting this exercise the court must also consider the bearing of Article 8 of the ECHR.242 238 See,

for example, Re D (Minors)(Adoption by Step-parent) (1981) 2 FLR 102. Adoption and Children (Scotland) Act 2007, s. 32. 240 (CRC/C/GBR/CO/5), 2016, op cit at paras 30(d) and 31(d). 241 Section 1(6) of the 2002 Act requires the court to be satisfied that adoption is a better option than any other available to the court while s 44(2)–(6) requires certain conditions to be met. 242 Particularly the judgments of the ECtHR in K and T v. Finland (2001) 36 EHRR 255, R and H v. United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236, and YC v. United Kingdom (2012) 55 EHRR 967. 239 See,

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6.10.1 Adoption Order In the U.K. the traditional unconditional, consensual, third party adoption order is becoming increasingly rare and in England & Wales has become more so following the full introduction of the 2002 Act. Adoption orders made in favour of parents and relatives had grown to form the major proportion of annual orders but more recently have decreased. They are currently decreasing further, as the 2002 Act has extended the range of alternative permanency orders so as to reduce inappropriate recourse to adoption. A step-parent, for example, can obtain parental responsibility for a stepchild by agreement with the birth parents or by court order. They thereby acquire all the legal rights and responsibilities for their stepchild, and share parental responsibility with their spouse. Alternatively, a child arrangements order will vest parental responsibility in a step-parent. The court now has to be convinced that particular circumstances exist which warrant awarding a step-parent the more absolute powers of an adoption order. In child care adoption cases the Court of Appeal243 has stressed that the proper test for dispensing with parental agreement is whether the child’s welfare requires adoption as opposed to something short of adoption. As Wall LJ put it244 : A child’s circumstances may ’require’ statutory intervention, perhaps may even ’require’ the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily ’require’ that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is ’required’ is adoption.

There have been inumerable judicial statements echoing this sentiment, but it was endorsed most emphatically in the case of Re B-S 245 and in Re B246 when Baroness Hale pronounced: We all agree that an order compulsorily severing the ties between a child and her parents can only be made if “justified by an overriding requirement pertaining to the child’s best interests”. In other words, the test is one of necessity. Nothing else will do.

Again, in Re V (Children), Black LJ stressed the need to justify adoption as opposed to any other disposal option—such as longterm foster care—when he noted that social workers do not always see this as necessary: “I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering”.247 More recently, in Re W (A child),248 Lindblom LJ reprised the “nothing else will do” benchmark 243 See, 244 Re

SB v. A County Council; Re P [2008] EWCA Civ 535. P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 at para

126. 245 [2013] EWCA Civ 1146. 246 [2013] UKSC 33, at para 215. 247 [2013] EWCA Civ 913, at para 88. 248 [2016] EWCA Civ 793.

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for falling back on adoption as the appropriate default option when other possible arrangements for a child in care arebeing considered. He offered the view that “the phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child’s welfare”.249 Significantly, however, he added that the phrase “is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR”. Essentially, human rights considerations must apply as a backstop when adoption and other options are being considered for a child in care.

6.10.1.1

Adoption Order Accompanied by an Order for Contact

In almost all domestic adoptions there is now some form of ongoing contact between the child and their birth parent and/or with other members of the family of origin. The issue of an adoption order accompanied by a ‘child arrangements’ order (previously a contact order), most usually directing specified contact arrangements between the child and members of his or her family of origin, has also become common in recent years as the courts strive to ensure that each adoption order fits the particular welfare interests of the child concerned. Post-adoption contact, most often indirect by way of an exchange of letters, phone calls etc. but possibly including face-to-face meetings between adoptee and the birth parent/s and perhaps siblings, is now the accepted norm in domestic adoptions and is considered particularly important in the context of child care adoptions. An unwillingness to accept post-adoption contact would be a contra-indicator for adopter approval; though it would be very rare indeed for such contact to be judicially ordered. This development has accelerated in the wake of the 2002 Act because of the requirement in s 46(6) that the court consider the necessity for post-adoption contact arrangements. The National Adoption Standards also contain provisions explicitly addressing the need for possible post-adoption contact to be explored with the child, his or her birth parent/s and other members of the birth family. Further reinforcement for post-adoption contact was made by the insertion through the Children and Families Act 2014, s 9, of sections 51A and 51B into the Adoption and Children Act 2002 permitting the making of a contact order at any time, including any time after an adoption order. While the child, the local authority, or the adoptive family may make a s 51A application for post-adoption contact without leave of the court, the birth family require leave. In deciding whether or not leave should be granted, the court must consider the extent to which allowing such contact would disrupt the child’s new life, the applicant’s connection to the child, and any representations made to the court by the child or the adoptive family. The court may make an order, under s 51A, prohibiting contact. That any arrangements for contact should in future be for the court to make was stressed by the Court of Appeal in Re P (Placement

249 Ibid.

at para 68.

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Orders: Parental Consent).250 It is clear, however, that the traditional approachl— ‘the imposition on prospective adopters of orders for contact with which they are not in agreement is extremely unusual’251 —still stands.252

6.10.2 Alternative Orders If the court should consider, during the course of adoption proceedings, that grounds of significant harm may exist then it can, as before, refer the matter to the local authority. On a subsequent application from the local authority, the court may in turn issue a care order or a supervision order where the significant harm grounds are satisfied and where it considers this to be more appropriate than any other order or no order at all. Alternative permanency orders are available, reinforced by a directive requiring the court to ‘always consider the whole range of powers available to it’ under both the Acts of 1989 and 2002.253 These alternatives include: no order; the special guardianship order,254 but the court must first consider whether it should couple this order with a contact order255 ; a long-life residence order that will endure in respect of the child concerned until his or her 18th birthday256 ; a parental responsibility order in favour of a step-parent applicant257 ; or, finally, a local authority foster parent may apply for any s 8 order258 or an extended residence order or a special guardianship order where a child has lived with their foster parents for a minimum period of one year.259

6.10.2.1

Special Guardianship Order

Section 14C(1), inserted into the Children Act 1989 by s 115 of the Adoption and Children Act 2002, provides that a named person may be appointed the ‘special guardian’ of a child and that such an order may be made by judge on his or her own motion.260 The 1989 Act was further amended by the 2002 Act to introduce s 14(f) requiring local authorities to assess whether any of the parties to a guardianship 250 [2008]

2 FLR 625. C (A Minor)(Adoption Order: Conditions) [1989] AC 1. 252 See, for example, Re B (A Child: Post-adoption contact) [2019] EWCA Civ 29. 253 Section 1(6). 254 Section 115; amending s. 14 of the 1989 Act. 255 Ibid. 256 Section 114; amending s. 12 of the 1989 Act. 257 Ibid. 258 Section 10 of the 1989 Act as amended by Sched 3 of the 2002 Act. 259 Section 14A(5)(d) of the 1989 Act as amended by the 2002 Act. 260 See, also, Special Guardianship Regulations 2005, SI 2005 No. 1109. 251 Re

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order were in need of support services. The court has the power to impose a special guardianship order on an unwilling party to the proceedingsas legislatively intended, this order has proven to be a viable alternative to adoption.261 This order cannot be made until the court has first considered a mandatory social work report submitted by the local authority.262 It may be accompanied by a ‘child arrangements’ order and is likely to be particularly relevant for older children or those being cared for by foster parents (the order discharges the care order) or relatives, for whom the draconian effects of total legal separation from birth family would be inappropriate.263 In S v. B and Newport City Council; Re K,264 for example, a special guardianship order together with a prohibited steps order were issued, instead of the adoption order sought, as this was viewed by the court as a more appropriate form of authority for grandparents who were anxious to secure existing care arrangements from possible parental interference. In Re S Wall LJ265 , noting that the legislation does not prescribe different sets of circumstances in which adoption or an SGO would be appropriate, stated that the White Paper gave the following helpful illustrations of some circumstances in which SGO’s would be useful: where older children do not wish to be legally separated from their birth families; where a child is being cared for on a permanent basis by members of the child’s wider family; where a child is from a particular ethnic or religious community and cultural difficulties make an adoption order less likely to be honoured; and where an unaccompanied asylum-seeking child needs a secure, permanent home, but maintains strong attachments to a family abroad. The particular merits of this order, relative to adoption, were considered in Re S (Adoption Order or Special Guardianship Order)266 where it was noted that: “it is a material feature of the special guardianship regime that it is ‘less intrusive’ than adoption … it involves a less fundamental interference with existing legal relationships … in some cases, the fact that the welfare objective can be achieved with less disruption of existing family relationships can properly be regarded as helping to tip the balance”.267 Unlike adoption, however, it does not provide a secure lifelong legal relationship between parents and child, nor does it grant inheritance or citizenship rights. The relative merits of the two orders were considered more recently in Re T (A Child: adoption or special guardianship),268 which concerned a child in kinship care with two older unadopted brothers, in respect of whom McFarlane LJ advised that where a very 261 In

2014, 3330 children left care under a special guardianship order compared with 5,050 who were adopted; in 28 local authorities, special guardianship was used more frequently than adoption. 262 Ibid., Regulation 21, which sets out the matters to be dealt with in all reports for the court. 263 The majority of special guardianship orders are made in favour of former foster carers. By April 2007, some 359 had been made: 261 in public law proceedings, 89 in private and 9 in adoption proceedings. By 2013 the total had risen to 2740. 264 [2007] 1 FLR 1116. 265 Re S (Special Guardianship Order) [2007] EWCA Civ 54. See, also, Re M-J [2007] EWCA Civ 56. 266 [2007] 1 FLR 819. 267 Ibid. at para 49. 268 [2017] EWCA Civ 1797.

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young child had a need for a full, lifelong relationship then adoption was the more appropriate order. The Court of Appeal, in Re W(A Child),269 has cautioned against any approach based on a presumption that this order is to be preferred to adoption in cases involving a family placement. It is likely that long-term carers will seek adoption in preference to special guardianship because of the additional security and greater social acceptance offered by the former.270

6.10.2.2

Child Arrangements Order

Available under s 12 of the 1989 Act (as amended by s 114 of the 2002 Act), this order—previously known as a Residence Order—may be made in favour of any person who is not a parent or guardian of the child concerned and may continue until the latter attains adulthood.

6.10.2.3

Parental Responsibility Order

Available under s 4A of the 1989 Act (as inserted by the 2002 Act), this order may be made in favour of a step-parent—married to the birth parent—as an alternative to the more informal means of acquiring parental responsibility through agreement with the birth parent/s. It provides for an ongoing sharing of parental responsibilities with birth parents.

6.11 The Effect of an Adoption Order A full adoption order remains, as before the introduction of the 2002 Act, the most absolute and irrevocable of all orders affecting children: there are no provisions relating to any possible variation or revocation; also an adoption order automatically extinguishes any pre-adoption contact order.271 However, not all its legal characteristics in relation to the parties concerned are as immutable as they were traditionally.

269 [2016]

EWCA Civ 793.

270 See, Re S (Special Guardianship Order) [2007] EWCA Civ 54 [2007] 1 FLR 819; Re AJ (Special

Guardianship Order) [2007] EWCA Civ 55 [2007] 1 FLR 507; Re M-J (Special Guardianship Order) [2007] EWCA Civ 56 [2007] FLR. 271 The Adoption and Children Act 2002, s. 46(2)(b).

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6.11.1 The Child An adoption order confers upon the child concerned the status specified in s 67 of the 2002 Act and traditionally associated with adoption. This requires that he or she ‘is to be treated in law as if born as the child of the adopters or adopter’ and as ‘the legitimate child of the adopters or adopter’.272 It also entails acquiring the nationality,273 domicile and residence of the adopters and an entitlement to inherit from their estate.274 In respect of the latter, the law remains as classically stated in Halsbury275 : Where, after an adoption order has been made, the adopter or adopted person or any other person dies intestate as to any property (other than property subject to an entailed interest under a disposition made before the date of an adoption order), that property devolves as if the adopted person were the child of the adopter born in lawful wedlock.

Note, however, that registration of a foreign adoption in the Adopted Children Register does not give an automatic entitlement to British citizenship, unless it is made in a country which has ratified the 1993 Hague Convention on Intercountry Adoption, at least one of the adopters is a British citizen, and both adoptive parents are habitually resident in the U.K. This complies with Article 21(c) of the 1989 United Nations Convention on the Rights of the Child. In Re B (Adoption Order: Nationality)276 the House of Lords held that an adoption order should not be recognised if it was obtained solely to acquire the right to live in the U.K. and where the child’s welfare would not benefit from the adoption. Some distinctions traditionally made by the law between an adopted and a ‘natural’ child have been maintained.277 In Hand v. George278 Justice Rose found that David Hand and Hilary Campbell, the adopted ‘children’ of their father Henry Hand, were entitled to inherit part of their father’s estate despite the fact that they would be debarred under current domestic adoption legislation because the law prevailing at 272 See, further, Chap. 4, sections 66–76, Status of Adopted Children, the Adoption and Children Act 2002. 273 See, s 1(5) of the British Nationality Act 1981. However, if the child is adopted in a “designated list” country whose adoption orders the U.K. Government recognises, the child will not automatically receive British citizenship and will have to apply for it to the Home Secretary. Countries included in this designated list are predominantly Commonwealth countries, United Kingdom Dependant Territories and E.U. Member States, whose adoptions the U.K. Government have deemed to be capable of recognition. The fact that U.K. intercountry adoption legislation does not provide automatic British citizenship for children adopted by British citizens in designated countries has attracted criticism. 274 See, sections 69–73 of the 2002 Act. 275 See, Halsbury’s Laws of England (3rd ed), 1956, Vol 21, p 239, at para 518. 276 [1999] 1 FLR 907. 277 See, para 30 of Sched 4 of the Sexual Offences Act 2003, which amends the 2002 Act to continue the legal exception to incest where sexual relations occur between an adopted brother and sister aged 18 or more. Also, s 74(1) leaves intact the traditional rule relating to consanguinity and prohibited degrees of relationship. 278 2017 EWHC 533 Ch.

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the time the will had been drawn up excluded an adoptee from the definition of ‘child of the testator’. Justice Rose, however, ruled that ‘the court must respect their Convention right under Article 14 in conjunction with Article 8 of the Convention not to be discriminated against’.279

6.11.2 The Birth Parent/s The effects of a full adoption order on the legal standing of the birth parent/s are largely as traditionally defined. Section 46 of the 2002 Act states that the order operates to extinguish “the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order” and any other order or duty unless specifically exempted. However, unlike traditional orders, adoption may now be qualified by orders providing for ongoing contact arrangements between the child and his or her birth parent/s and/or other members of their birth family.

6.11.3 The Adopters Again, as before the 2002 Act, the effect of an adoption order is to vest the adopters with all parental rights, duties and responsibilities in respect of the adopted child. The traditional absolute and exclusive nature of the order may now, however, be compromised by an order permitting post-adoption contact arrangements while its traditional privacy characteristic may equally be compromised by ongoing public health and social care support services.

6.11.4 Revocation of an Adoption Order The only cases where adoption orders have been set aside are where there has been a fundamental procedural irregularity280 ; an injustice will not suffice. In Re B281 (Adoption: Setting Aside)282 it was held that, in addition to the lack of any statutory 279 Citing

ECtHR rulings in Marckx v. Belgium, 1979) and Pla and Puncernau v. Andorra in 2004. for example: Re K (Adoption and Wardship) [1997] 2 FLR 221; and Cameron v. Gibson [2005] ScotCS CSIH83 (24 November 2005) when the Inner House of the Court of Session in Scotland reversed an earlier decision of the Court of Session in Cameron v. Gibson [2003] ScotsCS 298 (2 December 2003) and declared invalid a 1950 adoption decree because the proposed adoptee reached 21 years of age hours before the adoption order was made and the relevant legislation required that he be under 21 when the order was made. 281 Webster v Norfolk CC [2009] EWCA Civ 59. 282 [1995] 1 FLR 1. 280 See,

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power, the High Court has no common law power or inherent jurisdiction to set aside or nullify an adoption order. The Court held that as a matter of common law “the edifice of adoption would be gravely shaken if adoption orders could be set aside …”.283 This decision was upheld by the Court of Appeal in Re B (Adoption: Jurisdiction to set aside)284 when Sir Thomas Bingham MR noted that: The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties.

6.12 Post-adoption Support Services The 2002 Act introduced the concept of local authority support services, more comprehensive and with wider applicability than previously available. These are to be provided at any time (ie both pre and post-adoption) and for all parties or others involved in any type of adoption.285 In relation to adoption services for looked after children, the provisions of the 2002 Act are reinforced by the National Standards which apply quite specific requirements in relation to matters such as timescales for service provision, extent of information to be provided etc. More recently, the Children and Families Act 2014 introduced statutory rights to employment leave and pay for parents and adopters. The impact of these services and the necessary accompanying professional intrusion will over time accelerate the changing character of adoption as it becomes more of a public and less a private family law proceeding.

6.12.1 Adoption Support Services Section 3(2)(b) of the 2002 Act requires all local authorities to ensure the availability of specified adoption support services. Section 4 of that Act places upon all local authorities: a duty to respond to any request for assistance from a party to an adoption by carrying out a needs assessment; but a discretion as to whether or not they provide any related services.286 Subsequently, the Adoption Support Services Regulations for England (SI 2003) and its successor the Adoption Support Services Regulations 2005 (SI 2005 No 691) gave adopters, adopted children and birth relatives the right to request an assessment 283 Ibid.

at p. 7. 2 FLR 1. 285 Following the 2002 Act, the Dept of Health issued a consultation paper entitled The Draft Adoption Support Services (Local Authorities)(Transitory and Transitional Provisions)(England) Regulations and Draft Accompanying Guidance, December 2002. See, also, Dept of Health, Providing Effective Adoption Support. 286 See, Adoption Support Services Regulations 2005 (SI 2005 No 691). 284 [1995]

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of need regarding contact arrangements and it requires agencies to maintain services to assist such contact arrangements.287 The Regulations require local authorities to appoint an adoption support services adviser, to be responsible for the provision of advice and information to all persons affected by an adoption or proposed adoption. In respect of child care adoptions, the provisions of the 2002 Act are reinforced by the National Standards which apply quite specific requirements in relation to matters such as timescales for service provision, extent of information to be provided etc. Services to birth relatives are defined as including assessment, information and advice, support groups, therapy, counselling, intra/inter agency liaison, assistance with indirect contact, casework and advocacy. Services to adopters, many struggling to cope with the emotional stress of catering for the needs of severely traumatised children often with severe behavioural problems, consist both for professional input (advice from psychologists, occupational therapists etc.) and respite. The HSS response is not always coherent or sufficient.288 The 2014 publication of the Bristol University research study into adoption outcomes in England revealed a reluctance on the part of local authorities and adoption agencies to pay for the specialist support and respite care services that were often desperately needed by overly stressed adopters.289 Adoption Support Fund This fund is available for children living in England up to and including the age of 21 (or 25 with a Statement of Special Educational Needs or Education Health & Care Plan) who: • are adopted and were previously in local authority care in England, Wales, Scotland and Northern Ireland; or • are adopted from overseas; or • are under a Child Arrangement Order (CAO) to enable the assessment of a potential special guardian, while the CAO is in force; or • are subject to a Special Guardianship Order and were previously in care. The amount per child per year is capped at £5000 for therapy, as well as a separate amount of up to £2500 per child if specialist assessments are needed. Therapy and assessment above this amount and up to a limit of £30,000 requires match funding by the local authority.

6.12.1.1

Adoption Support Agency

This, as defined by s 8(1) of the 2002 Act, is ‘an undertaking, the purpose of which, or one of the purposes of which, is the provision of adoption support services’. 287 Also,

see, the Adoption Support Services Regulations 2005. further, at: https://internationaladoptionguide.co.uk/news/post-adoption-support.html. 289 See, further, the Hadley Centre for Adoption and Foster Care Studies, ‘Beyond the Adoption Order: Challenges, Interventions and Adoption Disruption’, Bristol University, 2014. 288 See,

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Section 8(3) of the 2002 Act amends the Care Standards Act 2000 to permit the registration of independent adoption support agencies in addition to those established by adoption agencies.

6.13 Information Disclosure, Tracing and Re-unification Services The right of one party to access information given in confidence by another has always been a fraught issue in law and has certainly been so throughout the statutory life of the adoption process. It is a right that may be crucial to personal identity and is therefore protected by the ECHR. For example, in Rose v. Secretary of State for Health and Human Fertilisation and Embryology Authority290 it was found that the claimants’ request for identifying and non-identifying information relating to their genetic background (both claimants had been born as a result of the AID process) engaged Article 8. The 2002 Act introduced some changes to the law previously governing this sensitive matter.

6.13.1 Information Disclosure The role of an adoption agency has now become of central importance as regards the disclosure of information held in the Registers; although a recent case has highlighted the importance of accessing court files as a means of acquiring identifying information.291 The responsibilities of the Registrar General continue as much as before in relation to compiling information in the Adopted Children Register and the Adoption Contact Register.

6.13.2 Adoption Registers The registration of adoption data is of central importance to any adoption process. The information stored therein can be crucial to the forming of an adoptee’s authentic sense of identity but who may gain and who may deny access is often highly contentious.

290 [2002] 291 See

EWHC 1593 (Admin), [2002] 2 FLR 962. Re X [2014] EWFC 33.

6.13 Information Disclosure, Tracing and Re-unification Services

6.13.2.1

283

The Adopted Children Register

This register of all adoptions completed in England & Wales, was first introduced in 1927, is kept in the General Register Office and is maintained by the Registrar292 who uses an index to cross-reference entries marked “adopted” in the main register of live births with entries in the Adopted Children Register. During 2012, some 5206 adoptions were registered following court orders made in England (4835) and Wales (371), representing an increase of 9.8% on the 4740 adoptions entered in 2011.293 The Register itself is not open to public inspection or search. However, the index of the Register is available for inspection and anyone can apply on payment of a fee for a certified copy of an entry in the register relating to a child who has reached 18.294 Access to the information necessary to connect corresponding entries made in the two registers is governed by s 79 of the 2002 Act which performs a dual function. It requires an adoption agency to request the Registrar General to make available that information in respect of a named adopted person. It also permits the Registrar General to divulge on request to any adopted person (i.e., who has attained their 18th birthday) information identifying the adoption agency involved in their adoption.

6.13.2.2

The Adoption Contact Register

This register,295 again maintained by the Registrar General, was introduced in 1991 and is not available for public inspection and search, although it is possible to apply for certified copies of entries. As of 30th June 2001, there were 19,683 adoptees and 8492 relatives on the register for England and Wales, and 539 successful matches had been made.296 Before 30 December 2005, it held contact details of adopted adults and birth relatives who wanted to be put in contact with each other. If a match was made by the Registrar then the adopted adult would be informed of the birth relative’s contact details. Since 30 December 2005, the role of the Register has been expanded by the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005 to permit a more nuanced exercise of rights in respect of access.297

292 This facility has a history of being very popular; by 1999 some 70,000 people had sought adoption

related information from the Registrar General. BAAF, at: https://www.baaf.org.uk/res/statengland. 294 Indexes to the Adopted Children’s Register are available for consultation at the Family Records Centre, 1 Myddleton Place, London, EC1R IUX. For information about applying for copies of adoption certificates, see further at: https://www.gov.uk/adoption-records. 295 Established by Sched 10 of the Children Act 1989. 296 See, BAAF, at: https://www.baaf.org.uk/res/statengland. 297 See, further, the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005, at: https://www.legislation.gov.uk/uksi/2005/888/regulation/9/made. Also, see, https://www.gov.uk/government/news/relatives-of-adopted-adults-now-able-totrace-family-tree. 293 See,

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6.13.3 Conditional Access A charateristic of the adoption process in this jurisdiction is the presumption, prevailing since 1975, that on reaching the age of 18, every adopted person has had the right to access their original birth certificate and any information held by the relevant adoption agency. This entitlement distinguishes the adoption process from that of the U.S. and other jurisdictions in that generally an adopted person has a right to access identifying information. Adoptees have the further right to specify, in the above Adoption Contact Register, those birth relatives with whom they do or do not wish to have contact: they may enter an absolute or a qualified veto.298 However, even an absolute veto may not necessarily terminate all enquiries. An intermediary agency may discover a wish for no contact on the Register, but nonetheless proceed. This may be the case where the birth relative has important information to pass on, e.g., about a hereditary or genetic medical condition, or where the birth relative is terminally ill.

6.13.4 Tracing and Re-unification Services Sections 54 and 56–65 of the 2002 Act govern the provision of such services. Adoption agencies are of central importance and the aforementioned sections define the responsibilities of an adoption agency in relation to record keeping, information disclosure, making contact arrangements and providing counselling.

6.13.4.1

The Adoption Agency

The 2002 Act places the adoption agency in the driving seat for all post-adoption information disclosure and contact purposes including adoptee access to their original birth certificate.299 It has been designated the single point of access to identifying information on the basis that an adoption agency is best placed to provide the support and counselling that may also need to accompany disclosure.

6.13.4.2

The Role of Adoption Support Agencies

Under s 98, a registered adoption support agency is authorized to seek access to the information held in registers or in court or adoption agency records necessary to advise parties to a pre-1975 adoption on matters relating to identity information and possible contact. Section 98 also gives adult birth relatives a right to request such 298 See,

further, the Adopted Children and Adoption Contact Registers 2005. further, the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005.

299 See,

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an agency to discover information and/or make approaches to adopted adults for the purposes of seeking information about them and/or for future contact or reunion. This service can only be provided by a registered adoption agency (either local authority or voluntary) or a registered adoption support agency (a new type of independent support agency created by the 2002 Act).300 It can only be requested by adopted adults (i.e. over the age of 18) and adult birth relatives (‘relative’ being defined as “a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage). The information sought must in respect of an adult adopted before 30 December 2005. The agency has a general discretion not to proceed with any request, “where it would not be appropriate to do so”. In coming to this decision, the agency must have regard to the following factors: • the welfare of the applicant (i.e., the birth relative), the subject (i.e., the adopted adult) and any other persons who may be identified or otherwise affected by the application (i.e. the adoptive parents, siblings and wider family); • any views of the appropriate adoption agency (i.e., the one that arranged the adoption or the one that now holds the adoption records); • any information obtained from the Adoption Contact Register; and • all other circumstances of the case. Any adult adopted on or after 30 December 2005, or a birth relative of such an adopted person, has a right to challenge a decision made by an adoption agency in relation to information disclosure by making application to an Independent Review Mechanism for a review of that decision.301

6.13.4.3

Agency Records

The 2002 Act introduced new provisions regarding the information that must be kept by: • adoption agencies in relation to a person’s adoption; • information that adoption agencies must disclose to adopted adults on request (‘protected information’); • information that courts must release to adopted adults on request; and • information that adoption agencies may release to adopted adults, birth parents and others. These provisions only apply to adoptions that take place after the Act was implemented. The 2005 Regulations placed an additional duty on all adoption agencies 300 For further information on the services provided by such agencies see www.adoptionsearchreun

ion.org. 301 See, further, the Dept of Education, Independent Review Mechanism, at: https://www.independe

ntreviewmechanism.org.uk/adoptionrecords.

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to keep records on children placed for adoption for at least 100 years and to police access to the information contained therein. Adopted adults can formally register a qualified or absolute veto with the appropriate adoption agency. An adopted adult can apply to the appropriate adoption agency for ‘protected information’ about a person involved in an adoption, such as the adopted person, his birth parents or the adoption social worker. Protected Information This is defined as any identifying information sought by someone other than the person it is about. It would include names, residential, educational and employment addresses, case records, legal and medical information as well as photographs and audio-visual material. It also includes any information held by an adoption agency which, was obtained by the Register General or any other information that would enable an adopted person to obtain a certified copy of his birth record or any information about an entry in the Adoption Contact Register about the adopted person.

6.13.4.4

Agency Disclosure Duty

Adoption agencies have discretion to disclose information, which is not ’protected information’, to an adult adopter or other persons including the birth parents—e.g. background information about the child’s progress. Section 60 enables an adopted person to obtain the following: • the information necessary to obtain his or her birth certificate; • any information given to the adoptive parents on placement; and • a copy of any “prescribed document” held by the court. Section 61 outlines the four stage process whereby an adoption agency responds to a request from an adopted person for information other than that governed by s 60: • application made; • adoption agency considers whether application is appropriate; • if so, then it must take all reasonable steps to contact and ascertain the views of any other person to whom the information relates; and • in the light of the particular circumstances, the adoption agency must decide whether or not to disclose the information sought. The right to disclose or refuse disclosure rests with the adoption agency although its decisions will be subject to possible review by an Independent Review Panel established by the government. Regulations further specify matters such as type of

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information, conditions for disclosure etc. while the National Adoption Standards also provide guidance relating to the provision of information disclosure services. Veto on Information Disclosure The right of an adoptee or birth relative to challenge a decision made by an adoption agency to refuse to disclose information, by applying to an Independent Review Panel, is restricted to adoptions made on or after 30 December 2005. In effect this continues in force the discretionary right of adoption agencies to refuse disclosure of identifying information (usually out of respect for the guarantee of confidentiality given to a relinquishing mother) in relation to by far the majority of adoptions. Moreover, adopted adults can now formally register a qualified or absolute veto with the appropriate adoption agency.

6.14 Conclusion Adoption legislation came late to this jurisdiction and the volume of orders has faded considerably in recent years, but nonetheless the domestic adoption process has become sophisticated, highly regulated and acquired some distinctive characteristics. A particular feature of this process has been the extent to which it has relied upon its own public child care system rather than on other countries as its primary source for prospective adoptees. While step-parent and kinship adoptions continue to be significant, for most purposes it is child care adoption that is now legally prominent. A recent report, Suffer the Little Children,302 found that: the number of children currently in care in England is greater than it has been since 1985 and child care adoptions, more numerous than in any other European country, now stand at the highest level since data was first collected; 90% of adoptions occur without parental consent; from 2001–2016 the number leaving care to live with adopted parents or special guardians increased from 87,090 to 143,440—a rise of 65%. It suggests that the continued increase in the childcare population, despite increase recourse to adoption and guardianship, indicates that the primary change agent has been a lowering of the threshold for State intervention in parental care. This interpretation is reinforced by the research of Featherstone, Gupta and others who draw attention to the current emphasis placed on managing risk and risk aversion in child protection.303 Adoption in England & Wales now sits, uncomfortably, at the crossroads of public and private family law. This is a juncture at which parental responsibilities may be consensually relinquished by birth parents and assumed by others or coercively removed and transferred. Adoption is intimately linked into the family law framework leading to that point and reflects many of the more pervasive principles and pressures currently influencing practice within the broad body of family law. In particular, 302 Bilson,

A., Suffer the Little Children, Legal Action for Women, London 2017.

303 Featherstone, B., Gupta, A., et al, The Future of Child Protection: A Social Model, Policy Press,

2017.

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changes to the legal functions of adoption are indicative of those occurring elsewhere in family law. There is now an unmistakable emphasis on ensuring that adoption satisfies a public interest requirement that this means of providing for the future upbringing of children is subject to much the same controls and supports, and is tested against alternative welfare options, as are other statutory means of doing so. This is evident in the threshold criteria marking each stage of the adoption process. It is evident also in the types of bodies, forums and rules to which the participants are subject. Mostly, it is apparent in the use of the welfare principle to ensure that private purposes pursued by parents and adopters and public purposes pursued by a local authority now respect the best interests of the child as the paramount consideration, not just for his or her childhood, but as projected for their lifetime. This may entail compromises or additions to the order issued by the court that would not have been previously contemplated in adoption proceedings. Convention case law clearly indicates that local authorities will now have to exercise great care in determining the degree of authority needed to justify any future such intervention. Sufficient evidence must exist for actions such as the precipitate removal of a child from his or her family home, for justifying a care order rather than a supervision order application, for using a care order rather than any other or no order to supervise home-based parenting and most importantly for warranting the permanent severing of parental rights through recourse to non-consensual adoption rather than availing of a lesser statutory power such as a Special Guardianship Order.

Chapter 7

Ireland

7.1 Introduction In Ireland the law of adoption, now consolidated in the Adoption Act 2010,1 has provided the legal framework for a practice that has seen some 44,603 children adopted2 since the Adoption Act 1952 first introduced a legal means for making this possible. As elsewhere, this period has seen a steady annual decline in domestic adoption orders—from 1500 in 1967 to 1115 in 1980, dropping to 222 in 2006 and down further to 79 in 2019. Intercountry adoptions have also dropped sharply from 307 in 2009 to 117 in 2012 and falling to 41 in 2018; indeed in 2013 only 11 children were adopted from abroad under the terms of the Hague Convention. It is a sad irony that the introduction of Ireland’s first formative adoption legislation since 1952, which followed its ratification of the Hague Convention and thereby launched a new and more sophisticated regime for regulating adoption, should coincide with a dramatic fall in annual adoption rates. This has been a period which has seen adoption change from being a means of regulating the non-kinship placements of voluntarily relinquished illegitimate babies and become more a means of sanctioning the private family arrangements of birth parents, almost always mothers, in respect of their own children. Adoption as a public child care resource, legislatively expedited elsewhere, has so far not been actively pursued by government policy in this jurisdiction, which partially explains the recent increase in the proportion of annual adoptions made in respect of children from overseas. It is possible that this pattern is about to be reversed as intercountry adoptions steadily contract while legislative changes may make more child care adoptions possible.

1 On July 14, 2010, President Mary McAleese signed the Adoption Act 2010 onto the statute books.

See, also, the Adoption Act 2010 (Revised) 2017. annual reports of the Adoption Board (or An Bord Uchtála), available from Government Publications, Molesworth St. Dublin, provide a useful and comprehensive source of information on adoption in Ireland.

2 The

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_7

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This chapter begins with a brief history of the adoption process in Ireland and an account of the main influences that have combined to shape its current social role. This leads into an overview of contemporary law, policy and practice including a guide to the outcome of the recent adoption law review process. The chapter then applies the template of legal functions (see, Chap. 3) to outline the adoption process, identify and assess its distinctive characteristics and facilitate a comparative analysis with other jurisdictions. In conclusion, some observations are made about the wider significance of the characteristics of the adoption process in Ireland.

7.2 Background Adoption as a statutory process has a particularly short history in Ireland. It began on 1st January 1954 when the Adoption Act 1952 came into effect. However, it did play a part in ancient Irish history as a practice intimately linked to the clan system and governed for hundreds of years by the Brehon laws.3 Arguably, modern adoption law and practice remains rooted to some degree in ancient practices when clans and kinship networks were central to the social infrastructure of this jurisdiction. A thousand years ago, under the Brehon laws, a form of kinship adoption had long been practiced whereby members of a child’s extended family or clan would undertake to rear him or her as a means of binding the clan group into a stronger more cohesive unit. Much the same ends were achieved by reciprocal placements of children between clans as a demonstration of mutual allegiance. In both, adoption or fóesam simply meant “taking into protection” and was seen as a means of allying with the fortunes of others. It had clearly defined legal consequences for the adopted person. As has been explained: “rights of inheritance may be acquired by a person adopted into a kin-group, either through payment of an adoption fee (lóg fóesma) or through invitation”.4 Such a person is then described as fine thacair or “kinsman by summoning”. An adopted son who failed to carry out his filial duties (goire) could be disinherited and another adopted in his place.5

3 See,

for example, Kelly, F., Early Irish Law, Dublin Institute of Administration Studies (1988). Kelly, F., Early Irish Law, op cit. 5 Ibid., at p. 105 where the author explains that adoption was originally a contract bound by sureties and ratified by the head of the kin. See also pp. 86–90 for an interesting account of the importance of ‘fosterage’ in early Irish society and the respective duties of foster child and foster parent according to their rank in society. 4 See,

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Eventually, the gap left by the fading authority of social systems based on feudalism, the Brehon laws and the extended agricultural family was filled by the state through the provision of basic containment and shelter as required by the Poor Laws.6 The Irish Poor Law Amendment Act 1862 enabled young children who would previously have been consigned to the workhouse to instead be “boarded-out” with state approved caring families; an official approach which outlived that legislative framework to become a key component in the twentieth century public child care system. However, the non-kinship adoption of such children was not encouraged. The Poor Law administrators feared that the existence of a means whereby parents could be totally relieved of their responsibilities would amount to condoning immorality and encourage the production of more children to become a further burden on the rates of the parish. Kinship fostering, where a family would take in its own rather than let, or be seen to let, relatives go to the workhouse, was both common and encouraged by the Poor Law authorities.7

7.2.1 The Social Context Giving Rise to Adoption Since the introduction of adoption legislation, considerable economic and other social changes occurred in Ireland, as elsewhere in the western world, leading to a loosening of the legal relationship between family and state. In all western nations at much the same time, adoption was required to accommodate a similar generic set of problems and to fit in with the new social norms that emerged to govern parenting arrangements. Such adjustments proved more challenging in Ireland than in other countries due to a deeply embedded Catholic morality, reinforced by the Constitution, which nurtured a culture adverse to any interference with traditional religious values centred on the marital family unit, gender roles and control of sexuality. As has been pointed out “The regulation of sexuality, gender roles and reproduction has been a mechanism for defining Irish political identity … While the Catholic Church has been an influential force in the politics of gender and motherhood …”.8 Although much has changed in recent years, the resistance to embracing emerging social mores is still apparent in the time lag that continues to constrain legal changes in relation to matters such as abortion, assisted procreation, surrogacy, trans issues and medically assisted death.

6 See,

Robbins, J. , The Lost Children: A Study of Charity Children in Ireland 1700–1900 (1980). Benet (1976) at p. 60. Also, Eekelaar, J., Family Law and Social Policy (1984) and Gilligan, R., (1991). 8 Allison, J., ‘Enduring politics: legislating assisted reproduction technologies in Ireland’, Reproductive Biomedicine & Society Online, 2016, p 4, at: https://www.researchgate.net/publication/311 620332_Enduring_politics_the_culture_of_obstacles_in_legislating_for_assisted_reproduction_ technologies_in_Ireland/link/5851685708ae7d33e012a54b/download. 7 See,

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7 Ireland

Marriage and Family Breakdown

Marriage has become less popular: the annual rate of marriages decreased from 7.0 per 1000 of the population in 1970 to 4.3 in 20189 ; while the number of people seeking separation, annulment, or divorce has increased, if only slightly during the period 1996–2016.10

7.2.1.2

Unmarried Mothers

The social stigma traditionally associated with the role of a single mother was acutely felt in Catholic Ireland in the middle decades of the twentieth century and resulted in considerable pressure on those in that position to surrender their children for adoption. Consequently, in 1967 some 96.9% of non-marital births resulted in adoptions which, for the purposes of this book, provides a particularly acute indicator of the crucial part played by politics in shaping the social role of adoption. This was an era when government in Ireland—perhaps more so than elsewhere— colluded with religious bodies (mainly emanations of the Catholic Church) to isolate single mothers as a threat to the institutions of marriage and the family, to public morality and more generally to the integrity of civic values that had to be jointly upheld by Church and State.11 An ‘illegitimate’ child was treated by the State as sui juris (outside the law) and by the Church as ‘lost to God’. In Ireland this invidious discrimination gave rise to: the disgrace of the ‘Magdalene laundries’12 ; the proliferation of private nursing homes in which very many babies died, to be buried in unmarked graves,13 and from which many others were spirited away to new homes overseas14 ; and to the anguish of countless mothers who, as depicted in the film ‘Philomena’,15 were forced to relinquish babies that were then ‘trafficked’ 9 See,

further, at: https://www.cso.ie/en/releasesandpublications/er/mar/marriages2018/. further, at: https://data.oireachtas.ie/ie/oireachtas/libraryResearch/2019/2019-04-02_l-rsnote-divorce-in-ireland-referendum-2019_en.pdf. 11 See, for example, Redmond, P., The Adoption Machine: The Dark History of Ireland’s Mother & Baby Homes, Merrion Press, Dublin (2018). 12 In June 2013, the Irish government offered a public apology—and agreed to pay e34.5 million in compensation—for the years of unpaid labour and public shame endured by the estimated 770 survivors of more than 10,000 young mothers who lived in a dozen such facilities from the 1920s to 1996. 13 See, Harrington, K., ‘New BBC series to look at Irish mothers forced to give up their babies’, The Irish Post, which reports that the bodies of some 800 babies and infants were found in one burial pit at one mother and baby home in Tuam. See, further, at: http://www.irishpost.co.uk/news/ philomena-journalist-lands-new-bbc-series-irelands-lost-babies. 14 See, Milotte, M., Banished Babies: The Secret History of Ireland’s Baby Export Business, New Island Press, 2014. 15 See, the 2013 Oscar-nominated film Philomena, about an Irish mother forced to give up her son for adoption. Ms Philomena Lee, a teenager in 1952, was consigned to the care of Catholic nuns in Ireland after she became pregnant and, like an estimated 60,000 other young Irish women, had 10 See,

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for adoption overseas—at least 2000 going to Catholic adopters in the U.S.16 The still unfolding scandal of the role played by the Catholic Church agency St Patrick’s Guild in the 1960s—when hundreds of birth certificates and baptismal records were fraudulently altered to permit the illegal adoption of Irish infants in the US—provides one indicator of the scale of Church abetted trafficking that occurred in that era.17 However, by the end of the first decade of the twenty-first century Irish society had greatly changed and with it the position of unmarried mothers. Childbirth became less dependent upon marriage: the annual number of non-marital births multiplied from 968 (1.59% of total births) in 1960 to 25,344 (35.10%) in 2012 to 23,340 (37.60%) in 2017.18 The correlation with annual adoptions is instructive: 505 in 1960; 49 in 2012; and 72 in 2017. By the latter date, there was no longer any meaningful relationship between non-marital births and adoption: by then the total had come to consist mainly of step-parent, foster parent and intercountry adoptions; whereas in 1960 they were almost entirely ‘stranger’ adoptions of voluntarily relinquished infants. Developments in medicine and law in the neighbouring jurisdictions increased the extent to which maternity for some in Ireland became a chosen option. Moreover, preferential welfare benefits became available from 1973, for single parents, thereby allowing those with low incomes to consider child rearing as a financially viable option.

7.2.1.3

Abortion

In Ireland, one measure of the long and troubled history of access to contraceptives and abortion services is reflected in the correlation between annual numbers of Irish women who decide to relinquish their child for adoption and those who increasingly resort to U.K. abortion services or avoid pregnancy, through the use of contraceptives often imported from the UK. Both, inevitably, have had an effect on the number of Irish babies available for adoption. A new stage in the availability of an Irish abortion service was reached with the Protection of Life During Pregnancy Act 2013, which came into effect on 1st January 2014. However, this is a deeply compromised statute. It sets out the circumstances in which abortion is legally available: this requires evidence of a “real and substantial risk” to the life of the pregnant woman including a risk of suicide; the latter requires her baby removed and adopted and was thereafter required to repent for the shame of having had an out-of-wedlock child. 16 Note that in February 2014 a report by the U.N. Committee on the Rights of the Child urged the Vatican to conduct an investigation into the Magdalene laundries. Given that at least one priest facilitating the U.S. adoptions of Irish children was a paedophile, the term ‘trafficking’ is not inappropriate. 17 See, further, O’Rourke, M., et al., ‘CLANN: Ireland’s Unmarried Mothers and their Children: Gathering the Data: Principal Submission to the Commission of Investigation into Mother and Baby Homes’ Dublin: Justice For Magdalenes Research, Adoption Rights Alliance, Hogan Lovells, (2018). 18 See, Central Statistics Office.

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three medical practitioners (including two psychiatrists) to certify that a termination is necessary to save her life; in the event of their not so certifying, she has a right of appeal to a review panel. Article 40.3.3 of the Constitution, enshrining a ‘right to life’, continues to block the introduction of effective regulatory legislation. The campaign to achieve a legally accessible abortion service in Ireland has been long and difficult. In 1983 the Constitution was amended to include the “Pro-Life Amendment”, which asserted that the unborn child had an explicit right to life from conception. It was amended again in 1992 to give women freedom to travel outside the jurisdiction to avail of legal abortion services.19 Subsequently, in A & B v. Eastern Health Board, Judge Mary Fahy, C and the Attorney General (Notice Party)20 and other cases, the limitations imposed by the right to travel were explored in the courts. More recently, three Irish women who had previously travelled to England for abortions brought a case to the European Court of Human Rights asserting that restrictive and unclear Irish laws violate several provisions of the European Convention on Human Rights. In practice, many Irish women seeking an abortion will continue to follow their example and in 2017 some 3000 were recorded as having done so with many others resorting to online purchases of abortion pills (numbers rose by more than 13% in 2018).21 .

7.2.1.4

Assisted Reproduction Services

Pregnancy for the infertile has become a stronger possibility due to improved techniques of artificial insemination and surrogacy, even if they are only available at a price and are not subject to statutory regulation. Ireland is one of the six out of 43 European countries that have failed to introduce specific legislative provisions to regulate assisted reproduction techniques.22 Although legally available since 1987, assisted human reproduction services within the jurisdiction have remained governed by guidelines issued by the Irish Medical Council and by judicial decisions such as that of Murray CJ in Roche v. Roche.23 As Allison comments24 :

19 See, the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995. In the 1970s, the UK jurisdictions experienced a drastic decline in the number of children relinquished for adoption following the introduction there of legalized abortion in the late 1960s. 20 [1998] 4 I.R. 464. See, also, Attorney General v. X [1992] 1 IR 1 and the ruling of the European Court of Human Rights in D v Ireland (2006) 43 EHRR SE191. 21 See, further, at: https://www.irishtimes.com/news/health/fewer-irish-women-travelling-to-ukfor-abortions-figures-show-1.3924628. 22 Others being Albania, Bosnia and Herzegovina, Romania and Ukraine. See, further, at: https:// www.eurekalert.org/pub_releases/2020-02/esoh-emt020320.php. 23 [2009] IESC 82; [2010] 2 1.R. 321. Ruling that embryos are not “unborn” for the purposes of constitutional law. 24 See, Allison, J., ‘Enduring politics: legislating assisted reproduction technologies in Ireland’, Reproductive Biomedicine & Society Online, op cit. _the_culture_of_obstacles_in_legislating_for_assisted_reproduction_technologies_in_Ireland/link/5851685708ae7

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Ireland, in fact, is one of the few EU member states without a legislative framework for regulating assisted reproduction. This lack of regulation runs counter to the importance that has been placed on defining and regulating reproduction and family in Ireland’s history. This history speaks to the power and place of motherhood and reproduction in upholding and protecting social structures that are deeply connected to notions of nature and gender. Legislation of assisted reproductive technology requires that states embrace multiple kinds of procreation, motherhood, fatherhood, family formation and even citizenship.

Donor assisted human reproduction (DAHR) services are accessed by married couples—including female couples—and single women but are fraught with legal complications. These have been eased somewhat by the Children and Family Relationships Act 2015,25 which clarifies the legal rights of the parties involved, though it is aimed primarily towards the right of children to access the information necessary to establish an authentic identity. Surrogacy There is, as yet, no specific legislation governing surrogacy.26 While not illegal, surrogacy agreements are unenforceable despite recommendations made more than a decade ago by the Commission on Assisted Human Reproduction in Ireland.27 Consequently, it is estimated that there are now several hundred children living in Ireland born to surrogate mothers whose legal status is uncertain.28 Most such children have been born to surrogate mothers overseas, in countries such as the Ukraine, and have returned to Ireland with the commissioning parents under an Emergency Travel Certificate. Traditionally, the surrogate mother is considered to be the legal mother of the child and the child’s guardian, because she has given birth to the child. Indeed, under the Guardianship of Infants Act 1964, the mother of any child born outside marriage is that child’s sole guardian. It the event of a child being born as a result of a surrogacy arrangement, it would then be necessary for the commissioning person(s) to commence adoption proceedings through the Adoption Authority. However, this step is fraught with uncertainty as: there is no guarantee that the child of a surrogate mother would be placed with the biological mother and/or father; private adoptions are prohibited; and any commercial payments made for adoption purposes are illegal. For those couples who seek to circumvent domestic constraints by going to countries such as India or the Ukraine, there are difficulties relating to travel documents29 and to declarations of parentage and guardianship on their return to Ireland. 25 See, also, the Children and Family Relationships (Amendment) Bill 2018 and the General Scheme of the Assisted Human Reproduction Bill. 26 See, further, at: http://www.citizensinformation.ie/en/birth_family_relationships/adoption_and_ fostering/surrogacy.html. 27 See, the Report of the Commission on Assisted Human Reproduction, Dublin, 2005 which recommended that a child born through surrogacy should be presumed to be that of the commissioning couple. The Commission also recommended the establishment of a regulatory body for assisted human reproduction. These recommendations have not yet been incorporated into Irish law. 28 See, further, at: http://www.aclsolicitors.ie/news-events/current-news/legal-status-of-surrogacyin-ireland/. 29 See, further, at: http://www.justice.ie/en/JELR/Pages/Surrogacy.

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In McD v. L 30 the Supreme Court held that a sperm donor who wanted to play a role in parenting should be granted some parental rights. More recently, in M.R. & Anor v. An tArd Chlaraitheoir,31 Justice Abbott ruled against commissioning parents who sought to have the birth certificates of twins altered to substitute their names for that of the surrogate as parents. Relying on the maxim mater semper certa est (the mother is always certain), in refusing to alter the register, he held that genetic mother rather than the gestational mother should be registered as the mother under the Civil Registration Act 2004. He had this to say about ‘motherhood’ in Irish law32 : Any step which suggests that the birth mother is not the mother of the children opens a range of prospects. If it then becomes the law that the birth mother is not the mother of the children, then it is simply not possible to control the outcome of that for all of the other persons affected. Such persons include those who have borne children by donor gametes, who now may have issues about the status of their children at a number of levels, which hitherto they did not have by virtue of birth mothers recognition as lawful mothers.

While his iteration of the problem cannot be faulted, his decision can and was. The Supreme Court declined to endorse the significance attached by Abbott J to the maxim mater semper certa est. The Chief Justice, Mrs Justice Susan Denham, stated that it was not part of Irish common law nor of statute law but simply reflected a pre-ART approach to motherhood in which the woman who gave birth was deemed to be the mother. She noted that there was no definitive definition of ‘mother’ in the Constitution and thus no constitutional impediment existed to prevent the legislature from clarifying the respective rights of the parties in such surrogacy arrangements: this legal lacuna was a matter for the legislature not the courts. In allowing the appeal, the Supreme Court ruled that the genetic mother was not entitled to be registered on the twins birth certificate as their legal mother.

7.2.1.5

Increase of Children in Public Care

Finally, increasing numbers of children are entering the public child care system under the provisions of the Child Care Act, 1991, the Children Act, 2001 and the Child Care (Amendment) Act, 2007. In 2018 the Child and Family Agency reported 6151 children in care; the child care population having remained relatively stable throughout that decade. The Child and Family Agency has the following options available for children in its care: a foster care placement; or a residential care placement (either in a children’s residential centre registered under the Act, in a residential home maintained by the Child and Family Agency or in a school or other suitable

30 [2009]

IESC 81. IEHC 91. 32 Ibid., at para 90. 31 [2013]

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place of residence), or an adoption placement, if the child is eligible; or make other suitable arrangements, which may include placing with a relative. Foster Care There has been a steady increase in the proportion of the child care population placed with foster parents: in 1996, the proportion was 76.2%; in 2004, 83.9%; and in 2011, 90%. By 2020, there were 5511 children in foster care (approx 92% of the total care population), Because of the limited access to adoption for children from marital families, constrained by the 1988 Act, a far higher proportion of the Irish child care population remained in long-term foster care than was the case in some other modern western jurisdictions; this situation eased with the introduction of the Adoption (Amendment) Act 2017. Residential Care The proportion of the child care population placed in residential care was more than half in 1978, falling to 26.9% in 1988, but by 2011 of the 6160 children in care only 352 children were placed in children’s residential centres. It is now the policy and practice of the Child and Family Agency to place children aged twelve years and under in residential care only in exceptional circumstances. Placed for Adoption Until the introduction of the Adoption (Amendment) Act 2017, the law only permitted the placement of an orphaned child (with no available relatives) or the child of unmarried parents for adoption either with their consent or where so permitted by the Child Care Act 1991; the placement of a child of married parents for adoption, even if the latter gave consent, was only possible in very limited circumstances—in effect requiring evidence of a total abandonment of parental rights. The Child and Family Agency are now authorised, under the 2017 Act, to place for adoption a child of married parents. Between January and November 2019 some 21 children were adopted from foster care most of whom were aged 16–18. Kinship Care In 2004, of the 5060 children in care, 349 were placed with relatives but by 2018 the Child and Family Agency reported that approximately 27% were so placed. This would seem to indicate a significant policy development in favour of kinship care.

7.2.2 Resulting Trends in Types of Adoption The adoption of babies by third parties or ‘strangers’, where the adopter is unrelated in any way to the adoptee was until very recently, in Ireland as in many western nations, the most prevalent form of adoption. However, the children now becoming available for adoption are far fewer in number, older and more likely to be related to one of their adopters than formerly. For example, in 2018 of the 72 adoption orders

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made, 30 were in respect of children aged 17—which must raise questions as to the extent to which adoption is a ‘service for children’—and 35 were step-adoptions. Eligibility to be adopted ends at the age of 18; adoption of adults is not legally possible.

7.2.2.1

Third Party Adoptions

This, the traditional adoption model, now known more simply as ‘non-family adoptions’, has been transformed from being almost exclusively domestic to become primarily intercountry in nature. Domestic The traditional model grew from and remained rooted in the concept of a Christian family unit, based on lifelong and monogamous marital union and defended by the Constitution. The child of such a union, unless orphaned, could not be available for adoption; this legal process was exclusively reserved for non-marital children33 and indeed in 1967 a total of 96.9% of those born that year were adopted. By 2006, when Irish society had become quite different, the total had fallen to 1.04% and fell further to reach 0.19% in 2012 in a trend that is now well established. The Catholic Church played a pivotal role in this process being initially responsible for arranging institutional care for unmarried mothers,34 the placement of their children and the selection of suitable adopters; it also facilitated the overseas placement of Irish babies, mainly in the United States. In short, prior to the introduction of the first adoption legislation in 1952 it managed the Irish adoption process ensuring that unmarried pregnant women and girls were housed away from their communities and their babies diverted from possible adopters of the ‘wrong’ religion or none in Ireland and towards Irish Catholic families in the US. Its direct control was gradually displaced as the statutory procedure took over but the Catholic Church continued to heavily influence all aspects of the adoption process over the next two decades. The total number of children adopted by third parties far outnumber those adopted through a combination of all other forms; only in the last decade of the twentieth century did family adoptions increase to constitute an annual majority in a sharply decreasing total.35 The number of domestic third party adoptions is now steadily

33 The

Adoption Act 1952 confined the use of adoption to: orphans and non-marital children aged between 6 months and 7 years; adopters who were married couples living together, widows, the child’s birth mother/father and certain relatives (on the mother’s side); and to adopters who were of the same religion as the child. 34 See, for example, the Department of Justice and Equality (2013) http://www.justice.ie/en/JELR/ Pages/MagdalenRpt2013. Also, see, the ‘Philomena Lee’ documentary. 35 For example, whereas in 1991 family adoptions constituted 43.6% of the total of 590 orders, by 2000 this had risen to 68.32% of 303 domestic adoption orders.

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falling.36 In 2006, for example, of the 222 domestic adoption orders issued (down from 253 in 2005): only 69 were third party adoptions of which 36 resulted from placements by health boards and registered adoption societies, 17 concerned children in long-term foster placements and 15 adoption orders were made in respect of foreign children placed for adoption abroad. By 2019, out of a total of 79 adoptions only a small minority were granted to non-family applicants. So, whereas in the past third party adoption conformed to a very definite model, it now accommodates a number of variations: traditional third party adoption of infant; child care (essentially by foster parents); kinship (extended family); and step-parent (now single applicant). Child Care and Protection The increase in numbers of children in care has not, unlike comparable circumstances in the U.K. and elsewhere, resulted in a proportionate increase in child care adoptions. The Adoption Act 2010, s 54, provides for the possibility of non-consensual adoption for children in long-term foster care, whether from marital or non-marital families, but under very restrictive conditions. Under s 36(1)(c) of the Child Care Act 1991 the Child and Family Agency can place a child who may be eligible for adoption “with a suitable person with a view to his adoption”. Also, under s 6(3), that body may “take a child into its care with a view to his adoption and maintain him… until he is placed for adoption”. But that agency’s capacity to utilise the adoption option for a child in its care has remained virtually unaltered by the 2010 Act because of the stringency with which the test of parental failure has been applied. As McGuinness J stated in Northern Area Health Board v. An Bord Uchtála37 “there has to be a complete failure to carry out the day-to day-care of the child”. The Supreme Court, in In re JH (An Infant),38 found that state intervention is only justified if it is established that there are “compelling reasons” why the welfare of the child cannot be met in the custody of the parents. This was reaffirmed in N v. Health Service Executive39 where the Supreme Court decided that “exceptional circumstances” did not exist to justify allowing an infant girl to remain in the care of her pre-adoptive parents. Instead, under s 4 of the Child Care (Amendment) Act 2007, which came into effect in July 2007, foster parents or relatives who have been caring for a child for a continuous period of at least five years are more likely to apply to the court for 36 In 2004, of the 273 domestic adoption orders issued, 185 involved the adoption of children by family members and only 88 were third party adoptions: 26 resulted from placements by registered adoption societies, 20 were placements by health boards and 22 concerned children in longterm foster placements. The remaining 20 involved foreign children placed for adoption abroad in Guatemala, the Philippines and India, who were then adopted under the Adoption Act 1952 or the Adoption Act 1988. 37 [2003] 1 ILRM 481. Also, see, North Western Health Board v. HW [2001] 3 IR 622 where parental refusal to consent to the administration of the PKU test in respect of their newborn child was upheld by the Supreme Court. In this case, the State was not permitted to rely on Article 42.5 to step into the parental role because it was held that the parents of the child had not failed in their duty either for moral or physical reasons. 38 [1985] IR 375. 39 [2006] IESC 60.

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a guardianship order; though they may now do so under the 2017 Act after a care period of 18 months. In either case, the consent of the Child and Family Agency is necessary and the consent of the parents or guardians may also be required. By 2018, the trend in increasing numbers of adoption orders made in respect of children who had been in long-term-foster care was well established; 13 in 2015; 19 in 2016; 21 in 2017; 25 in 2018; and in 2019, 21 of the 79 orders issued were in favour of foster parents.40 Children with Special Needs Children with ‘special needs’ are defined in this jurisdiction as those suffering from learning or physical disability, or both, with significant social and health care needs. Whereas this variation of third-party adoption has been successful in Northern Ireland, as in the U.K. generally and in the United States, there is little indication that it attracts potential adopters in Ireland. In 1993 10 orders were made in respect of such children; 6 in 1995; 2 in 1996; 3 in 1997; and 1 in 1998. In its most recent annual reports, the Authority no longer makes any reference to adoption orders made in respect of such children. Intercountry Social changes in Ireland in the 1980s led to the introduction of the Foreign Adoption Acts 1991-1998 and facilitated the adoption of many children, originally largely from Romania, although countries such as Guatemala, China, Thailand, Belarus and India have also at times been popular, Russia,.41 In recent years this type of adoption has been proportionately more significant in Ireland than in neighbouring jurisdictions.42 Its development is usually traced to the altruistic surge of Irish interest in the very many children found to have been abandoned in Romanian orphanages in the post-Ceausescu period in the early 1990s. However, that interest was also stimulated by the lack of alternative forms of third party adoption. In fact intercountry adoption existed in an inverted form during the years 1948–1968 when as many as 2000 children born to unmarried mothers were discretely removed by religious

40 See,

further, at: https://aai.gov.ie/images/Annual_Report_2019.pdf. the website at http://www.hse.ie/eng/Find_a_Service/Children_and_Family_Services/Ado ption_and_Tracing/Intercountry_adoption/. 42 For example, in 2004 the Adoption Board made 648 adoption orders, of which 375 (58%) were entries in the Register of Foreign Adoptions. This rate of foreign adoptions is high by international standards. By comparison, in the United Kingdom, which has a population of about 15 times the size of Ireland’s, 367 children were adopted abroad by U.K. based adopters. While in Norway, with a population of 4.6 million, there were 724 such adoptions in 2005. 41 See,

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organisations from Ireland for adoption overseas, usually in the United States.43 This, as noted by McGuiness, J, was due to a lack of regulatory control44 : At the time of the enactment of the Adoption Act 1952, which was the first legislation permitting legal adoption in this State, a particular problem had arisen by which prospective adopters from other jurisdictions, the majority from the United States, were taking Irish infants abroad for the purpose of adoption. In the main these were infants born to unmarried mothers who in the circumstances of the time felt themselves unable to care for their own children. There was little or no enquiry or assessment as to the suitability of the families or environments to which these infants were being brought and no evidence as to whether their removal from the State was in the best interests of their welfare.

In the mid-1990s Irish people became interested in adopting children from the People’s Republic of China. The Adoption Board refused to recognise Chinese adoption orders under the Adoption Act 1991 because Chinese law provided for a form of simple adoption which did not terminate the legal relationship between birth parent and child. In B and B v. An Bord Uchtála this view was challenged by a number of couples who sought recognition of Chinese adoptions. The High Court,45 and on appeal the Supreme Court,46 upheld these challenges and ordered that Chinese adoptions be registered under the 1991 Act. Until recently, the number of children adopted from overseas had increased every year since the introduction of the Adoption Act 1991 (see, further, below). Ireland (population 4.2 million) has been adopting at least as many children from abroad as the U.K. (population 60 million) and in 2008 had the second-highest per capita adoption rate in the world—9.45 per 100,000 population.47 Between 1991 and 2018 a total of 7709 intercountry adoptions were recognised by the Authority.48 Of those, the entries registered49 for that period are interesting: 1608 children were from Russia50 ; 786 from Romania; 880 from Vietnam; 425 from China; 43 Milotte, M., Banished Babies: The Secret History of Ireland’s Baby Export Business, New Island Books, Dublin, 1997 where the author traces how Irish children were made available to foreign couples for the purposes of adoption. He quotes a German newspaper report from 1951 which stated that “Ireland has become a sort of hunting ground today for foreign millionaires who believe they can acquire children to suit their whims.” See, also, the story of Philomena Lee. 44 See, Western Health Board v. M [2001] IESC 104. For an historical account of the difficulties in introducing adoption legislation in Ireland see Whyte, Church and State in Modern Ireland 1923– 1979 (2nd ed), Gill & Macmillan, Dublin 1980 at p. 185 and Ferriter, The Transformation of Ireland 1900–2000, Profile Books 2004. 45 High Court (Flood J) 12 April 1996. 46 [1997] 1 ILRM 15 (SC). 47 See, Council of Europe, Commissioner for Human Rights, Adoption and Children: A Human Rights Perspective, Strasbourg, 2011, at: https://wcd.coe.int/ViewDoc.jsp?id=1780157. 48 Occurring within the terms as defined by the 1991 Act and the 2010 Act. 49 Entries made in the Register of Foreign Adoptions 1991–2010 (pursuant to the Adoption Act 1991, s 5), together with those made in the Register of Intercountry Adoptions 2011–12 (pursuant to the Adoption Act 2010, s 57(2)(b)(ii)). 50 Note that since Russia has not ratified the Hague Convention and does not have a bilateral agreement with Ireland, there are no longer any Irish adoptions from that country.

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and 302 (5.75%) from Ethiopia; the remainder being largely from South America, India, Thailand and from countries that formerly constituted part of Russia (see, also, Chap. 5). Since ratification of the Hague Convention, intercountry adoption in Ireland has declined significantly—though the extent to which this is a causal factor is debated. Certainly the closure of Russia as a source—because it is not a Hague signatory nation and because there is no bilateral agreement in place—has had a marked impact.51 Interestingly, there are ongoing government initiatives to facilitate adoptions from the U.S. from which 19 children were adopted in 2012 and others every year since. This may indicate a further shift towards the privatisation of adoption in Ireland as American commercial adoption agencies become more involved in brokering placements for Irish adopters. In 2012, the Adoption Board made 181 declarations of eligibility and suitability to adopt outside the State (400 in 2006) and it made 242 entries in the Register of Intercountry Adoptions (298 in 2006).52 By 2018 the comparative figures were 53 and 313 (of the latter, 41 entries were in respect of adoptions into Ireland carried out under the terms and conditions of the 1993 Hague Convention) while in 2019 104 declarations of eligibility and suitability were issued. Transracial The sudden surge in intercountry adoptions during the last decades of the twentieth century and continuing into the second decade of the 21st resulted in many mixed race Irish families, but it is nonetheless noticeable that the majority of adoptees (certainly in the early years) tended to be white Caucasian. However, the transracial component to intercountry adoption is now well established in Ireland and has not been accompanied by research findings on any particular difficulties, specifically attributable to race, apart from passing references in the Greene et al. study.53 It is possible that as Irish society as a whole became pronouncedly more multiracial at the turn of the century, so mixed race adoptions became relatively less conspicuous and more readily absorbed.

7.2.2.2

First Party Adoptions

The adoption of a child by a person or persons related to him or her is referred to as a ‘family adoption’ and has become the most common type of adoption in Ireland. By 2004, of 273 domestic adoption orders 185 involved the adoption of children by family members, of which 177 were step-adoptions while 5 children were adopted by 51 Approximately 1600 Russian children have been adopted into Irish families: 920 in the period 2004–2010 when the comparative total for Israel was 613. Ireland was engaged in negotiating a bilateral agreement with Russia in 2013. 52 See, Report of An Bord Uchtála, Stationery Office, Dublin, 2006, at para 1.2. In 2004 the Adoption Board made 648 adoption orders, of which 375 (58%) were entries in the Register of Foreign Adoptions. 53 See, Greene, S., et al., A Study of Intercountry Adoption Outcomes in Ireland, Children’s Research Centre, TCD, Dublin, 2008.

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grandparents and 3 by other relatives. In 2006, of the 222 domestic adoption orders made (down from 253 in 2005) 153 involved the adoption of children by family members of which 149 were step-adoptions, the remaining 4 orders being in favour of other relatives.54 By 2018, there were only 72 domestic adoptions most of which were by relatives. However, until the introduction of the Adoption (Amendment) Act 2017 neither parent could shed their guardianship duties in respect of a child of their marriage and therefore could not be held to have ‘abandoned’ that child as the term is construed under the 2010 Act. This legal block to an application from a remarried widow/widower in respect of the child of their previous marriage has now been removed by the 2017 Act. Step-Parents This is the most common type of adoption in Ireland. In 2005, for example, there were 165 (an adoption rate of 34.4 per 100,000 children under age 5) which was high relative to other nations: more that twice that of Sweden.55 In 2013, of the 116 adoption orders granted, 86 were step-adoptions. In 2015, there were 66 step adoptions, 65 in 2016, 37 in 2017, in 2018 of the 72 adoption orders granted, half (35) were in favour of step-parents and in 2019 that was the case for two-thirds (51 of the 79 orders granted).56 For some years it has been a consistent feature of the Irish adoption process that most adoptions have been in favour of birth parents; a complete reversal of the underpinning legislative intent. Long regarded as an inappropriate use of adoption by the regulatory body, this has now been ended by the availability of guardianship orders and the changes introduced by the Adoption (Amendment) Act 2017 which has finally brought about changes to this anomolous situation by permitting a step-parent to adopt without the necessity of being joined by the birth parent. The attractions of adoption for step-parents are: the step-father becomes the legal father with all the rights and responsibilities in respect of the child as if the child had been born into the marriage; the child will acquire the same rights as all other children of the marriage; the family can share the same surname; and all rights and responsibilities of the biological father are permanently terminated. Until the introduction of the 2017 Act, a step-parent adoption required a birth parent to jointly adopt with the step-parent; a quirk that has finally been rectified by that legislation. Among other detrimental effects of step-parent adoptions are that: for the birth father it completely severs all legal links between himself and his child and between the

54 Ibid. 55 See,

U.N. Dept of Economic and Social Affairs, Population Division, Child Adoption: Trends and Policies, United Nations Publications, 2009, at p. 130. 56 See, further, at: https://aai.gov.ie/images/Annual_Report_2019.pdf.

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latter and the extended paternal family; while for the child the adoption changes their legal identity and obscures her/his birth details.57 Kinship In Irish law ‘relative’ means a grandparent, brother, sister, uncle or aunt of the child and/or the spouse of any such person (the relationship to the child being traced through the mother or the father). Kinship adoption is a relatively modern phenomenon in this jurisdiction unlike, for example, in the United States.

7.3 Overview of Principles, Policy and Law The above influences and trends resulted in significant changes to adoption practice, accompanied by adjustments to the legal framework and challenges to policy, which led eventually to the Adoption Act 2010. These developments were necessarily constrained by constitutional imperatives. In Ireland there is a constitutional presumption that ‘the best interests of the child’ are to be found within his or her family and only the most compelling reasons will justify the removal of a child from their marital family unit.58 The state, in Article 42, section 1 of the Constitution, acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. The parents’ right and duty to educate their child can only be displaced by state care in circumstances falling within s 5 of Article 42. This provides that, in exceptional cases, where the parents for physical and moral reasons fail in their duty towards their children, the state as guardian of the common good shall by appropriate means endeavour to supply the place of parents, but always with due regard for the natural and imprescriptible rights of the child. In keeping with the religious ethos (specifically, that of Roman Catholicism) pervading the Constitution, there is a strong implication that in law the term ‘family’ refers to a marital family unit. Article 41 of the Constitution, while not explicitly so defining the term, clearly establishes preferential status and protection upon such a family.59 For that reason, in Ireland the non-marital family, as always, continues to 57 The child’s birth certificate is replaced with an adoption certificate on which the birth mother is recorded as the child’s adoptive mother. 58 See, Re JH (An Infant): KC and AC v. An Bord Uchtála [1985] IR 375 and Duncan, W., The Constitutional Protection of Parental Rights in Parenthood in Modern Society, Eekelaar, J.M., and Sarcevic, P., (eds.), (Dordrecht, 1993 and reproduced in the Report of the Constitutional Review Group, Dublin, Stationery Office, 1996, pp. 612–626. 59 See, for example, The State (Nicolaou v. An Bord Uchtála [1966] IR 567; G v. An Bord Uchtala [1980] IR 32; and WO’R v. EH (Guardianship) [1996] 2 IR 248. Note that in Northampton County Council v. ADF and MF [1982] ILRM 164, Hamilton J held that Articles 41 and 42 of the Constitution, were applicable to married parents and children who were not citizens of Ireland but who were present in the State. In doing so, he refused the order sought by the applicant English county

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attract less protection in law than the family based on marriage. While an unmarried mother has a guaranteed right, under Article 40.3.1, to the care and custody of her child, there is nothing in the Constitution to prevent her from relinquishing all her parental rights through adoption.

7.3.1 Adoption Principles and Policy In 2006, the United Nations Committee on the Rights of the Child expressed concern that Ireland’s intercountry adoption legislation does not fully correspond with international standards, and recommended legislative reform to remedy this situation.60

7.3.1.1

Principles

In adoption, as in family law more generally, the governing principles are to be found in the Constitution, perhaps particularly in Article 42, as refracted through adoption legislation. The Welfare Interests of the Child In order for a child to be adopted, s 19 of the Adoption Act 2010 requires proof that this would be compatible with the principle of the “welfare of the child as the first and paramount consideration”.61 The UN Committee on the Rights of the Child has recommended that steps be taken to “ensure that the general principle of the best interests of the child is a primary consideration without any distinction and is fully integrated into all legislation relevant to children”.62 Openness The move towards greater transparency in Irish adoption law and practice has been slow and painful. The considerable baggage associated with the ‘sinfulness’ taboo of non-marital procreation and the public shaming of generations of young mothers, leading to the anonymous deaths of many hundreds of babies and young children, their bodies discarded in the grounds of ‘nursing homes’, and the forged birth certificates that accompanied many thousands of others shipped for adoption to the US, council to enable the respondent child to be adopted in England. See, also, the similar case of London Borough of Sutton v. M [2002] 4 IR 488. 60 See the last report of the U.N. Committee on the Rights of the Child-Concluding Observations: Ireland 29 September 2006 at www.ohchr.org/english/countries/ie/. 61 In keeping with s 3 of the Guardianship of Infants Act 1964 which states that a court in assessing guardianship issues must have regard to the welfare of the child as “the first and paramount consideration”. 62 See, the last report of the UN Committee on the Rights of the Child, CRC/C/IRL/CO/2, Concluding Observations, 2006, at para 23.

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would seem to have induced legislators to exercise great caution in the steps taken to introduce greater transparency; perhaps because of its potential to retrospectively reveal illegal practices and trigger accompanying political accountability. This form of adoption has no specific standing in law,63 although the practice64 is permitted under the 1991 Act (as amended by the 1998 Act) in relation to the adoption of children from overseas. In many family adoptions the adopting birth mother and her spouse make a voluntary agreement with the child’s father to facilitate postadoption contact arrangements between him and the child. In Northern Area Health Board v. An Bord Uchtála65 McGuinness J commented on this trend: Adoption practice in general has become more open in recent years. The old insistence on secrecy and a complete exclusion of the natural mother has virtually gone and it is not uncommon for adopted children to continue to meet their birth parents from time to time.

7.3.1.2

Policy

Although the paramountcy principle has been given legislative recognition in the 2010 Act, the issue still stands as to how this is to be balanced against the ‘inalienable and imprescriptible’ parental rights principle enshrined in the Constitution. Until greater clarity is achieved, probably through a prolonged period of Supreme Court elucidation, it is difficult to predict how exactly the paramountcy principle will effect decision-making not just in relation to prevailing over the right of a non-consenting parent to resist an adoption order but also at other points in the process where the principle and rights are in conflict e.g. authority for placement, possible contact conditions and post-adoption access to identifying information. Resolving the tension between Convention and Constitution principles remains the central challenge for the adoption process in Ireland. If or until this is resolved, the law and policy in this jurisdiction will be left on a fundamentally different and diverging track from that taken by the U.K., converging instead with the adoption model developed in New Zealand and in such mainland European countries as France, Norway and Sweden.

7.3.1.3

Adoption Alternatives: Guardianship

The use of a guardianship order is a well-established alternative to adoption, particularly as an option for step-parents or on the discharge of a child from the public care 63 See,

Final report on the Potential Introduction of Open or Semi-Open Adoption in Ireland, at: https://www.gov.ie/en/publication/06d56e-review-and-consultation-in-respect-of-the-potentialintroduction-of-/. 64 Note that in W.O’R v. E.H. [1996] 2 IR 248 the Supreme Court held that any order allowing the non-marital father (or any other person) access is deemed to have lapsed upon the making of the adoption order. For a broad definition, see Triseliotis, J. , ‘Open Adoption’ in Mullender, A. (ed.) Open Adoption: The Philosophy and the Practice, British Agencies for Adoption and Fostering, London, 1991 at pp. 17–35. 65 Op cit, per McGuinness J at para. 83. Also, see, J.B. and D.B. v. An Bord Uchtála, (1998).

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system. In the latter context, long-term foster care under the authority of a care order continues to be the only feasible legal framework available for almost all children admitted to the public care system.

7.3.2 Contemporary Adoption Legislation and Related Statutes Bunreacht na hÉireann, the Irish Constitution, was enacted by parliament—the Oireachtas—in 1937. Article 44.1 declares “the State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion”. Articles 40–44 specifically provide protection for fundamental rights: Article 41.1.1 ‘recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’, and guarantees its protection by the State’. The Adoption Act 2010 repealed and replaced the 1952 Act (the ‘principal Act’) together with its subsequent amending statutes (in 1964, 1974, 1976, 1988, 1991 and 1998). The 2010 Act and the ancillary Adoption Rules now constitute the core domestic legislative framework for adoption law and practice in Ireland. This has been since been supplemented by further legislation. The Adoption Act 2010 (Revised)66 consolidates all Acts up to and including the Judicial Council Act 201967 and all statutory instruments up to and including the Adoption Act 2010.68

7.3.2.1

The Adoption and Information Tracing Bill 2016

The legislative intent underpinning this Bill was to give adopted children access to information regarding their birth as well as providing access to birth certificate information for adopted people who found out that they had been wrongly registered as the biological children of their adoptive parents. It provided for contact to be made with all birth parents to find out whether they have any objection to the birth information being released. Where the parent did not consent to the release of the information, both parties will be given the opportunity to make their case before the Adoption Authority of Ireland. The Bill was intended to allow the Adoption Authority to have access to records currently held by a wide range of Information Services, give the Authority an oversight role with regard to the maintenance of adoption records and place the National Contact Preference Register on a statutory

66 Number 21 of 2010. See, further, at: http://revisedacts.lawreform.ie/eli/2010/act/21/front/revised/

en/html. 67 (33/2019), 68 Abridged

enacted 23 July 2019. Certificate) Regulations 2019 (S.I. No. 508 of 2019).

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basis. It was deferred indefinitely in 2019 due to difficulties in reconciling the rights of birth parents, adoptees and Constitutional provisions.

7.3.2.2

The Adoption (Amendment) Act 2017

Basically, this statute amends the Adoption Act 2010 to extend the law in relation to the adoption of children and to provide for the repeal of Part 11 of the Children and Family Relationships Act 2015. The amendment brought about a number of key changes to domestic adoptions, including: • It recognised the best interests of the child as the most important consideration in any adoption application, and set out criteria by which to consider this. • It removed a restriction on the adoption of children born to married parents or who were adopted previously. • It allowed for couples living together in a civil partnership or co-habiting to adopt. • It established separate provisions for step parent adoptions, allowing for a step parent to adopt their partner’s child without requiring that partner (who is already the parent of the child) to also apply to adopt the child. • It defined the role of the ‘relevant non-guardian’ in adoption cases, and extends to them the rights of birth fathers in such cases. • It expanded on the criteria for a case before the High Court under section 54. 7.3.2.3

The Children First Act 2015

This legislation was fully enacted in December 2017. The Children First Guidelines from 2011 have been updated to The Children First National Guidance for the Protection and Welfare of Children, 2017. Together they require every ‘relevant organisation’ to ensure that children are safe from harm while using their services.

7.3.2.4

The Children and Family Relationships Act 2015

This legislation offers guardianship to stepparents as an alternative option to adoption and enables a wider range of unmarried fathers to become guardians of their child automatically. It also imposes more onerous requirements on the Adoption Authority in respect of birth father consultation. cohabiting couples, who have lived together for three years, and civil partners can be considered for adoption. Application must be made to the District Court. In addition there are provisions relating to surrogacy arrangements.

7.3 Overview of Principles, Policy and Law

7.3.2.5

309

The Child and Family Agency Act 2013

Among other changes, this statute established the Child and Family Agency, provided for the transfer of certain functions from the Health Service Executive to that agency and amended the Child Care Act 1991.

7.3.2.6

The Adoption (Amendment) Act 2013

This legislation amends the 2010 Act. It extends the period of ‘Declarations of Eligibility and Suitability’ granted to prospective adoptive parents under s 63 of the Adoption Act 2010 in relation to Russia, for one year to 31 October 2014 for those prospective adoptive parents who held such declarations on 31 October 2013.

7.3.2.7

The Adoption Act 2010

This formative legislation repealed the previous seven adoption statutes, consolidated relevant provisions, introduced some significant areas of reform and came into effect on 1st November 2010.

7.3.2.8

The Adoption (Hague Convention, Adoption Authority and Miscellaneous) Act 2008

This provided for the creation of the Adoption Authority (replacing the Adoption Board) as the Central Authority required under the terms of the Convention to oversee the implementation of the Convention in effecting intercountry adoptions.

7.3.3 International Law The Irish government ratified the European Convention on the Adoption of Children in 1968 (currently under review) and the Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Adoption in 2010. It has subscribed to the United Nations Convention on the Rights of the Child 198969 and to the European Convention for the Protection of Human Rights and Fundamental

69 In Ireland the United Nations Convention on the Rights of the Child is given effect by the National

Children’s Strategy, launched in 2000, responsibility for the implementation of which rests with the National Children’s Office. See, further, Horgan, ‘The United Nations Convention on the Rights of the Child and Irish Family Law’ (1991) 9 ILT 162.

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Freedoms 1950. The latter was given effect by the European Convention on Human Rights Act, 200370 (see, further, Sects. 4.4.7 and 5.4.7).

7.4 Regulating the Adoption Process In Ireland, the Adoption Authority71 (previously the Adoption Board or An Bord Uchtála) is the body positioned to hold an overview of the workings of the adoption process and to regulate the contribution made to it by various statutory and voluntary agencies. It is a constituent agency of the Department of Children and Youth Affairs. That process, as statutorily defined, now consists of the following stages: • • • • • •

legal procedures regarding availability of child, status of parties and consents; placement of child; legal procedures relating to application; the hearing and issue of order/s; access to a post-adoption contact register; and certain information disclosure entitlements.

In addition to the above legislatively required components, some agencies have voluntarily developed services that are now accepted as part of the adoption process in Ireland. These include pre-consent counselling, post-adoption support services and tracing and re-unification services. In Ireland, the adoption process has significant jurisdictional characteristics. Most obviously the statutory process is both shorter and narrower than in other modern western jurisdictions. Also of significance is the fact that adoption proceedings are administrative and the role of mediating bodies is less intrusive and less extensive in nature than elsewhere. Finally, however, there is now a regulatory framework governing the entire adoption process which is led by the Authority.

7.4.1 Length and Breadth of the Process In the context of family adoptions, the process does not start until an application is lodged; which cannot be less than a year after care responsibility has been undertaken by a relative or step-parent but may be several years afterwards. This is a singular characteristic of adoption in Ireland.72 The waiving of preliminary professional scrutiny, and with it any opportunity for public service support in this context, 70 This

became part of Irish law on 31 December 2003. the introduction of the Adoption Act 2010, preceded by the Adoption (Hague Convention, Adoption Authority and Miscellaneous) Act 2008. 72 As this may not occur until several years after placement, the adoption is a virtual fait accompli as there can be no reasonable alternative. 71 Following

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emphasises the process’s distinctly private characteristics. The reverse is true in the context of adoption in a public care context where the process cannot begin for at least eighteen months after placement with foster parents. At the end of the process, closure occurs abruptly with the issue or refusal of an adoption order. The absence of any statutory post-adoption allowances or support scheme, any statutory possibility of attaching contact conditions to adoption orders (notwithstanding the recent introduction of information disclosure procedures) effectively terminates any rights or duties in respect of ongoing services.73 In Ireland, the adoption process does not encompass as wide a range nor as uneven a mix of participants as elsewhere. The very small proportion of children entering the adoption process who are either the child of married parents or the subject of a care order continues to be a particularly distinctive characteristic of adoption in this jurisdiction. Intimately related to that fact is the relatively large proportion of adopted children, though diminishing in number, who originate from overseas. Other distinctive characteristics include: the proportion of parental applicants, for decades very low in Ireland, now constitute by far the single largest source of domestic applications; the relatively high proportion of applications from grandparents and the low proportion from single third party applicants and from foster parents.

7.4.2 Role of Adoption Agencies and Other Administrative Agencies As the Irish adoption process has, until the introduction of the Adoption (Amendment) Act 2017, been almost exclusively concerned with non–marital children, the nature of the contact initially made between an adoption agency and an unmarried mother has had a significant influence on the way in which the process has in practice functioned. The Council of Irish Adoption Agencies provides a forum for all ‘accredited bodies’ and statutory adoption services.74

7.4.2.1

Adoption Agencies

For most of the children concerned, their point of entry to the Irish adoption process has been through the offices of a registered adoption agency. Currently, the Child and Family Agency (Tusla), through its national network of community based offices,

73 Some

such opportunities may be available through private or agency based practice but not as a statutory service. 74 The Council was founded in 1961. See, further, at: http://councilofirishadoptionagencies.com.

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many of which function as adoption agencies, is the main provider of adoption services. Voluntary or Independent Adoption Agencies Traditionally, the Irish adoption process rested largely on voluntary agencies which have been and continue to be, organised and run on a denominational basis: almost all of which were attached to the Catholic Church; though a few were exclusively Protestant. Their collective contribution to adoption practice may be judged from the simple fact that the majority of orders granted have been in respect of placements made by them. As observed by the Review Committee “Voluntary agencies have won wide acceptance from the public and are extensively used. Furthermore, they are sometimes perceived as being likely to carry out their work in a more discrete and confidential manner since they are not part of a larger public authority system”.75 The process continues to involve a steadily diminishing cohort of voluntary agencies.76 While domestic agencies operate on a not-for-profit basis, a number of international agencies, mostly concerned with intercountry adoptions, are now registered as accredited agencies, some of which are commercial. As domestic adoption shrinks so prospective Irish adopters are increasingly turning to U.S. based for-profit agencies, a development which is steadily introducing a commercial element into the Irish adoption process. Since the 2010 Act came into effect such agencies have been required to register with the Authority as ‘accredited bodies’. Accredited Bodies Under s 125(3) of the 2010 Act, a person may receive a child for the purposes of adoption only when that placement has been made by an accredited body or the Child and Family Agency, unless the person is a parent or relative of the child or the spouse of a parent of the child. There is no statutory duty requiring them to ensure that all placement decisions are taken by formally constituted adoption panels but their assumption of such responsibilities is a notable characteristic of the adoption process in this jurisdiction. A similar situation exists in relation to the provision of an adoption service. There is a statement of broad principle that a service for the adoption of children should be available but its actual provision is entirely at the discretion of the Child and Family Agency and that of such voluntary organisations as may have the necessary resources. In relation to intercountry adoptions, the Authority has approved the following as accredited bodies: ARC Adoption Ltd; and the Helping Hands Adoption Facilitation Agency. Notably, in keeping with s 125(3) of the 2010 Act, the Authority has made it mandatory for all applications to be processed through ARC, the agency accredited for that purpose: incurring the consequent financial burden imposed by that agency; and with retrospective effect on those applicants holding a ‘live’ pre-2010 declaration. 75 Report

of the Review Committee on Adoption Services, Government Publications, Dublin, 1984, para 7.21. 76 Currently, the following voluntary societies are registered as accredited adoption agencies in Ireland: Cunamh; PACT; St Attracta’s Adoption Society; St Louise Adoption Society; CLANN; St Catherine’s Adoption Society; and St Maura’s Adoption Society.

7.4 Regulating the Adoption Process

7.4.2.2

313

The Child and Family Agency (Tusla)

This statutory organisation, established in January 2014 under the Child and Family Agency Act 2013, is required by s 8 to support and promote the development, welfare and protection of children (including adoption services, as previously provided by the Health Service Executive). It is now the competent authority for processing domestic adoptions and ‘accredited bodies’ work with it in all areas of adoption. Childcare services, including foster care and residential care, are among the responsibilities of this agency. Under s 37(3) of the Adoption Act 2010 it is required to provide information and carry out assessments of applicant adopters resident in its functional area.

7.4.3 Role of the Determining Body In Ireland, adoption proceedings are heard in an administrative rather than a judicial setting with hearings held by the Adoption Authority, and orders are made or refused by it.77 Nonetheless, the High Court plays a significant role in the Irish adoption process.

7.4.3.1

Birth Fathers

The Authority is statutorily required to refer to the court: • where the Authority does not know the identity of the birth father, or • where the Authority has been unable to locate the birth father in order to notify and consult him, or • where due to the nature of the relationship between the birth mother and father it would be inappropriate to notify and consult the birth father.78 It will also do so in relation to disputed legal matters, including those involving disputed parental consent.79

77 But,

see Walsh J., in Binchy, W., Casebook on Irish Family Law, Professional Books, Dublin, 1984, at p. viii for a critical analysis of the authority of the Adoption Board (predecessor of the Adoption Authority) to make adoption orders without judicial endorsement. 78 In 2018, 1 application was made to the High Court under s 18 of the 2010 Act, and 7 under s 30, to allow an infant to be placed for adoption without consultation with the birth father (in 6 cases the identity of the father was unknown); all were granted. 79 The Authority suggests that the 2010 Act be amended to permit it to proceed with an adoption in circumstances where the birth father has not been consulted rather than delay proceedings to allow for a determination by the High Court.

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The Adoption Act 2010, S 54

To allow the Authority to make an adoption order, the Child and Family Agency (or in certain instances, the applicants), must make an application to the High Court under s 54 in the following instances: • where parental consents are not forthcoming, or • where there is an issue with regard to the circumstances of the placement of the child with the prospective adoptive parents, and • where it can be demonstrated that the parent(s) have failed in their duty to their child and adoption is in the child’s best interests.80 7.4.3.3

The Adoption Authority

The Adoption Authority of Ireland (or Udaras Uchtála na hEireann, the Authority) as established by the 2010 Act, s 94, is the lead regulatory body for adoption and is accountable to the Minister for Children and Youth Affairs. It is also the Central Authority for the purposes of both the Hague Convention adoptions and those made as a consequence of bilateral agreements. In addition to its role, under s 20 of the 2010 Act, of making domestic adoption orders and recognizing those made outside the jurisdiction, the Authority is vested with the duty and the powers necessary to register, inspect and monitor all bodies engaged in adoption work. The main functions of this body are: making/refusing adoption orders; granting the crucial ‘Declarations of Eligibility and Suitability’ required by every prospective domestic and intercountry adopter to enter the adoption process81 ; formally recognising foreign adoptions; supporting post-adoption tracing and contact activities; and contributing to the further development of adoption related policy and practice. It also maintains certain registers: the Register of Accredited Bodies; the Register of Intercountry Adoptions; and the National Adoption Contact Preference Register. The Information & Tracing Unit, established in 2005, is directly managed by the Authority.

7.4.4 The Registrar General To this official falls the duty of maintaining the Adopted Children Register, recording in it the particulars of every child in respect of whom an adoption order has been issued and controlling access to the registered information (see, further, below). Under s 83 of the 2010 Act the Authority must forward to the Registrar General 80 In 2018, 13 applications were made to the High Court under s 54 of the 2010 Act: 8 were in respect of situations where one or both birth parents were not willing to consent to the adoption; all were granted. 81 The Authority granted 81 declarations in 2018.

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all details relating to every newly adopted child and these must then be entered in the Adopted Children Register. There is provision, under s 89 of the 2010 Act, for the Minister for Social Protection, following consultation with the Minister, to issue regulations specifying the details to be recorded in entries made in the Register.

7.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria For applicant, subject and relinquishing parent, access to the adoption process has certain distinct characteristics. Applicants such as birth parents and relatives attract relatively little professional scrutiny while foster parents comprise a low proportion of total annual applicants. Few children subject to care orders and/or with special needs are eligible for adoption. Intimately related to all the foregoing is the fact that the proportion of birth parents who are unwilling participants in adoption proceedings is very low.

7.5.1 The Child The Adoption (Amendment) Act 2017 amends the 2010 Act to ensure that all children have the right to be adopted. Access to the adoption process is permitted to children who reside in the State, are at least six weeks old and under 18 years of age, though they need not have been born in this country,82 and where: both birth parents consent to the placing of the child and to the making of an adoption order; or where a child has been in care for at least 36 months and their parents have failed in their duty towards them to such extent that the safety or welfare of the child is likely to be prejudicially affected. It also lengthens the required time period of foster care from 12 to 18 months before foster parents can make an adoption applicantion.

7.5.1.1

The Welfare Threshold

The Adoption (Amendment) Act 2017 established the best interests of the child as the most important consideration in any adoption, and set out the criteria for its interpretation and application. Nevertheless, there remains evidence that at point of entry to the adoption process this principle continues to have a less than determinative weighting. So, for example: 82 In

Eastern Health Board v. An Bord Uchtála [1994] 3 IR 207, which concerned an Irish couple who had brought to Ireland a child born in India, the Supreme Court noted that the only “connecting factor” which a child placed for adoption in Ireland must have is mere residence in Ireland and not Irish citizenship or domicile.

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• the consent of the child is not a statutory requirement; • the consensual adoption of children by relatives, most usually the child’s birth mother and her spouse—in which the welfare factor has a nominal role—is a particular feature of adoption in this jurisdiction; • evidence of criminal abuse or neglect of a child is in itself insufficient grounds for the compulsory placing of that child for adoption, there must also be evidence of an ‘abandonment’ of parental responsibilities; • an adoption application in respect of a child subject to a care order must come from foster parents i.e., it is a private rather than a public initiative; and • the lack of a range of statutory private alternative orders that would obviate the need for adoption (excepting guardianship) is an important and characteristic feature of the law in this jurisdiction. These features illustrate the lack of any leverage available for judicial assertion of the public interest represented by the welfare principle to constrain the private interests represented by an adoption order.

7.5.2 The Birth Parents Traditionally, the donor role of a voluntarily relinquishing unmarried mother has been the most characteristic feature of the adoption process. In domestic proceedings, however, that role had been largely displaced by the birth parent (usually the mother) as applicant in a step-adoption in which the unmarried birth father may appear as a respondent. This procedure, whereby a birth parent applied to adopt their own child, ended with the introduction of the Adoption (Amendment) Act 2017 which provides that such a parent no longer has to adopt their birth child with their partner but instead simply retains their parental rights in tandem with the adopter. In addition, one or both married parents of a child subject to a care order may now appear as respondents in adoption proceedings lodged by the child’s foster-parents.

7.5.2.1

Unmarried Mother

As the Supreme Court has noted although “an unmarried mother does not possess the inalienable and imprescriptible rights attributable to the family under Article 41 she does possess rights under 4.3 of the Constitution”.83 These rights are statutorily stated in the Guardianship Act 1964, s 6(4), which declares that the mother of an ‘illegitimate’ child shall be the guardian of that child’ and s 10(2) adds that ‘as guardian of the person, shall, as against every person not being, jointly with him, a guardian of the person, be entitled to the custody of the infant, and shall be entitled to take proceedings for the restoration of its custody of the infant against any person 83 Northern

Health Board v. An Bord Uchtála at para 47.

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317

who wrongfully takes away or detains the infant’. This statutory safeguard has often and for many years been relied upon to deny, or at least resist, the intervention of authorities who consider that adoption may be in the best interests of her ‘illegitimate’ child.84 Only an unmarried mother is therefore entitled to voluntarily relinquish a child for the purposes of adoption. This she must do with a clear intent and may do so in favour of a relative and, until the introduction of the 1998 Act, she could have done so in favour of a complete stranger. She is not legally obliged to serve advance notice on any professional or government agency nor is their approval for the placement required. The only legally operative criteria is that her decision to relinquish is accompanied by her full and informed consent given at time of placement and reiterated at time of hearing. That consent, given at time of placement for adoption but subsequently rescinded, is by far the most common reason for birth parents to subsequently appear in court as respondents. In N v. Health Service Executive85 the Supreme Court held that placing a child for adoption did not amount to an abandonment of the child within the meaning of Article 42.5 of the Constitution and the natural parents, who had married since the placement were entitled to the return of their daughter. However, in Northern Health Board v. An Bord Uchtála the court seemed to form the view that because the sole parent had willingly and continuously allowed her daughter—aged almost 14 and suffering from cerebral palsy—to become a member of the foster parents family and “has left and will continue to leave to them the crucial decisions regarding J’s health and education and the carrying into effect of those decisions, together with the by no means insubstantial financial costs that arise from them. In my view, this situation amounts in a real and objective sense to abandonment of her rights as a parent”.86 This rationale is curious: while undoubtedly an accurate summary of the effects of 13 years of foster care; it does seem to skirt the fact that these effects are wholly attributable to the causal intervention of the Health Board whose authority—and responsibility for costs and all significant decision-making regarding J’s care and education etc.—was thereafter borne by it rather than by the foster parents.

7.5.2.2

Unmarried Father

Until the introduction of the 2010 Act, the unmarried father of the child in question did not come within the statutory definition of parent for the purposes of adoption law, unless he had acquired legal guardianship (either through signing a statutory declaration,87 or by a court order), and his consent for adoption proceedings to be 84 G

v. An Bord Uchtála, [1980] IR 32. IESC 60. To the same effect see In re J [1966] IR 295 and In re JH (An Infant) [1985] IR 375 where the birth parents of children who later married successfully relied on the provisions of Articles 41 and 42 of the Constitution and regained custody of their child placed for adoption. 86 Op cit, per McGuinness J at para 75. 87 See, S.I. No 5 of 1998. 85 [2006]

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commenced in respect of his child was not required. Although in Western Health Board v. An Bord Uchtála88 the Supreme Court found that a father, who had had little or no contact with his child and had played no parental role part whatever—but was married to, if separated from, the mother—could nevertheless not be held to have abandoned all his parental rights. On the eve of the introduction of the 2010 Act, however, the Irish courts gave their strongest recognition yet to the rights of such a father when O’Neill J. set aside an adoption order on the grounds that the Adoption Board had failed to notify the unmarried father before granting the order in respect of his daughter with whom he had had a fairly normal parenting role for the first 3 years of her life.89 His right to notice is now confirmed by s 16 of the 2010 Act which gives him the right to advise the Authority, in writing, of his wish to be consulted in relation to the proposed placement of his child for adoption or of an application by the mother or a relative of the child for an adoption order in respect of the child. If the father engages, with the Authority or an accredited body, he will be advised to acquire guardianship rights if he wishes to challenge the mother’s decision.90 Should he decide to do so, then the matter will be deferred for 21 days to allow him to apply for guardianship and with it the right to give or withhold his consent first to placement and then later to the adoption. However, in 2019 the Adoption Authority applied to the High Court and was granted orders permitting it to proceed with adoption proceedings in eight cases without having to consult with the birth fathers: in one case the circumstances were such that that it was deemed inappropriate to even notify the father; and in the other cases, their identity was unknown.

7.5.3 The Adopters: Eligibility and Suitability Criteria The following persons are eligible to adopt: • a married couple living together; • a married person alone—in this circumstance the spouse’s consent to adopt must be obtained, unless they are living apart and are divorced or separated under (i) a court decree or (ii) deed of separation or (iii) the spouse has deserted the prospective adopter or (iv) conduct on the part of the spouse results in the prospective adopter, with just cause, leaving the spouse and living apart; • couples living together in a civil partnership or co-habiting; • a step-parent; • the mother, father or a relative of the child (relative meaning a grandparent, brother, sister, uncle or aunt of the child and/or their spouse); and • a widow or widower. 88 [1995]

3 IR 178.

89 See, WS v. The Adoption Board and Others, Unreported, High Court, O’Neill J. (6 October 2009). 90 The

Adoption Act 2010, s.17.

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A sole applicant who does not come within the last two classes of persons may only adopt where the Authority is satisfied that, in the particular circumstances of the case, it is desirable to grant an order. The absence of an upper age limit for prospective adopters is a notable characteristic of the adoption process in this jurisdiction. Since 1st November 2010, the eligibility and suitability of all prospective adopters is a matter that falls to be assessed by the Child and Family Agency, or an accredited body and, if approved by the Adoption Authority, the latter will then issue a ‘declaration’ to that effect. A ‘Declaration of Eligibility and Suitability’ to adopt is valid for two years, can be renewed for a further year, but thereafter a re-assessment is required. The criteria to be satisfied are the same for all third party adopters, whether pursuing a domestic91 or intercountry92 adoption, but they are more relaxed for first party adopters.

7.5.3.1

Third Party Adopters

Traditionally, the eligibility criteria have been framed to ensure that third party applicants closely conform to the constitutionally approved marital family unit. Since the introduction of the Adoption (Amendment) Act 2017 joint applications may now be submitted not only by married couples but also from cohabittees—whether heterosexual or same sex—who have been resident within the jurisdiction for at least the past 12 months.93 There is a legislative minimum age requirement of 21 years but no stated maximum age limit94 ; if the child is to be adopted by a relative of the child, only one applicant must have attained the age of 21. A singular characteristic of the Irish adoption process is that applicants must satisfy the requirements of s 32 of the 2010 Act by being of the same religion (if any) as the parents of the child, or of the child’s mother (if the child is born of parents not married to each other) to be adopted or by belonging to a religion which is known to every person whose consent to the making of the adoption order is necessary; the latter requirement is merely to know, not to also approve. Adoption by a widow or widower is now equally permissible under the Adoption Act 2010 (though not expressly stated as such).

91 In its annual report for 2012 the Authority recorded that it had granted a total of 79 declarations of eligibility and suitability in the previous 12 months to prospective adopters of Irish children. 92 The same report noted 181 similar declarations in favour of prospective intercountry adopters over the same period. 93 See, State (AG) v. An Bord Uchtála [1957] Ir Jur Rep 35 (Supreme Court) when an adoption order was quashed because a purported joint application by two spouses was in fact made without the knowledge of one of them. 94 However, the Authority has recommended an upper age limit for prospective parents which would ensure a maximum age difference of not more than 42 years between applicant/s and child at time of placement. It notes that 2012 statistics reveal most intercountry adopters as aged between 40 and 51 years with 40% being over 45 years of age. See, further, Adoption Authority, Annual Report 2012, at: http://www.aai.gov.ie/attachments/article/32/Annual%20Report%202012.pdf.

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The only third party applicants eligible to adopt a marital child are the foster parents of that child who have to satisfy carer tenure criteria which, unlike other jurisdictions, provides them with a power rather than a right to apply to adopt.95 Section 34 of the 2010 Act deals with suitability criteria and sets out a list of requirements which must be met before the Authority can make an adoption order. The Authority must be satisfied that the applicant, or if applicants then each of them: (a) (b)

is a suitable person to have parental rights and duties in respect of the child, and without prejudice to the generality of paragraph (a), is of good moral character, in good health and of an age so that he or she has a reasonable expectation of being capable throughout the child’s childhood of— (i) (ii) (iii) (iv) (v)

(c) (d)

fulfilling his or her parental duties in respect of the child, promoting and supporting the child’s development and well-being, safeguarding and supporting the child’s welfare, providing the necessary health, social, educational and other interventions for the child, and valuing and supporting the child’s needs in relation to his or her— (I) identity, and (II) ethnic, religious and cultural background,

has adequate financial means to support the child, and has been provided with appropriate information, advice and counselling concerning adoption.

7.5.3.2

First Party Adopters

Family adopters in this jurisdiction do not have to satisfy rigorous eligibility and suitability criteria. There is an assumption that the welfare of a child can only be enhanced by family adoption. There is no requirement to serve notice of an intention to make a family placement, no opportunity for professional assessment prior to application and no possibility of a discretionary judicial decision to issue an alternative order on the grounds that such would be more compatible with the child’s welfare. In this jurisdiction, the legal standing of parents or other relatives attracts preferential treatment in law.

95 The Adoption (Amendment) Act 2017 amended the 2010 Act to require foster carers to provide a minimum of 18 months (rather than the previous 12 months) continuous care and to be supported by the Child and Family Agency before they can be considered as applicants.

7.5 Threshold for Entering the Adoption Process …

7.5.3.3

321

Intercountry Adopters

Since November 2011 applicants approved by the Child and Family Agency, and consequently issued with a ‘declaration’ by the Authority, have been eligible to adopt only from a Hague compliant country. This has resulted in a drastic fall in adoptions.96 In 2018, the Authority granted 53 declarations and 41 entries were made in the Register of Intercountry Adoptions for that year. The Authority has expressed its concern regarding the changing profile of children now the subject of intercountry adoption and the corresponding need to ensure that this is matched by changes to the profile of approved adopters.97 International trends reveal that such children are now a good deal older than formerly, averaging 3–4 years in age, likely to have spent up to 44 months in institutional care, have siblings and problematic health care issues. This indicates that eligibility and suitability criteria should be adjusted to ensure that adopters: are not too old (a maximum of 42 years age difference between adopter and child); have a working familiarity with the child’s native language and culture; and are prepared to cope appropriately with the attachment issues (and probable health and social care issues) typical of children who have experienced prolonged institutionalisation.

7.6 Pre-placement Counselling In Ireland, s 4 of the 2010 Act introduced a statutory obligation on all accredited bodies to ensure that the consent of a birth mother or guardian is preceded by counselling, or the offer of it, whether in relation to a domestic or an intercountry adoption. The provision defines this service as including: (h) providing information, advice and counselling concerning adoption to a mother or guardian who proposes to place a child for adoption.

Pre-placement counselling services will be arranged, if not provided, by an accredited body and offered to the mother of the child concerned and will be made available to the father of that child, but only if he has first acquired guardianship rights. Contrary to the law and practice in many other jurisdictions, there is no statutory requirement that provision is offered to both parents regardless of their marital status. Also, under s 6 of the Child Care Act 1991, the Child and Family Agency is required to provide or ensure the provision of “a service for the adoption of children”. It is empowered to do so by entering into arrangements with any accredited adoption agency.

96 In

2011 there were only 2, in 2012 there were 6 and 3 in 2013. Adoption Authority, annual report for 2012, further, at: http://www.aai.gov.ie/attachments/ article/32/Annual%20Report%202012.pdf.

97 See,

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7.7 Placement Rights and Responsibilities In practice, a child enters the adoption process when he or she is placed with prospective adopters. This is defined in s 4 of the 2010 Act, for the purposes of both domestic and intercountry adoption, as including any of the following activities: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k)

making any agreement or arrangement for, or facilitating, the adoption or maintenance of the child by any person; initiating or taking part in any negotiations the purpose or effect of which is the making of any such agreement or arrangement; causing another person to initiate or take part in any such negotiations; offering to enter into negotiations on behalf of the child’s parents or prospective adopters for the purpose of arranging an adoption; carrying out or making any arrangement for the carrying out of an assessment of eligibility and suitability; preparing reports on assessments of eligibility and suitability; providing information, advice and counselling concerning adoption to any prospective adopters; providing information, advice and counselling concerning adoption to a mother or guardian who proposes to place a child for adoption; providing information and advice concerning the child’s medical or other status in connection with adoption; placing a child with any prospective adopters; one or more of the following: (i)

(ii) (iii)

assisting— (I) adopted persons (18 years of age or over) in tracing their birth parents or other relatives, and (II) birth parents or other relatives (18 years of age or over) of adopted persons in tracing the adopted persons; counselling the persons described in subparagraph (i); mediating between adopted persons described in subparagraph (i) and birth parents or other relatives, both as described in that subparagraph.”

Whether made by parent or professional, any of the above steps will constitute the “making of arrangements for the adoption of a child”.

7.7.1 Authority to Place The placement decision must be taken by a person or body with the requisite authority; an initial consent is a legal necessity.

7.7 Placement Rights and Responsibilities

7.7.1.1

323

Placement by Birth Parent

This decision may still be taken on a private basis by the birth parent/s who remain entitled to place their child directly—albeit with a relative. As the number of annual orders made has steadily fallen, so too has the number resulting from parental placements.98

7.7.1.2

Consent

The consensual dimension of the adoption process is apparent in the requirement that ‘family’ placements, those made by an accredited body, and applications made under s 43 of the 2010 Act must rest on an initial full and voluntary parental consent. However, in ‘family’ placements, there is the possibility of a considerable lapse of time between placement and final consent.

7.7.1.3

Placement by Accredited Body

Under s 125(3) of the 2010 Act, a child may be placed for the purposes of adoption by an accredited body or the Child and Family Agency. An accredited body cannot place a child for adoption until that child is at least four weeks old. A national ‘matching panel’ facilitates the appropriate placement of an available child with prospective adopters. Foster Placement Where the child has been in a long-term foster placement for at least eighteen months and the foster carers decide to adopt, with parental consent, they may do so without recourse to the High Court. Where such consent is not forthcoming, or the child is a child of a marriage, the adoption must be processed via the High Court under s 54 of the 2010 Act. Such was the case in Northern Area Health Board WHPH v. An Bord Uchtála; PO’D99 which concerned a 14 year old girl who suffered from cerebral palsy, had been in the care of the foster parent applicants for the previous 13 years, and whose father had never been involved, his whereabouts being unknown. Her unmarried mother had psychiatric problems, mild learning difficulties and a chaotic lifestyle but had maintained erratic contact with her daughter and opposed the adoption application, stating a clear preference for maintaining the existing long term foster care arrangement. When the application came before the High Court, the Health Board declined to support it, most probably because of concerns for the health of the mother. The court, having heard clear testimony from the child that she 98 Of the 422 orders made in 1997, 36 were in respect of placements made by ‘natural mothers and others’; in 1999, the figures were 317 and 30 respectively; in 2003, 263 and 24; in 2004, 222 and 16; and in 2017, 472 and 2. 99 4 IR 252.

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wished to be adopted, authorised the Adoption Board to issue an adoption order. On appeal to the Supreme Court100 this ruling was upheld.

7.7.2 Placement Supervision In Ireland there is no specific statutory provision that gives rise to any protective duties owed to a child placed for adoption.101 Ultimately, all placements must be notified to the Authority, but this does not trigger any specific protective duties. However, there is considerable latitude available to the Authority under s 19 of the 2010 Act which states that “in any matter … relating to the question of the arrangements for the adoption of a child … the Authority … shall regard the welfare of the child as the first and paramount consideration.” This discretion enables the Authority to institute a programme of supervision, or delegate to the Child and Family Agency, if necessary to protect a child’s welfare interests.

7.8 The Hearing The hearing of an adoption application is conducted by the Adoption Authority and is administrative rather than judicial in nature,102 though the High Court may well have a role. Privacy, confidentiality, brevity and relative informality are the distinctive characteristics of a typical adoption hearing. Privacy is given protection by s 43(3) of the 2010 Act which allows the proceedings to be held “wholly or partly in private”.103 The division of responsibilities between the Authority and High Court is one of the most distinctive characteristics of the Irish adoption process. Under s 49 of the 2010 Act, the Authority may, like any court, state a case to the High Court on a point of law arising from an application: (1) The Authority may refer any question of law arising on an application for an adoption order or the recognition of an intercountry adoption effected outside the State to the High Court for determination.

In addition, a small number of very important issues relating to depriving parents of their constitutional rights are reserved to the High Court.

100 [2002]

IESC 75. regards ‘family’ placements, the care and maintenance provisions of s 56 and s 57 of the Health Act 1953 require advance notification of placement to be served on the Child and Family Agency while placements made by that agency are subject to the boarding out regulations. All adoption agency placements must be notified to the Child and Family Agency within 7 days. 102 As Walsh J. stated in the course of his judgment in G v An Bord Uchtála [1980] IR 32 at p.72. 103 Replicating a similar provision in s.16(3) of the 1952 Act as amended by s.3(5) of the 1988 Act. 101 As

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7.8.1 Where Consent Is Available Adoption in Ireland was traditionally based on consent and this very largely remains the case. Under s 28(1) of the 2010 Act “a consent to the making of an adoption order is not valid unless given … not earlier than 3 months before the application for adoption”. The parent/s whose consent is required must be informed of their right to withdraw consent at any time prior to the making of the order. In recent years, the disproportionate increase in family adoptions, which are seldom contested, has itself served to strengthen the overall consensual nature of the process. If the initial consent is found to have been involuntary then an adoption order cannot be made. An adoption process which began on a consensual basis may of course conclude otherwise, if a retraction of parental consent is successfully challenged by the applicants. The fact that an initial consent was defective, however, will not of itself prevent a subsequent consent from being valid.

7.8.2 Where Consent Is Not Available In Ireland, the law provides for the possibility of non-consensual adoptions in only two sets of circumstances. Firstly, where it can be shown that the initial placement decision was authorised by an informed parental consent which was subsequently withdrawn. Secondly, where there is compelling evidence of parental abuse or neglect amounting to an abandonment of parental responsibilities, this may result in a placement made by the Child and Family Agency under s 54 of the 2010 Act, which will begin and end on a non–consensual basis.

7.8.2.1

Dispensing with Consent; Private Law

In a private law context no statutory grounds exist for dispensing with parental consent at the time of placement.104 Much, if not most, case law has been focussed on the contractual grounds for affirming or discounting the consent already given by young unmarried mothers to the placement of a child for adoption. Even if given within 6 weeks of the birth of the child concerned, such consent will be upheld by the courts. It is a telling irony that—in this context—such grounds as exist to provide for the possibility of non-consensual adoption in respect of the child of an unmarried mother only become operative if she has already given a valid consent to placement. Also, in this jurisdiction there is no judicial discretion in relation to first party applicants to make a different order to the one sought (e.g. a residence order or 104 Except

in circumstances where the parent/guardian either suffers from mental infirmity or their whereabouts are unknown.

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parental responsibility order). The use of wardship, with its reliance on the principle that the welfare interests of the child are of paramount importance, has not played a key role in supplementing statutory powers and authorising non-consensual placements.

7.8.2.2

Dispensing with Consent; Public Law

The Authority is prevented, under s 26(1) of the 2010 Act, from making an adoption order without relevant consents. Where it is apparent to the Authority that although parental consent is unavailable there exist grounds for dispensing with the necessity for it then, under s 53(1) of the 2010 Act, the Authority shall “adjourn an application for an adoption order made to it and declare that it will make the adoption order if the High Court, by order under section 54(2), authorises it to do so”. The Adoption Act 2010, s 54, continued the provisions of the 1988 Act which introduced parental failure due to ‘physical or moral reasons’ as grounds for dispensing with parental consent to adoption, regardless of the marital status of such a parent. However, these grounds are not synchronised with those that constitute criminal fault or default in child care legislation. Case law has shown that parental inaction will be sufficient to convince a court that parents have ‘failed in their duty towards the child’ within the meaning of s 54 of the 2010 Act.105 Intent is not a requirement106 : the grounds may be satisfied even if the parent concerned is without blame and the failure is attributable to their suffering from a learning disability.107 Mere parental culpability, however grave, is insufficient108 ; the conduct must be such as to amount to an ‘abandonment’ of parental responsibilities109 and it must be attributable to both parents; failure by one parent but not the other will not satisfy this requirement. The court will require evidence that the parents, by fault or default, have behaved in a manner constituting an abandonment of all responsibilities in respect of the child; whether or not intended or involving actual physical abandonment.110 In Southern Health Board v. An Bord Uchtála MO’D & MO’D,111 the Supreme Court ruled that this required three distinct steps to be satisfied:

105 Previously

under s 3(1)(I)(A) of the 1988 Act. See, for example, The Southern Health Board v. An Bord Uchtála [2000] 1 IR 165 where the court was satisfied that while the father had actually committed the acts of abuse the mother was also culpable as she had failed to protect her child. 106 The Southern Health Board v. An Bord Uchtála, per Denham J. 107 See, NAHB v. An Bord Uchtála [2003] 1 ILRM 481. 108 See, In Re The Adoption (No 2) Bill 1987 [1989] IR 656 where the Supreme Court ruled that “Failure of parental duty established under sub-clause (I) (A) and (B) is not of itself evidence of abandonment”. 109 The degree of parental failure must be such as ‘constitutes an abandonment on the part of the parents of all parental rights’. 110 See, for example, The Southern Health Board v. An Bord Uchtála, op cit, and also The Western Board, HB and MB v. An Bord Uchtála [1995] 3 IR 178. 111 [2001] 1 I.R. 165.

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• whether the parents have, for physical or moral reasons failed in their duty towards the child; • whether such failure will continue without interruption until the child attains the age of eighteen; and • whether the failure constitutes abandonment. Moreover, the ‘abandonment’ must have already lasted for a minimum of 12 months and be likely to continue without interruption until the child reaches the age of 18. The courts have looked to past conduct as evidence of probability of continued parental failure and have had no difficulty finding that where conduct has satisfied the grounds of s 54 of the 2010 Act then it is likely to continue to do so throughout childhood.112 The grounds also require, in compliance with Article 42.5 of the Constitution, that the court is satisfied that the state, as guardian of the common good, should supply the place of the parents. This places an onus on the court to examine firstly whether it can do so and then whether in the circumstances of the particular child, it should make an order providing for permanent alternative care; which may in either instance indicate an alternative to adoption. Finally, it is not the fact of parental culpability which triggers a public agency initiative to place for adoption but the fact of foster care tenure which may or may not give rise to a private initiative to apply to adopt the child in question.113 In short, the formulation of the grounds for dispensing with parental consent has been worded so as to ensure compatibility with and subservience to constitutional principles with their emphasis on the ‘inalienable and imprescriptible rights’114 of parents. The result is that the grounds for non-consensual adoption are confined to a narrow definition of parental failure and to private rather than public responsibility for commencing relevant proceedings. Child and Family Agency and T. W. and M. W. v. An Bord Uchtála and E.M.115 was a not untypical case. The child at the centre of the proceedings was born in 2000 and referred to Child Protection Services in 2002 in relation to concerns regarding vulnerability to possible child sexual abuse by a family friend, parental neglect and exposure to domestic violence. Described as having a moderate learning disability, requiring 24-h care and support, she was admitted to Health Board care in 2007, placed with foster carers in 2010, a full care order granted in 2012 and an adoption application—opposed by birth mother—was lodged by foster carers in 2018. The birth mother, having mild learning difficulties, from the outset conceded that she 112 In

this context, it is perhaps worth noting the proportion of children aged 17 who were adopted in 2018, for whom presumably there was no difficulty in predicting that ‘abandonment’ would continue throughout the remainder of their childhood. To what extent was this a factor in the delayed proceedings? 113 In the U.K. jurisdictions, for example, the freeing process has for decades clearly placed a statutory responsibility upon the public child care services to initiate the process whereby a child in care may become available for adoption. In Ireland, this is left to the discretion of a child’s foster carers. 114 See, Articles 41 and 42 of the Constitution. 115 [2018] IEHC 172.

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was incapable of undertaking the care of her child and the court noted that this lack of capacity would continue throughout her daughter’s childhood. Justice Reynolds said it was clear from the evidence that there was no intention by the birth mother to neglect or care for her child, but that she simply did not have the capacity to provide adequate care. As such, he found that this constituted “abandonment” of parental rights and being satisfied that all three steps specified in Southern Health Board v. An Bord Uchtála116 were met, he granted orders pursuant to s 54(2) of the Adoption Act 2010. In 2019, the Adoption Authority successfully applied to the High Court on five occasions for permission to proceed with adoptions in circumstances where the consent of the birth mothers had not been obtained.

7.9 Thresholds for Exiting the Adoption Process There is no general right to adopt or to be adopted but in this jurisdiction the few alternative options available to the determining body result in a higher proportion of applications concluding with the issue of an adoption order than would be the case in most modern western jurisdictions.

7.9.1 The Welfare Interests of the Child The making of an adoption order is conditional upon a finding that to do so would be at least compatible with the welfare interests of the child concerned.

7.9.1.1

The Paramountcy Principle

Under s 19 of the 2010 Act, the Authority is required to ‘regard the welfare of the child as the first and paramount consideration’. However, there is no specification in the 2010 Act of matters that might be construed as constituting ‘welfare’, nor in sections 3 and 24 of the Child Care Act 1991 where reference is merely to the child’s welfare and best interests. Constraints There is no statutory requirement to take into account the likely effect of an adoption order on the welfare of the child throughout childhood; welfare is a factor relevant only at the time of hearing. Family adoptions are not subject to prior mandatory professional screening, the results of which could be taken into account in determining welfare. 116 Op

cit.

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In Ireland, the ‘blood-link’ factor has gained considerable judicial endorsement and has the capacity to transform welfare into the determining factor in third-party non-consensual applications.117 In other jurisdictions it is the ‘bonding’ rather than the ‘blood-link’ factor which is often determinative; as apparent, for example, in the availability of contact conditions to license the continuation of relationships which would otherwise be legally terminated by adoption. The lack of a more holistic long-term approach to welfare interests is also evident in the absence to-date of statutory disclosure procedures. In short, the welfare factor as a statutory consideration has a less specific, comprehensive and significant impact upon adoption in Ireland than in other contemporary western societies.

7.9.1.2

Voice of the Child

The Authority is required to “give due consideration to the wishes of the child, having regard to his or her age and understanding”118 ; but there is no evidence that a determining weight can be attached to those wishes.119 The Supreme Court has ruled, in Southern Health Board v. An Bord Uchtála,120 that although a child’s wishes must always be given consideration, the child’s age and susceptibility to outside influences requires that each case be considered individually. However, in FN and EB v. CO,121 Finlay Geoghegan J found that children aged 13 and 14 had a personal right to have their wishes heard in any decision made about their welfare in accordance with Article 40.3 of the Constitution. She noted that: Section 25 [of the Guardianship of Infants Act 1964] should be construed as enacted for the purpose of inter alia, giving effect to the procedural right guaranteed by Article 40.3 to children of a certain age and understanding to have their wishes taken into account by a court in making a decision under the Act of 1964, relating to the guardianship, custody or upbringing of a child.

7.9.2 Representing the Child’s Welfare Interests Whether or not proceedings are contested, the duty to bring welfare considerations before the Authority or court rests lightly and on comparatively few professionals in this jurisdiction. There is no guardian ad litem or equivalent professional, statutorily 117 See,

for example, RC & PC v. An Bord Uchtála & St Louse’s Adoption Society (8th February, 1985), unreported, HC. 118 Adoption Act 2010, s 24(2). 119 See, however, NAHB v. An Bord Uchtála, op cit, where the clear informed wish of the 12 year old child to be adopted was taken into account by the court when granting the order. 120 [2000] 1 IR 154. In contrast, note that in Scotland the right to give or refuse consent to their adoption has been available to children aged 12 or older from the introduction of the first adoption legislation (the Adoption of Children (Scotland) Act 1930, s.2(3)). 121 [2004] IEHC 60.

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charged with the duty to act as ‘court officer’ and represent the wishes or welfare interests of every child entering the adoption process, and no specific information on matters constituting ‘welfare’ as itemised in a statutory report form are required to be brought before Authority or court. The U.N. Committee on the Rights of the Child has recommended that steps be taken to “ensure that children be provided with the opportunity to be heard in any judicial and administrative proceedings affecting them, and that due weight be given to those views in accordance with the age and maturity of the child, including the use of independent representations (guardian ad litem) provided for under the Child Care Act of 1991, in particular in cases where children are separated from their parents”.122

7.10 The Outcome of the Adoption Process In this jurisdiction, legislative intent began by being almost exclusively concerned with regulating the consensual third party applications of indigenous, white, healthy and in all respects ‘normal’ non-marital babies. The extent to which it has moved away from this baseline may be seen in the present diversified outcome of the adoption process.

7.10.1 Adoption Order The domestic third party adoption order has declined both in aggregate and as a proportion of the annual total. Placements are almost always religion specific (i.e. Catholic child with Catholic adopter, Protestant child with Protestant adopter). Consensual applications have traditionally been associated with ‘illegitimate’ children and this very largely continues to be the case. The majority of applications used to relate to children under the age of two years123 ; though this is no longer true. The adoption process in this jurisdiction now includes a small but increasing number of children born within marriage and a similar small number who, having been the subject of care orders, have subsequently been adopted by their foster parents.124 122 See,

the last report of the U.N. Committee on the Rights of the Child, CRC/C/IRL/CO/2, Concluding Observations, 2006, at para 25(b). 123 For example, the Board’s annual reports reveal that in 1989 the number of children aged 24 months or less at time of placement with third party adopters amounted to 358 out of the total of 366; in 2000, they constituted almost 73% of the total of 96; and in 2006 accounted for 64 of the 69 placements or 92%. 124 For example, in 1989 the same report shows 4 such children who were subject to declarations made by the Board in favour of their foster parents under the 1988 Act and 3 who were adopted as a consequence of High Court proceedings taken under that Act. The comparable figures in the 1998 report are 16 and 1 respectively; and in 2000 only 5 orders were made under the 1988 Act while 9 declarations were made of which one concerned a marital child. Effectively, the only children born

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331

Most obviously there was also a relatively recent and significant—if shortlived— increase in the number of overseas children adopted.125 The proportion of third party applications which are contested, has always been very small and invariably arises in circumstances where a birth mother withdraws her consent to the adoption of her non-marital child. The number of orders granted in favour of birth mothers and their spouses grew rapidly in recent years to become the most significant characteristic of the Irish domestic adoption process; though, due to legislative changes, joint orders will now cease and overall step-adoptions are likely to decrease.126 Other types of first party application—by a birth mother acting alone or by a birth father and spouse—have remained consistently low.127 In 2012, of the 49 domestic adoption orders issued by the Authority, 33 were in respect of family adoptions. Such an application is seldom contested or unsuccessful, the subject is almost invariably a non-marital child and the order granted will always be full and unconditional. A consistent characteristic of the adoption process in Ireland has been the significant minority of orders made in favour of grandparents. In other jurisdictions, such applications may be open to professional or judicial challenge.

7.10.1.1

Conditional Adoption Order

In this jurisdiction, there is no legislative provision for orders permitting contact to accompany an adoption order.

7.10.2 Alternative Orders In Ireland guardianship orders have been the main private law statutory alternative to commencing adoption proceedings and a failed adoption application may well result in the issue of an order for guardianship or possibly in a wardship order. Rights of guardianship and custody are enshrined in sections 6 and 10(2)(A) of the Guardianship of Infants Act 1964. within marriage and available for adoption (as opposed to those who having been legitimated are then adopted) are those in the care of foster parents. 125 The Board’s annual reports provide the following data: 1996, 54; 1997, 51; 1998, 120; 1999, 176; 2000, 209; 2004, 375; and in 2006, 400. More recently, however, the Authority’s corresponding data reveals a different picture: in 2012 it made 242 entries in the Register of Intercountry Adoptions. 126 From 59 of the 1115 domestic orders granted in 1980 to 188 of the 615 granted in 1989, 252 of the 400 orders made in 1998, 199 of the 303 made in 2000 and 149 of 222 adoption orders granted in 2006. 127 For example, the Board’s report for 1989 shows that out of a total of 226 family adoptions, only 2 orders were in favour of ‘natural mother alone’, 0 for ‘natural father and wife’ and 2 for ‘natural father alone’. More recent comparable figures are: 1998–0, 0 and 1; 2000–0, 2 and 1; and in 2006, 0, 0 and 0. This information is no longer recorded by the Authority.

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7.11 The Effect of an Adoption Order The legal effects of an adoption order are as stated in the following provisions of the 2010 Act128 : s.58. – Upon an adoption order being made, or the recognition under this Act of an intercountry adoption effected outside the State— (a) the child shall be considered with regard to the rights and duties of parents and children in relation to each other as the child of the adopter or adopters born to him, her or them in lawful wedlock; (b) with respect to the child, the mother or guardian of the child, and the child’s father, shall, subject to section 57, lose all parental rights and be freed from all parental duties.”

This legislation has now expressly ensured that such consequences apply to both domestic adoptions and to intercountry adoptions registered in Ireland. That an adoption order continues to have its traditional effect was reaffirmed by the Chief Justice in I.O’T. v B. and the Rotunda Girls’ Aid Society and M.H. v. Rev. G.D. and the Rotunda Girls’ Aid Society.129 He then stated that “the effect of an adoption order is that all parental rights and duties of the natural parents are ended, while the child becomes a member of the family of the adoptive parents as if he or she had been their natural child”.

7.11.1 The Child For the one participant who has no statutory right of consent and, generally speaking, no say in the proceedings, the legal consequences of adoption are particularly far reaching. They may be seen in terms of the changes made to his or her legal status and the rights retained despite such changes: 128 Compare

(1)

The recognition of an adoption includes recognition of (a) (b) (c)

(2)

(3)

with The Hague Convention, Article 26: “

the legal parent-child relationship between the child and his or her adoptive parents; parental responsibility of the adoptive parents for the child; the termination of a pre-existing legal relationship between the child and his or her mother and father, if the adoption has this effect in the Contracting State where it was made.

In the case of an adoption having the effect of termination a pre-existing legal parent-child relationship, the child shall enjoy in the receiving State, and in any other Contracting States where the adoption is recognized, rights equivalent to those resulting from adoptions having this effect in each such State. The preceding paragraphs shall not prejudice the application of any provision more favourable for the child, in force in the Contracting State which recognizes the adoption.”

129 [1998]

2 IR 321.

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333

• the rules of ‘legitimation’ apply and s 58(a)130 prevents the subject from being treated in law as a non-marital child, thereafter he or she is regarded as “the child of the adopters” and “born to them in lawful wedlock”. • the rules of consanguinity apply and the child is instantly endowed not only with the name and social standing of his or her adopters but also with a complete set of new relatives—but there is no statutory bar on marriage or sexual relationships between the adopted person and a “sibling” of their new family; • the rules of domicile apply and thereafter the child’s domicile of origin is held to be that of the adopting parents rather than of the birth parents, though, as was pointed out by the Law Reform Commission,131 this is merely a legal assumption as there is no explicit statutory or judicial declaration to that effect; and • the rules of succession as stated in s 26 of the 1952 Act continue to apply, providing equality of succession rights between a testator’s adopted and birth children, as the 2010 Act has maintained the pre-existing law. Further, under s 11(1) of the Irish Nationality and Citizenship Act 1956: Upon an adoption being made, under the Adoption Act, 1952 (No.25 of 1952), in a case in which the adopter or, where the adoption is by a married couple, either spouse is an Irish citizen, the adopted child, if not already an Irish citizen, shall be an Irish citizen.

In practice, however, the Passport Office requires the foreign adoption to be recognised by the Authority (i.e. the adoption details must be entered in the Register of Foreign Adoptions) before it will issue an Irish passport to the adopted child.132

7.11.2 The Birth Parent/s The effect of an adoption order on the rights and duties of a birth parent is necessarily absolute and irrevocable. This was confirmed by the Chief Justice in IOT v. B133 when he held that no familial relationship can survive between a legally adopted person and his or her birth mother. An adoption order automatically quashes any order that preceded it in respect of a child. For example, any order allowing the nonmarital father (or any other person) access to the child is deemed to have lapsed upon the making of the adoption order. For a new family unit to be vested with the full complement of parental rights necessary to attract the protection of the Constitution the previous holder of those rights must first be equally thoroughly divested of them. As declared in s 58(b) of the 2010 Act: “with respect to the child, the mother or 130 Repeating

the wording and effect of s.24(a) of the 1952 Act. para 13.3 of the Report. 132 It is also worth noting that, if it can be proven to the Office’s satisfaction that a birth parent of an adopted child is or was an Irish citizen then the child is entitled to be an Irish citizen by descent irrespective of their adoption (as pointed out in the Law Reform Commission report, Consultation Paper: Aspects of Intercountry Adoption Law, op cit). 133 See, the Rotunda Girls’ Aid Society case, op cit. 131 See,

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guardian of the child, and the child’s father, shall, subject to section 57, lose all parental rights and be freed from all parental duties” .134 However the Adoption Act 2010, s 32, does make one concession to the birth parent/s. This provision prevents the Authority from making an adoption order in any case in which the applicant or applicants, as the case may be, the child and (a) the child’s parents, or (b) the child’s mother, if the child is born of parents not married to each other: are not all of the same religion (if of any religion), unless every person whose consent to the making of the adoption order is necessary under section 26 knows, when consenting, the religion (if any) of the applicant or each of the applicants, if they are a married couple.

7.11.3 The Adopters The legislative intent, to fully vest the adopters with the rights of marital parents in respect of the child, is evidenced by the nature of the parental responsibilities vested in them and in the reluctance to accept any attempt to condition the effects of an adoption order. The parental rights and duties transferred to the adopters include: • the custody and physical possession of the child; • entailing control of education and choice of religion together with powers to withhold consent to marriage and to administer the child’s property; • the duties of a guardian as understood in common law and as stated in s 10(2) of the Guardianship of Infants Act 1964 such as maintenance, protection, control and provision of appropriate medical treatment; • also rights to determine place of residence, choice of health and social services, travel and the right to withhold consent to a subsequent adoption; and • the full legal status of a parent within the terms of Articles 41 and 42 of the Constitution also thereby vest in the adopter. These transferred rights cannot be qualified in any way. So, the granting of an adoption order operates to extinguish any restriction on an adopter’s full enjoyment of parental rights imposed by a guardianship, custody or child care order which may have been in effect up to the time of hearing. This also operates to prevent the attachment of a condition to an Irish adoption order. Although the Adoption Authority has recommended legislative intervention to provide for circumstances “where a natural parent wishes to have continued contact with his or her child after the making of an adoption order, such contact can, in certain circumstances, be made a condition of the adoption order”.135 Adoptive parent/s may qualify for a continuation of boarding–out payments. Prior to the adoption proceedings a couple may, as foster–parents, have been in receipt of such payments in which case, under s 44(1) and (2) of the Child Care Act 1991, as amended by s 158(e) of the 2010 Act: 134 Essentially 135 See,

repeating the wording of the equivalent provision in s.24 of the 1952 Act. Adoption Board, Annual Report 2006, at p.16.

7.11 The Effect of an Adoption Order

(1)

335

Where a child is adopted under the Adoption Act 2010 and the child, immediately before the adoption, was being maintained in foster care by the Health Service Executive136 with the adopter or adopters, the Health Service Executive, subject to— (a) (b)

any general directions that may be given by the Minister, and any conditions that may be imposed by the Health Service Executive, may contribute to the child’s maintenance as if the child continued to be in foster care.

Details of all adoption orders granted are required to be passed by the Authority, under s 83 of the 2010 Act, to the Registrar. In respect of an intercountry adoption, the adopters must register the order in the Adoption Board’s Register of Foreign Adoptions if the child is to be recognised as an Irish citizen (see, below).

7.11.4 Dissolution of an Adoption Order Under Irish law, an adoption is generally regarded as being irrevocable and, in keeping with other common law jurisdictions, it cannot be terminated at the request of any of the parties involved. As in England & Wales (see, further, Sect. 6.11.4), any revocation, annulment, cancellation, termination, or setting aside of an adoption order can only occur on the grounds that the order was fundamentally flawed at the outset as a result of a procedural irregularity or where natural or constitutional justice has not been complied with in the adoption process. This indeed was the case in M v. An Bord Uchtála and the Attorney General137 when the Supreme Court held that an adoption order was null and void because the Adoption Board did not inform the birth mother that she could withdraw her consent to the adoption before the final order was made. In Attorney General v. Dowse,138 a crucial matter concerned the legal effect of revoking the registration of the adoption order in the Register of Foreign Adoptions. It was then found that, as the normal rules of private international law permitted the passive recognition of something not provided for in domestic law, so it was possible to recocognise the effect of the dissolution of an adoption in Indonesia and remove the entry in the Irish Register.139

136 Now

the Child and Family Agency. IR 287. 138 [2006] IEHC 64, [2007] 1 ILRM 81. 139 Note, however, that sections 7(1)(A) of the 1991 Act, as inserted by the 1998 Act, provides that if an adoption is “set aside, revoked, annulled or otherwise rendered void under and in accordance with the law of the place where it was effected”, it does not automatically follow that the adoption is correspondingly cancelled in Ireland. 137 [1977]

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7.12 Post-adoption Support Services Traditionally, in keeping with the essentially private nature of adoption, once an order was made then public intrusion ceased and in the absence of any statutory provision for ongoing post-adoption support and counselling for adopters140 this largely continues to be the case. There is still no legislative right to access post-adoption support services nor any specification for such services. However, the development of some such services by both voluntary agencies141 and the Child and Family Agency has been given added impetus by the requirement in Article 9C of the Hague Convention that every Adoption Authority should promote ‘the development of adoption counselling and post-adoption services’.

7.12.1 Adoption Support Services In practice no more than 20% of adopters receive post-adoption support. Perhaps the only consistent exception arises, as mentioned above, in the context of child care adoptions. An important point of difference between the standing of child care and all other adopters is that the former may qualify for a continuation of boarding-out payments. This is a purely discretionary matter for the Child and Family Agency. As there are very few child care adoptions the proportion of adopters receiving such support is small.

7.13 Information Disclosure, Tracing and Re-unification Services A distinctive characteristic of the adoption process in Ireland is the continuing equivocation in respect of legal rights to access adoption information.142 In fact Irish law has never provided a right for adopted persons to have automatic access to their birth certificates, neither has there ever been a legal right to access agency records for information143 on an adopted child’s family of origin, nor a reciprocal duty to

140 See,

Eekelar, What are Parental Rights’? [1973] 89 LQR 210; Hall The Waning of Parental Rights [1972] CLJ 248; and Bevan and Parry Children Act 1975 pp. 208–239. 141 Barnardos, for example, has provided a post-adoption service (including counselling and mediation) since 1977, see, further, at: http://www.barnardos.ie/what-we-do/our-services/specialist-ser vices/adoption.html. 142 See, further, Adoption Rights Alliance at: http://www.adoptionrightsalliance.com/inforecords. htm. 143 However, a High Court judgment in 1993 determined that, where an adopted person is seeking information under s 22(5) of the Adoption Act, 1952, then the Board is obliged to inform itself

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disclose such information.144 There is still no legislative provision for tracing and re-unification services; although in recent years, voluntary agencies—sometimes in conjunction with the Child and Family Agency (formerly the HSE)—have developed a capacity to provide such services; though the waiting list for services may extend to three years.145 In 2004, the Adoption Board established its Information & Tracing Unit and subsequently approved protocols, which are now in place and managed by the Authority, to govern the roles of information and tracing service providers. In the intervening ten years this Unit has developed to provide a significant level of service. The Adoption Authority noted in its 2012 annual report that the Unit had received 1800 requests for information in the preceding 12 months. In 2018 the Authority received 121 requests for birth certificate releases.

7.13.1 Information Disclosure Articles 7 and 8 of the U.N. Convention established the important guiding principle that every child is entitled to the information necessary to form their sense of personal identity. The Supreme Court in I.O’T. v. B. and the Rotunda Girls’ Aid Society and M.H. v. Rev. G.D. and the Rotunda Girls’ Aid Society146 found this to be compatible with the constitutional right to know the identity of one’s birth mother as guaranteed by Article 40.3 of the Irish Constitution. This case considered consolidated actions brought by two women informally adopted before legal adoption became available. The applicants had sought an order directing the agency that facilitated the placements to disclose the identities of their birth mothers. While these cases concerned informal adoption, the Supreme Court made a number of references to legal adoption. Keane J, in considering the right to privacy, stated: I find it difficult to imagine an aspect of human experience which falls more clearly into the constitutional area of privacy… than the circumstances of the natural mothers in the present case.

In short, the Supreme Court recognised a person’s unenumerated constitutional right to know the identity of his/her birth mother, but said that this had to be balanced against the birth mother’s right to privacy. It stated that neither set of rights was absolute. While the Court implied that access to adoption records might be appropriate in certain cases, this, it held, would depend on many factors including: about the circumstances of the individual case and to decide whether to release or withhold the information sought. 144 Section 22(5) of the 1952 Act generally prohibits public access to the Adoption Index. The prior permission of the Adoption Board is required before any information is released from the Index. Section 8 of the 1976 Act prevents a court from ordering the release of any such information unless satisfied that this is in the best interests of the child in question. 145 For example, the Adoption Rights Alliance. See further, at: (http://www.adoptionrightsalliance. com/searchandreunion.htm). 146 [1998] 2 IR 321. Also, see, Kelly, R., Motherhood Silenced: the Experiences of Natural Mothers on Adoption Reunion, Dublin, Liffey Press, 2005.

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• the circumstances surrounding the birth mother’s loss of custody of the child; • the current status and circumstances of the birth mother and the potential effect upon her of the disclosure of her identity; • the birth mother’s own wishes and attitude regarding the disclosure, and the reasons behind these wishes and the aforementioned attitude; • the current age of the birth mother and child respectively; • the attitude of the adopted child, including the reasons why he or she wishes to seek disclosure of his or her birth mother’s identity; the present circumstances of the adopted child; and • the opinion of the adoptive parents or other interested persons. Considerable judicial emphasis was placed on the birth parent/s privacy rights, which in this case concerned the rights of persons informally adopted. It is probable that even greater importance would be accorded to privacy in circumstances where an adoption order had been granted and the links between the birth mother and adopted child were legally severed. This case generated considerable public debate and resulted in the withdrawal of the Adoption Information Post-Adoption Contact and Associated Issues Bill 2016.147 Government efforts to revive the legislative intent to provide adoptee information rights foundered again more recently when, in 2019, the Adoption and Information Tracing Bill 2016 was finally abandoned having encountered the same seemingly insurmountable constitutional obstacles. As a consequence a fifth of all adoptees who in 2019 applied for access to their original birth certificate, and to the identifying information recorded on it, were refused by the Adoption Authority on the grounds that the birth parents had not given their consent to such disclosure.

7.13.2 Adoption Registers Responsibility for establishing and maintaining the Register of Accredited Bodies, the Register of Intercountry Adoptions and the National Adoption Contact Preference Register falls to the Adoption Authority while the Registrar General holds responsibility for the Adopted Children Register.

7.13.2.1

The Adopted Children Register

This Register must include details of date and place of birth, the date of the adoption order, the child’s first name and sex, and the name, address and occupation of the adopters. Under s 84 of the 2010 Act, the Registrar is obliged to maintain an index to the Adopted Children Register. Section 86 requires the Registrar to cross–reference 147 This

draft legislation provided for information disclosure services, the safeguarding of records, establishing and maintaining contact registers and provision of a counselling service for both adopted persons and birth parents.

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339

data in the Adopted Children’s Register with data in the Register of Births. The Index is not open to public inspection, and no information from it can be given to any person except by order of a court or the Authority.148

7.13.2.2

The National Adoption Contact Preference Register (NACPR)

The National Adoption Contact Preference Register was launched in 2005 and its success was evidenced in a report, published in November 2007, which assessed its first two years of operation.149 By the end of 2008, nearly 8000 people had registered with new applicants continuing to present each year in the hope of being matched to a relative. A decade later the Adoption Authority in its 2018 annual report recorded that it had processed 639 applications, a slight fall from the 667 recorded in 2017, and made 105 matches between adopted persons and birth relatives in that year (121 in 2017). As of the end of 2018, approximately 14,130 entries had been recorded in the NACPR, with over 1100 matches. Interestingly, the Authority notes that the breakdown in entries—70% adoptees and 30% relatives—reflects similar international usage of such registers.

7.13.2.3

The Register of Intercountry Adoptions

Under the 2010 Act, s 3(1), the ‘register of intercountry adoptions’ means ‘the register established under section 6 of the Adoption Act 1991 as the Register of Foreign Adoptions’. This requires the Authority to maintain a register in which it must enter all details relating to those foreign adoption orders obtained by Irish couples who have complied with the procedure as outlined in the 1991 Act. Under s 90 of the 2010 Act, the register is now continued in being and maintained by the Authority and s 152 gives the Minister the power to make regulations “prescribing the form of entries in the register of intercountry adoptions and the particulars to be contained in those entries”. Under s 90(3) of the 2010 Act, the persons who may apply to the Authority to enter particulars of an intercountry adoption effected outside the State in the register are: the adopted person; a person by whom the adopted person was adopted; or any other person having an interest in the matter. The adopters, however, if habitually resident in the State, are specifically required under s 93(4) to ensure that an application for registration is submitted to the Authority not later than 3 months after the date 148 Adoption

Act 2010, s 86(2). See, CR v An Bord Uchtála [1994] 1 ILRM 217 where Morris J. advised the Board that there could be no fixed policy regarding access to the Index: the welfare principle required each case to be assessed on its particular merits. Also, see, PB v AL [1996] 1 ILRM 54, DC v DM [1999] 2 IR 150 and PC v An Bord Uchtála, Unreported, High Court, McWilliam J. (25 April 1980). 149 See, An Bord Uchtála, the National Adoption Contact Preference Register, Dublin, 2007. Launched by the Minister for Children, Mr. Brendan Smith T.D., on Thursday 22nd November, 2007. See, further, at http://www.adoptionboard.ie/booklets/NACPR_final.pdf.

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when a child first enters the State after his or her intercountry adoption in another jurisdiction. The Authority, in turn, is then obliged under s 93(7) to enter particulars of the adoption in the register, together with a copy of the s 57 certificate (issued by the competent authority of the state of the adoption as having been effected under and in accordance with the law of that state) if satisfied that the adoption complies with the requirements of the 2010 Act. Failure to have a child’s adoption entered in the Register may result in the child not being recognised as an Irish citizen. By 2018, a total of 7709 entries had been made in this register.

7.13.3 Conditional Access Secrecy, as Barron J pointed out in the above mentioned Rotunda Girls’ Aid Society case,150 “has always been a paramount consideration in adoption law” and while “the public attitude to absolute secrecy has been weakened… there [does] not appear to have been any cases where communication has taken place against the wishes of the mother”. The law governing access is currently under review. At present an adopted person’s limited rights of access to identifying information remains compromised by their birth parent/s traditional right to veto the disclosure of such information.

7.13.4 Tracing and Re-unification Services The Adoption Board established its Information & Tracing Unit in 2004 and the National Adoption Contact Preference Register was initiated in 2005.151 There is no charge for the service which has been used particularly by adopted persons: for example, of the 6270 applications to join the register received in the first 2 years of its operation, 71% were from adopted persons. The applicants involved are referred to the local office of the Child and Family Agency or adoption agency that held the original placement file. The abovementioned draft protocols for information and tracing service providers, initiated in 2005, were operational on a national basis but have recently been withdrawn for updating. Generally, information and tracing enquiries can only be accepted from persons over the age of 18, or from the parents of adopted people aged 18 or over. In exceptional circumstances, where minors (under the age of 18) wish to seek information from their files or to trace members of their family of origin, the Authority, the Child and Family Agency or other agency involved may pursue an enquiry on 150 [1998]

2 IR 321. ground for establishing the NACPR was prepared by the report of the Law Society of Ireland’s Law Reform Committee Adoption Law: The Case for Reform, Dublin, 2000, followed by Adoption Legislation: 2003 Consultation and Proposals for Change, Stationery Office, Dublin, 2005.

151 The

7.13 Information Disclosure, Tracing and Re-unification Services

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their behalf but can only do so with the full consent and involvement of the adoptive parents. This would also apply where a parent or relative requests information regarding or seeks to trace an adopted child under the age of 18. In general terms, service applicants are seeking either ‘identifying information’ or non-identifying information’. The former records the identity of the individuals concerned, is treated as confidential and protected by the agency holding the relevant files. Most often, it takes the form of an original birth certificate, which contains the name and sometimes the address of the mother, and sometimes (though rarely) similar details in relation to the father. This cannot generally be released without an effort being made to consult the party about whom information is being sought. Enquiries seeking the disclosure of identifying information should be directed to the Authority which will then seek a report from the adoption society involved on the views of the parties to the adoption before making a balanced decision based on the evidence before it. Generally the Authority will release birth certificates: where the mother has been consulted about the application and is agreeable to the birth certificate being released; where the mother is deceased; where the agency has been unable to locate or contact the mother despite all reasonable efforts to do so. In some cases, where the Authority considers it necessary to protect the mother’s right to privacy, it may require a written undertaking from the adopted person that should he or she wish to make contact with her in the future, he or she will only do so by using the services of the adoption agency or health board or the Authority. It may refuse to release a birth certificate in cases where the mother has been consulted and is opposed to its release, or where it considers the mother’s privacy or safety might be put at risk by the release of the document. The same process of consultation must be followed in relation to the release of any other identifying information from the file, including the release to a birth mother or father of details relating to the adopted person. The latter refers to information sought by adopted persons such as medical information from their files, or details regarding family characteristics and talents, or seeking access to their original birth certificates. Enquiries from birth parents, almost always the mother, may be to obtain copies of the consent documents which they signed in relation to their children’s adoptions. Adopters may seek the release of an adoption agreement which they may have signed with the adoption agency. Such information is usually recorded in agency case files held by the agency or the Child and Family Agency (which holds many of the files that previously belonged to a now defunct adoption society). For many the need is for more than information. Increasingly, the Authority is receiving requests from persons seeking to ‘trace’, that is to make some form of contact (up to and including reunion) with the ‘children’ they have placed for adoption, with relatives who have been placed for adoption or, more broadly, with their families of origin. This service is facilitated by the above-mentioned Contact Preference Register. Right of access to the register is invariably limited to adopted persons of not less than 18 years of age: any public inspection and search of the registers, books and records are prohibited. The usefulness of this service is restricted to situations where there is matching information in the contact register; many birth parents

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choose not to be contacted and do not file information. Increasingly, in Ireland as elsewhere, official channels for facilitating tracing and re-unification are being bypassed by use of the internet and social network websites.

7.13.4.1

The Adoption Agency

In Ireland the bulk of adoption records were compiled by voluntary agencies, historically almost always established by religious organisations (usually the Catholic Church), with a tendency to operate discretely which most often included promises of secrecy given to birth parents that their identities and other significant information would never be revealed. Those agencies, or at least their records, remain crucially important to the many persons now seeking adoption information. Adoption agencies, known as ‘accredited bodies’, and the Adoption Authority, follow a policy of respecting any formal undertakings regarding information disclosure earlier given to birth parents. Effectively this means that where a veto on disclosure by someone now deceased is on record, or where a birth parent is contacted and reiterates their earlier veto, neither body will release birth certificate information. This has proven to be a very considerable obstacle to information disclosure. In circumstances where the consent of the birth parent/s (or adoptive parents) is either available or is not an issue, then it is to the adoption agency that enquiries seeking the disclosure of non-identifying information are best directed. This agency—which organised the original adoption placement, or the Child and Family Agency which now archives their records—holds the key to the context surrounding a particular adoption and this information, if on file, is generally readily accessible.

7.13.4.2

The Role of Adoption Support Agencies

The five Child and Family Agency Regional Adoption Services, with 11 offices countrywide, are the main providers of adoption support services. These offices hold records of adoptions handled by the local authorities/health boards and they also hold many of the records of the adoption agencies that have closed down over the years. The 10 adoption agencies, now registered as accredited bodies, along with the Child and Family Agency Adoption Services, constitute the basic delivery framework for a national adoption support service.

7.13.4.3

Agency Records

The record keeping of religious adoption agencies was often judiciously edited, deliberately obscured or factually inaccurate, and in some instances accompanied by a policy of routinely destroying files at periodic intervals. There are still no standard requirements in respect of the records which an adoption agency should maintain, and

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in practice there is great variation in the nature and detail of information collected. Although Article 22 of the Convention on Adoption 2008 requires all adoption related information to be collected and stored for a minimum period of 50 years, there is no specific provision imposing an equivalent duty on accredited bodies, or on any other agency, in the 2010 Act.152

7.14 Conclusion Adoption in Ireland, in its brief legislative history, has acquired certain characteristics; some of which may be attributable to the Brehon law legacy and its reliance upon formal reciprocal kinship care arrangements within and between clans. In its relative openness, its weighting towards family applicants, marginal relevance to children in care, comparatively high recourse to overseas sources and its long-standing reliance upon the alternative of guardianship (and to a lesser extent, on wardship), the characteristics of adoption in this jurisdiction now more closely resemble those of New Zealand153 than of neighbouring jurisdictions in the U.K. Most obviously adoption in Ireland is rapidly diminishing: by 2013 the volume of annual orders issued had shrank to a fraction of those made 30 years earlier. One unavoidable and chastening realisation that follows on from acknowledging this sharp tapering off in the flow of annual adoptions is that the majority of all Irish adoptions therefore occurred within and were a consequence of the invidious political context established by Church/State collusion in the mid-to-late twentieth century. By the end of the second decade of the twenty-first century, adoption in this country had become very largely an intercountry process, providing for children in need from other countries the permanence of care outside their family and culture of origin. It is now also essentially a consensual process, presided over by an administrative rather than a judicial body that makes or refuses unconditional adoption orders. The special position of the Roman Catholic Church, religion in general, the legal integrity of the marital family unit, an established non-interventionist child care policy and a strong tradition of reliance upon extended family networks to supplement or substitute for parental responsibilities can all be seen to colour the law, policy and practice of adoption. Essentially, these characteristics reflect the continuance of legal presumptions favouring the marital nuclear family, Christianity and the maternal

152 Note

that advocacy groups for women forced to work at the Catholic Church’s Magdalene laundries launched a campaign in February 2014 requesting that the government legislate for the release of more than 60,000 files allegedly withheld by the state, private adoption agencies and the Catholic Church. 153 See, Law Commission, Adoption and its Alternatives—A Different Approach and a New Framework, Wellington, New Zealand, 2000. This report draws attention to the particularly high rate of intercountry adoption (116 per million in 1998 compared with 26 per million in Sweden and 117 per million in Norway) at p. 119.

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bond. However, the main distinguishing feature of the adoption process, as clearly revealed in its output, is a rapidly increasing trend towards privatisation. The use of adoption by a birth parent and spouse to acquire maximum rights and full parental status and thereby deny rights and status to others is very evident in Ireland. The assertiveness with which private applicants now use adoption can also be seen in the increase in applications relating to children from other countries. This choice is to some extent a forced one: because of the sharp and continuing decline in the number of children available for adoption as a consequence of either the voluntary relinquishment or statutory removal of full parental rights; the equally true corollary being that a high proportion of birth parents are now retaining responsibility for their children. In that context the growing involvement of intermediary agencies, levying fees which restrict access to adoption to high income applicants, also indicates the resilience and indeed dominance of private interests in the Irish adoption process. The lack of use of adoption by public child care agencies has very evident from the annual statistics which show a steady divergence in the correlation between the annual statistics for children in care and adoption orders. In Ireland, the law has now changed to facilitate the government’s aim to “ensure that adoption is an option available to all children who might otherwise be denied a permanent home and stable relationships”.154 However, while there are some indications of a resulting increase in the adoption of children from the care system, as of 2020 these remain very tentative.

154 See,

Report of the Review Committee on Adoption Services, Adoption, Dublin, Government Publications, 1984 at p. 10.

Chapter 8

United States of America

8.1 Introduction The United States of America is a federation of 50 states and the District of Columbia, each of which is a separate jurisdiction with independent responsibility for enacting legislation, providing a judicial system and for managing programmes of service provision. Family law, a matter constitutionally reserved to the states, includes issues and administrative systems relating to children, adoption and the adoption process. The federal government has responsibilities in relation to funding service programmes (though often only partially) across all states and an accompanying oversight role as regards monitoring their effectiveness. This power, exercised under the Spending Clause, provides it with considerable authority to shape state policy. The federal government also provides an overarching framework of law that sets out the parameters for state legislation and a federal judicial system that considers issues with a constitutional dimension. However, when it comes to engaging with international law this federated distribution of authority can give rise to jurisdictional problems. As Estin has commented “international family law has fallen into this federalism gap because international law lies beyond the competence of the states and family law has not been a foreign relations priority for the national government”.1 This chapter begins by examining the social and legal contexts that shaped the development of the adoption process in the U.S. and traces the legislative steps that produced the present framework of adoption law. A consideration of the emerging characteristics of adoption practice leads into an overview of contemporary adoption law and policy. The chapter then applies the template created earlier (see, Chap. 3) to track the legal functions of the adoption process and concludes with some comment on the more distinctive aspects of adoption in this jurisdiction.

1 Estin,

A.,L., ‘Families across Borders: The Hague Children’s Conventions and the Case for International Family Law in the United States’, Florida Law Review, Vol 62, 2010, pp.47–108, at p.66.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_8

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8.2 Background Statute law, policy and practice in relation to adoption are very largely determined at state or county level and vary considerably across the U.S.

8.2.1 The Social Context Giving Rise to Adoption The impact of adoption on U.S. society would be hard to overstate: some 140,000 adoptions occur annually; perhaps 7 million U.S. citizens are adoptees; and many more of its families have had some experience of adoption. The increase in the 1950s and 1960s was largely conditioned by the same factors as prevailed in the U.K. and more generally in the western world: generated by the same set of prevailing social values; fuelled by the considerable numbers of relinquishing unmarried mothers; and indicating the insatiable need of the many infertile married couples who wished for the child that could pass as their own. To some extent this can be viewed in terms of public status: the pressures on adopters, as much as on unmarried birth parents, to achieve social conformity—in terms of private, marital family units with children, all subscribing to much the same value system—were considerable.

8.2.1.1

Marriage and Family Breakdown

In 1980, the U.S. marriage rate was 15.9 (per 1000 of the population aged 15–64), falling to10.6 in 2008 but by 2018 it had reached 6.5.2 It has been estimated that since 1980, the marriage rate has fallen by about 45%, the out-of-wedlock birthrate doubled between 1983 and 2008 with 41% of children now being born to unmarried mothers (73% for African Americans).3 In 2019, a report from the Pew Research Center showed that a majority of Americans consider that “marriage is obsolete”: they are now cohabiting more, marrying less, and marrying much later in life.4 The U.S. divorce rate peaked in 1980 at 7.9 (per 1000 of the population aged 15–64) and has declined slowly but steadily ever since—dropping to 5.2 in 2008 and down to 2.9 in 20185 —though it is still among the highest in the world.6 It would 2 See,

further, at: https://www.statista.com/statistics/195951/marriage-rate-in-the-united-statessince-1990/. 3 See, Center for Disease Control, National Vital Statistics, 2009. 4 See, the Pew Research Center, at: https://www.pewsocialtrends.org/2019/01/17/generation-zlooks-a-lot-like-millennials-on-key-social-and-political-issues/#gen-z-and-millennials-have-sim ilar-views-on-gender-and-family. 5 See, further, at: https://www.statista.com/statistics/195955/divorce-rate-in-the-united-statessince-1990/. 6 See, further, the Heritage Foundation, ‘The Divorce Rate Is Declining but Still High’, at: https:// www.familyfacts.org/charts/120/the-divorce-rate-is-declining-but-still-high.

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seem probable that impermanent family structures and serial parenting are more likely to result in children with attachment issues and for some this will manifest itself in behavioural problems that may well lead them into the public welfare system.

8.2.1.2

Unmarried Mothers

The stigma of ‘illegitimacy’ and with it the complications for any entitlement under the laws of inheritance and succession presented a very real burden for the child of an unmarried mother and one which the latter was naturally anxious to avoid for her child. Unmarried mothers were encouraged to view relinquishment as the reasonable decision of a responsible parent acting to secure her child’s future. The postwar boom in pregnancies saw a change in the demographic profile of such mothers. Whereas previously it had been primarily married or divorced working-class women who relinquished their usually older children for economic reasons, after the war it became common for younger, white, more broadly middle-class unmarried women to do so in respect of children in infancy. From the late 1950s until the mid-1970s, the social stigma and financial hardship accompanying the role of single parent made adoption a likely option for many unmarried mothers in the U.S. as elsewhere. More recently, as pregnancy rates have fallen7 : the stigma reversed and attached to relinquishment rather than to single parenthood; but poverty or relative poverty has continued to significantly influence the decisions of unmarried mothers. Indeed, Patricia Strowbridge of Adoption Professionals has claimed8 : Take Florida, which has 5,000 to 7,000 adoptions a year. Over 80% of them are private and most of these involve young women. In many cases they simply can’t afford to keep their babies because income is so low and welfare is so poor. So they get in touch with an adoption agency.

However, a sense of perspective is needed: statistically, most ‘private’ adoptions are in fact by step-parents and relatives. It has been estimated that from the early 1970s, to the late 1990s, the voluntary relinquishment for adoption of children born ‘out-of-wedlock’ in the United States decreased from 8.7% to 1%.9 The rates of births to unmarried women, however, has been increasing: from an estimated 18.4%

7 See,

statistics collated at the Centers for Disease Control and Prevention which reveal that fewer women in the United States are having children. Between 2000 and 2009, pregnancy rates for U.S. women fell by 12%, or nearly 6.4 million pregnancies. The pregnancy rate in 2013 was the lowest it had been in 12 years. See, further, at: www.cdc.gov/nchs/data/databriefs/db136.htm 8 See, The Independent Review, 5th January 2005, as cited by Hilpern, K., in her feature article ‘The Daddy of All Game Shows’ at p. 3. 9 See, for example: Jones, J., ‘Adoption Experiences of Women and Men and the Demand for Children to Adopt by Women 18–44 years of age in the United States, 2002 , National Centre for Health Statistics, Vital and Health Statistics, Vol 23, Issue 27, 2008; Chandra, A. et al., ‘Adoption, Adoption Seeking, and Relinquishment for Adoption in the United States’, National Centre for Health Statistics, Advance Data No. 306, May 11, 1999.

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of all live births in 1980 to 40.6% in 2008, dipping slightly to 39.6% in 2018,10 with the U.S. having the highest teen pregnancy rate of the Western industrialized world. Safe Havens This is the U.S. equivalent to the practice in parts of Europe and elsewhere of providing ‘baby hatches’ or designated safe places where a parent, most usually a young unmarried mother, may abandon their child safely and anonymously, with confidence that it will be taken into state care and probably adopted. A federal study in 1993 found that at least 22,000 babies were left in hospitals each year by parents unwilling or unable to care for them.11 The study, commissioned by the Department of Health and Human Services, found that the babies were clustered in six major urban areas, with Cook County (Chicago), Ill., New York City and Washington, D.C., having the highest numbers. Twenty years later, every state had introduced safe haven laws and facilities catering for thousands of infants abandoned annually most of whom, presumably, filter through into the US adoption process.

8.2.1.3

Abortion

The Supreme Court decision in Roe v. Wade12 legalized abortion nationwide but entrenched the associated deep social divisions. Forty years later, in Stenberg v. Cahart,13 Justice Breyer acknowledged the enduring polarizing controversy: Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.

In an inverse correlation, as abortion and improved contraceptives have become more accessible so the opportunities for domestic adoption have reduced. Prospective adopters turned to intercountry sources and the 1970s saw the beginning of an influx of children from Korea. In recent years infant adoptions per 1000 abortions have declined from 19.4 in 1996 to 17.0 in 2002. Even though the abortion rate fell by 20%, from 16.9 in 2011 to 13.5 abortions per 1000 women in 2017,14 and continues to decline, the U.S. still has the highest rate in the industrialized world.15 10 See,

further, at: https://www.statista.com/statistics/276025/us-percentage-of-births-to-unmarr ied-women/. 11 See, further, at: https://www.latimes.com/archives/la-xpm-1993-11-10-mn-55141-story.html. 12 410 U.S. 113 (1973). It has been estimated that third party adoptions declined from a high of 89,200 in 1970 to 49,700 in 1974 and 47,700 in 1975. 13 (99–830) 530 U.S. 914 (2000) 192 F.3d 1142. 14 See, further, at: https://www.guttmacher.org/gpr/2019/09/us-abortion-rate-continues-drop-onceagain-state-abortion-restrictions-are-not-main. 15 See, the report ‘Abortion Incidence and Service Availability in the United States, 2011’, Guttmacher Institute, 2014.

8.2 Background

8.2.1.4

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Assisted Reproduction Services

Assisted reproduction, which accounted for just over 1% of U.S. births in 2005, is making a growing contribution to parenting choices and inevitably also to the moral and political debates that constitute the ‘culture wars’ in this country. The modern availability of improved fertility treatment (AID, GIFT etc.), including donor embryo implantation, is having a growing impact on the extent to which adoption is the preferred choice for infertile heterosexual couples, while surrogacy arrangements— particularly commercial arrangements contracted overseas—are now increasingly used instead of adoption, or in conjunction with it, by those in same sex relationships. Surrogacy When, in New Jersey, the surrogacy case Inre Baby M 16 came to court there was no precedent in the U.S. or elsewhere to which the court could turn for guidance. Since the 1990s, surrogacy has become quite common but the legal context varies considerably from state to state. In some states, most notably California, surrogacy is legal whether undertaken on a commercial or altruistic basis, whatever the sexual orientation of the commissioning parents, parentage may be legally safeguarded without recourse to adoption, and surrogacy contracts are regularly enforced by the courts. In that state, the case of Johnson v. Calvert 17 together with subsequent statutes and case law are based on a view that the “gestational surrogate” is not genetically related to the child. Where there is a pre-embryo transfer and approved contract, the intended parents can be named on the original birth certificate, and there is no need for an adoption; in addition, payments for the “services” of the “gestational carrier” are considered legal.18 In New York legislation introduced in 2020 has legalized commercial gestational surrogacy with effect from February 2021. This just leaves Louisiana and Michigan as the only states still prohibiting commercially based surrogacy arrangements. When available, surrogacy services can be expensive. Circle Surrogacy, for example, charge a commissioning couple between $100—150,000 and pay the birth mother around $30,000 for their respective roles. Surrogacy has now become a multimillion dollar industry in the U.S. and a significant component of the ‘medical tourism’ circuit.19 While in many cases the participation of the birth mother may have a strong altruistic element, it is an inescapable fact that such mothers are invariably from low-income families whether resident in the U.S. or in countries such

16 537 A 2d 1227 NJ (1988). Although genetic links were involved, making this unrepresentative of surrogacy cases generally, it still challenged the judiciary in terms of determining who in law was the parent. 17 851 P.2D 776 (1993). 18 Author acknowledges the advice of David Smolin on this matter (note to author, 27.11.2014). 19 For example, PlanetHospital in California – the world’s largest medical tourism country - expected to send at least 100 couples to India in 2008 for surrogacy, up from 25 in 2007. In contrast to the estimated $50,000 spent in the United States, surrogacy in India typically costs $10,000–$12,000.

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as India.20 The resulting scope for exploitation was highlighted in a recent case in which a same sex couple pre-ordered an unborn baby for $8,000 who was duly handed over immediately after birth.21 The child subsequently suffered serious sexual abuse at the hands of his paedophile parents undergoing what was described by the US Attorney’s Office as “some of the most heinous acts of exploitation that this Office has ever seen”.22 In all states surrogacy arrangements, like any other form of contract, can now be the subject of proceedings.23 Individual states have legislated differently in response to the legal difficulties. Many states, for example, allow for the revocation of consent within a certain timeframe. In America, children born within the jurisdiction by way of surrogacy are entitled to a U.S. passport.

8.2.1.5

Increase of Children in Public Care

Between 1985 and 1995 the population of children removed from home and placed in substitute public care almost doubled from 276,000 to 494,000. As explained by Selwyn and Sturgess24 : Between 1986 and 1995 there was a 72% increase in the number of children in care, associated with a rise in the number of child abuse referrals.25 This trend was most apparent for younger children and the median age of entry to care reduced from 12.6 years in 1982 to 8.0 years in 1999.26 The rise threatened to overwhelm the child welfare system and kinship care was encouraged whenever possible. By 1999, 547,000 American children were in care with most looked after in foster care placements.27 The goal for the majority of these children was reunification with their birth families.

Since then the numbers of children in the public care system have steadily increased. From the 396,000 in care in 2012 there was an 11 per cent increase to 442,995 in 2017 and a slight increase to 443,000 in 2019.28 It is, however, salutary to bear in mind that while parental abuse or neglect was most usually responsible for children entering the system nevertheless most exited by returning to parental care. 20 See, for example, Smerdon, U., ‘Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India’, 39 Cumberland Law Review, 2008. 21 See, United States of America v. Mark Jonathan Newton, United States District Court, 1: 12-CR0121-SEB-DKL, per Barker J (25th June 2013) 8. 22 Department of Justice, ‘Hogsett Announces Charges Against Four Men in International Child Exploitation Conspiracy’ (Press Release, 28th June 2013) at: https://www.usdoj.gov/usao/ins. 23 Author acknowledges advice from Diane Kunz on this matter (note to author: 30.08.2020). 24 See, Selwyn, J. and Sturgess, W., ‘Achieving Permanency Through Adoption: Following in US Footsteps’, Adoption & Fostering, BAAF, London, vol. 26, no. 3, 2002 at p. 40. 25 Ibid., citing National Adoption Information, 2001. 26 Ibid., citing Children’s Bureau, 2001. 27 Ibid., citing Adoption and Foster Care Analysis and Reporting System, 1998–1999. 28 See, The AFCARS Report, Preliminary FY1 2017 Estimates as of August 10, 2018-No. 25. further, at: https://www.speakupnow.org/foster-care-statistics-resources/.

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In 2015, of the 243,060 children who exited the care system, 123,894 (51%) went back to their parents or primary caregiver and 15,621 (6%) went to other relatives.29 This pattern was much the same as in 2017 when 121,203 (49%) returned to parents or primary caregiver and 16,272 (7%) went to other relatives. Federal law requires a case plan to be drawn up for every child entering the public care system. This plan must justify the placement—foster care, residential facility or adoption—in terms of its compatibility with the best interests and particular needs of the child concerned.30 Foster Care During 2012–17 the practice of placing children in foster care homes fluctuated: declining from 2009 through to 2012; increasing from 251,000 in 2012 to 273,000 in 2016 and then dipping to 270,000 in 2017.31 Despite policy initiatives at that time to drive forward adoption and kinship care, the statistics clearly show that a large proportion of children admitted to the public care system remain there. These pressures, as explained below (at 8.3.1.2), have since prompted a significant change in policy. The current focus is “to enable States to use Federal funds available under parts B and E of title IV of the Social Security Act 1980 to provide enhanced support to children and families and prevent foster care placements through the provision of mental health and substance abuse prevention and treatment services, in-home parent skill-based programs, and kinship navigator services”.32 Residential Care Residential facilities—termed ‘congregate care’—are operated by public or private agencies and provide an array of specialist services which include therapeutic services for children and families and educational and medical services for children or youth. Placements in residential care facilities are reserved for those whose needs are such that family based foster care is inappropriate and community-based services have proven ineffective. The legislative intent underpinning the Family First Preventative Services Act 2018 is directed in part towards reducing reliance on institutional care or on large foster homes and instead encouraging the use of family based care. There is a dearth of statistical information on annual admissions and on trends relating to use of such facilities.

29 Ibid. 30 Section

475(5)(A) of the Social Security Act, CFR 1356.21(g)(3). further, at: https://www.acf.hhs.gov/sites/default/files/cb/trends_fostercare_adoption_09th ru18.pdf. 32 Family First Prevention Services Act 2018, TITLE VII— Subtitle A—Investing in Prevention and Supporting Families, s 50,702. 31 See,

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8.2.2 Resulting Trends in Types of Adoption In the recent past the needs of infertile married couples, for children they could call their own, were addressed by agency practice in the U.S., the U.K. and elsewhere that carefully sought to fit the child to be adopted with the characteristics of the prospective adopters. Children were matched to adopters in accordance with criteria such as race, class, physical and genetic attributes with the clear intention of providing a couple with the baby that would most readily approximate the child that could have been born to them. This practice, resting on in-built denial, was reinforced by the issue of an altered birth certificate and the lack, thereafter, of access to identifying information by any of the parties involved. In the 1950s and into the 1970s, as Katz points out33 : Agencies tended to prefer married couples of childbearing ages, who were well educated, financially secure and who could provide a child with all the necessities of life in order for her to mature into a productive adult. In addition, agencies tried to match the child with the adoptive parents so that the new family would look like it had been created through biology not the law.

By the 1990s this had all changed. In the wake of the new American led emphasis on the psychology of the individual and the importance of psycho-social relations, instead of the previous focus on socio-economic models of the family unit, adoption practice had reversed its approach towards matching adopters and child.34 The starting point was to be the child. The suitability of prospective adopters came to be measured by the fit between their attributes and the needs profile of the child regardless of any physical resemblance between them. In addition, although the emphasis on facilitating religious congruity had faded, it was to some extent replaced from the early 1970s onwards by a similar approach towards racial matching. As the twenty-first century got underway, bringing with it further social changes, distinct trends could be detected in the statistics relating to annual adoption orders. In 2002 there were a total of 130,269 domestic adoptions of children by relatives and non-relatives, up from 108,463 in 1996. Adoptions from other countries increased significantly from 11,303 to 21,063 during this period. The number of public agency adoptions increased dramatically from 24,366 in 1996 to 42,942 in 2002, reflecting increases in the number of children being adopted out of foster care. There were 16.3 infant adoptions per 1000 non-marital live births in 2002, down from 18.7 in 1996. When the Census Bureau enquired about adoption, in 2010, they found a total of 2,072,312 adopted persons in U.S. households: three quarters of the adoptees in these families—1,527,020 —were under the age of 18; more than 500,000 were older than 18; there were nearly twice as many stepchildren (4.2 million) as adopted children (2.1 million). Adopted children may only constitute some 2% of the child population but, as pointed out in the National Survey of Children’s Health, they are numerically 33 See,

Katz, S., ibid. at p. 294.

34 In 1980, the National Council For Adoption (NCFA) was formed to promote adoption as a positive

option, provide and disseminate information on adoption, review and perform adoption research and promote excellence in adoption standards.

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significant—totaling 1.8 million.35 By 2013, the Department of Health & Human Services pictured contemporary adoption in the US as comprising: private domestic adoption (38%), foster care adoption (37%) and intercountry adoption (25%); 41% of adoptions being by relatives; 49% of all adoptees were aged 5–12 and 37% were white; while 40% of all adoptions were transracial.36

8.2.2.1

Third Party Adoptions

Of the 61,000 adoptions approved in 201837 few conformed to what Hollinger has termed, “the traditional model of a newborn or young child being adopted by an unrelated and infertile married couple who are “legal strangers” to the child”.38 Several ‘types’ of adoption can now be recognized, some of which overlap. Domestic The traditional model, now usually referred to as ‘domestic adoption’, has always been dependent upon the availability of orphaned children or those whose parents have voluntarily relinquished them, perhaps for reasons of extreme poverty, for adoption. Although this model is in decline, poverty combined with the realities of market forces are probably factors in maintaining it at a relatively high level in this jurisdiction. It has been estimated, for example, that as of 2007 some 677,000 (38% of all adopted children) were adopted privately from sources other than foster care. Another contributing factor, that impacts upon foster care placements, may be the strong onus in the Intercountry Adoption Act 2000 on making “reasonable efforts to actively recruit and make a diligent search for prospective adoptive parents to adopt the child in the United States”,39 a provision clearly designed to push prospective adopters and agencies towards the domestic foster care population. Child Care In the U.S. to a much greater extent than in other western societies, the development of adoption legislation must also be viewed in the context of evolving public care provision. This jurisdiction has a high proportion of children in care, (approximately 74 per 10,000 compared with 47 per 10,000 in England).40 Consequently, there has for some time been a policy to facilitate the adoption of children admitted to the public 35 See, Vandivere, S., Malm, K. and Radel, I., ‘Adoption USA: A Chartbook’ based on the 2007 nationwide survey of adoptive parents conducted by the National Survey of Children’s Health, US Dept of Health and Human Services (Office of the Asst Secretary for Planning and Evaluation), Washington, DC, 2009. 36 See, further, at: https://www.statisticbrain.com/adoption-statistics/. 37 See, further, Stolley, K.S., ‘Statistics on Adoption in the United States’, in The Future of Children: Adoption, Spring 1993 at pp. 26–27. 38 See, Hollinger, J.H., Adoption Law and Practice (vol. 1), Matthew Bender/Lexis-Nexis, New York, 2005 update. 39 The Intercountry Adoption Act 2000, s 303 (42 U.S.C. § 14,932). 40 See, further, data published by the Performance and Innovation Unit (U.K.), 2000.

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welfare system, a policy in some part driven by the inexorable logic that adoption costs less than foster care: the Brookings Institute has estimated that “annual state and federal expenditures for foster care total more than $9 billion under Title IV-E of the Social Security Act alone”.41 One of the earliest examples of this occurred in New York in 1959 when legislation was introduced to free the ‘permanently neglected’ child for adoption. The term ‘permanently neglected’ was defined as a child in care whose parents “failed substantially and continuously or repeatedly for a period of more than one year to maintain contact with, and plan for the future of the child, although physically and financially able to do so…”.42 The net effect of the New York reform was that termination of parental rights without the birth parents’ consent was made possible in circumstances where the birth parents had surrendered their rights to the child by a failure to discharge the obligations of parenthood.43 This approach was replicated across the country. Where parents have shown no consistent interest in their child and there is no reasonable or foreseeable likelihood that they can, or will, resume care responsibility for their child then legislative provisions enable parental rights to be terminated. There is now a considerable body of case law testifying to the principle that a parent’s interests in a child must be balanced against the State’s long-recognized interests as parens patriae—or guardian of last resort44 —which carries with it the obligation to provide alternative permanent arrangements when parental care fails. Adoption became that preferred alternative arrangement. However, the removal of parental rights has not necessarily led to the adoption of the children concerned as many now remain in the public care system as ‘legal orphans’ with no ties to any family. In the period 2000–2005, while the number of children whose parental rights had been terminated ranged from 73,000 to 65,000, those adopted annually remained relatively constant in the low 50,000 s. During 2010–2018, the corresponding figures were 66,000, 71,000 and the mid-50,000 s.45 It seems somewhat anomalous that a by-product of adoption for children in public care should be the state creation of tens of thousands of ‘legal orphans’. Nonetheless, the number of children exiting the public care system by way of adoption, following removal of parental rights, has been steadily increasing. AFCARS reveals that they “increased dramatically from 37,000 in 1998 to 51,000 in 2000, 41 See, Zill, N., ‘Adoption from Foster Care: Aiding Children While Saving Public Money’, the Brookings Institute, May 2011, at: https://www.brookings.edu/research/reports/2011/05/adoptionfoster-care-zill. 42 See, Polier, ‘Amendments to New York’s Adoption Law: The Permanently Neglected Child’, in 38 Child Welfare 2, 1959. 43 See, Pennypacker, ‘Reaching Decisions to Initiate Court Action to Free Children in Care for Adoption’, in 40 Child Welfare, 1961; also Polier, Parental Rights, Child Welfare League of America, New York, 1958. 44 See, for example, Reno v. Flores, 507 U.S. 292, 303—304 (1993); Santosky v. Kramer, 455 U.S., at 766; Parham, 442 U.S., at 605; and Prince v. Massachusetts, 321 U.S. 158, 166 (1944). 45 See, further at: https://www.acf.hhs.gov/sites/default/files/cb/trends_fostercare_adoption_09th ru18.pdf.

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declined to 50,000 in 2001” then rose to 57,200 in 2009 and increased further to peak at 63,100 in 2018.46 By then, perhaps having become a victim of its own success, that approach was being questioned and resulted in the change of policy implemented by the Trump administration’s Family First Prevention Services Act 2018. This would seem to fundamentally challenge a child welfare approach with an emphasis on adoption as an exit strategy from the public care system and instead substitutes an emphasis on funding the family support services necessary to prevent entry into that system. As Diane Kunz comments “there is now a waning interest in severing parental rights”.47 Children with Special Needs The National Adoption Center estimates that some 130,000 children with special needs are available for adoption in the US but there would seem to be no statistical data available to indicate how many are adopted annually nor what the related trends might be. It can perhaps be safely assumed, however, that the number of such children is growing as a proportion of annual adoptions. The federal Title IV-E adoption assistance program offers monthly maintenance payments, medical assistance and other care services for eligible children with special needs. Foster Parent Adoption Most often adoption is by the child’s foster parents with ongoing state financial support.48 This practice, whereby State responsibilities for neglected and abused children are in effect privatized, often accompanied by ongoing financial payments, is interesting. In 2015, of the 52,931 children exiting foster care by way of adoption, 26,983 (52%) went to their foster parents; in 2018, of the 63,100 exiting some 51% were adopted by their foster parents.49 The Donaldson Adoption Institute report that “the vast majority of adoptions from foster care remain intact over time, notwithstanding concerns by many professionals that the failure rate of such adoptions would rise as a result of huge increases in their numbers during the last decade”.50 On the other hand, some have argued that while the incentivized adoption of children from the public care system has resulted in many more children being raised in permanent and loving family care, it has also been responsible for the considerable increase in failed or ‘disrupted’ adoptions.

46 See,

AFCARS, annual reports, at: https://www.acf.hhs.gov/cb/resource/trends-in-foster-careand-adoption. 47 Note to author (17.08.2020). 48 See, the Children’s Bureau report (1999) which noted that one half of all children adopted from foster care were adopted by their foster parents and that 86% of those received adoption subsidies. Note that some states have legislation that expressly prohibits lesbians or gays from adopting children in foster care. 49 See, further, at: https://s3.amazonaws.com/ccai-website/afcarsreport25.pdf. 50 See, the Evan B Donaldson Adoption Institute, What’s Working for Children: A Policy Study of Adoption Stability and Termination, 2004, at: https://www.njarch.org/images/Disruption_Full% 20Report_Evan_B_Donaldson.pdf.

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Intercountry A characteristic feature of adoption in this jurisdiction is the extent to which it has accommodated children born elsewhere: from at least the era of the Korean war, intercountry adoption has played a prominent role; subsequently growing to constitute a significant proportion of annual adoptions. By the 1990s, the rapid fall in the number of babies voluntarily relinquished for adoption in the U.S. had led to a steady increase in adopters prepared to look overseas for a healthy baby. The collapse of the Soviet Union in 1991 triggered the start of a flow of some 60,000 children from Russia to the US, ending abruptly in 2012 when unilaterally terminated by Russia. The children involved in ICA—particularly from Korea, China and Russia—were invariably defined as “orphans” (see, further, Sect. 5.7.4.6). In 2004, the peak year for intercountry adoptions, the number of ICAs reached 22,884 before entering into its current period of decline which saw the number drop to 4059 in 2018 (down 655 from the previous year).51 The State Department’s data for the period 1999 to 2017 show a total of 271,833 intercountry adoptions were completed in the United States: 5370 in 2016 representing a 77% falloff from 2004. The top sending countries were China (80,162), Russia (46,113), and Guatemala (29,806). Uganda sent more than 1,500 children to the United States over the same period. Hollinger suggests that “the tripling since the 1980s of adoptions by U.S. citizens of foreign born children is at least partially attributable to the desire of many prospective parents, including those who are respectful of their children’s general ethno-racial and cultural heritage, to avoid any direct contact with specific birth families”.52 It is possible that this factor is also in play in a reverse dynamic which for the past fifty years has seen the U.S. become a ‘sending’ country with 26 agencies in the U.S. now accredited by the State Department to process outgoing adoptions. In 2018, 81 U.S. children—38 from Florida—were adopted into other countries.53 Following US ratification in 2008, there was every reason to agree with Hollinger that, “with the implementation of the 1993 Hague Convention on Intercountry Adoption now underway in the United States and in nearly seventy other countries, adoptions of foreign-born children by U.S. citizens may soon exceed 25,000 per year, and the very small number of adoptions of U.S. born children by residents of other countries will rise rapidly”.54 The fact that the reverse has been the case may be attributed partially to: a scaling back in the flow from such established sources as South Korea as their domestic adoption and child care capacity develops; to the US reducing its reliance upon such other sources as Cambodia and Vietnam because of concerns relating to visas and corruption; to the changes in politics and policy of sending nations such as Russia and China; to particular difficulties with prevailing standards in Guatemala resulting in the closure of what in 2008 had been the single most important supply route for 51 See,

FY2018 Intercountry Adoption Statistics at: https://travel.state.gov/content/dam/NEWado ptionassets/pdfs/Tab%201%20Annual%20Report%20on%20Intercountry%20Adoptions.pdf. 52 See, Hollinger, J.H., Adoption Law and Practice, op. cit. 53 See, FY2018 Intercountry Adoption Statistics, op cit. 54 Hollinger, J.H., Adoption Law and Practice, op. cit. (2005 update).

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US adopters; and to the economic recession which reduced the pool of those who could afford the considerable expense of ICA.55 The effect of a reduced flow from particular countries can be seen in the fall from 7,038 to 2,697 adoptions from China during 2004–12, and from 5862 to 748 from Russia over the same period. It is no coincidence that this reversal of established trends coincided with the U.S. ratification of the Hague Convention in April 2008). Before ratification the U.S. regulated intercountry adoption solely through its immigration laws. In particular, the allocation of an entry visa was dependent upon a child meeting the statutory definition of ‘orphan’.56 This requirement acted, to some extent, as a constraint.57 However, along with U.S. implementation of the Hague Convention, the immigration law also changed for Convention adoptions: the orphan definition now no longer applies (though it does in respect of adoptions from non-Convention countries) which made it somewhat easier for child to qualify under the Convention for admission to the U.S. It then became possible for both living parents to relinquish their child instead of appearing to have abandoned him or her.58 But it was the effect of Hague ratification on adoption from non-Convention countries that produced the most dramatic result. In relation to Guatemala, for example, whereas 4726 children went to U.S. adopters in 2007, the numbers fell drastically to 754 in 2009 and to 50 in 2010. By 2013, 52% of the 7094 intake of children were from non-Convention countries and 3406 or 48% were from Convention countries—a sharp contrast to 2005 when 58.2% of the 22,739 were from Hague Convention countries. That the reduction cannot be wholly attributed to a ‘Hague effect’ is evident from the example of China—a signatory state—which in 2017 sent 1905 children representing a significant fall from the 7038 that came in 2004. In the case of China, and perhaps to a lesser degree in other traditional sending countries, the market dynamics have changed: they have set higher criteria for adopter eligibility and the children they make available are increasingly likely to be older and to have complex health and social needs. Adopter eligibility became an even greater issue for Russia where, in reaction to the illtreatment and deaths of some Russian adoptees in the US,59 all prospective US adopters were declared ineligible to adopt Russian children: there have been no ICA adoptions from Russia to the US since 2 children were adopted in 2014 (see, further, Sect. 20.2.2.1). The circumstances that forced the U.S., after acceding to the Hague Convention, to end its former process of approving Guatemalan adoptions illustrate the ironic reality 55 The Donaldson Adoption Institute in New York says costs have risen; the cost of an international adoption sometimes exceeds $50,000. See, further, at: https://adoptioninstitute.org. 56 See, Immigration and Nationality Act 2009. 57 Completion of Form I-604 Report on Overseas Orphan Investigation being required in all such cases. 58 The author acknowledges the advice of Joan Hollinger on this matter. See, further, Hollinger, J.H., Adoption Law and Practice, Chapter 11, for provisions dealing with the new Hague Convention Adoptee requirements….1019b][G] Matthew Bender, Lexis-Nexis, New York (2008 update). 59 Arguably, the abrupt Russian termination of ICAs to the US was a response to the Magnitsky Act and as such constituted singularly stark illustration of the politics of adoption.

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that meeting the standards imposed to safeguard children can result in denying many the opportunity of a safer life. As Estin points out60 : As the experience in Guatemala demonstrates, building an ethical and reliable child welfare system is a much greater challenge than the relatively simple act of ratifying a treaty. In order to realize the vision of the CRC and the Adoption Convention, however, it is essential to build protections against profiteering and corruption, and minimize the risk that the large sums of money involved will pull children away from their families and into the adoption system.

The 2018 reports of fraudulent practices in Uganda—amounting to child trafficking—whereby children are removed from their birth families on the pretext of providing them with residential schooling but then placed by adoption agencies with couples in the US, would seem to show that Estin’s concerns should not be limited to the experience in Guatemala.61 The continuing fall in intercountry adoptions masks what Hollinger sees as an interesting trend: the decline is largely limited to young babies.62 The number of international adoptees aged between 5 and 12 has fallen only slightly since 2004, while the number of children under age 1 fell by 90%. In 2004, children aged 12 months or less accounted for more than 40% of intercountry adoptions (now only 10%) while those aged 5–12 now constitute 24% (formerly 12%). In 2012, of the 8,668 total adoptions from all countries: just 10% were aged 12 months or less; 58% were aged 1–4; and almost a quarter were aged 5–12. It is also important to recognize that while one strand of this trend is that such children are now older, this is accompanied by other strands such as: they are also more likely to have been institutionalized (with resulting attachment disorders); possibly have ‘special needs’; and probably have significant health or social care problems.63 It is probable that the sharp fall in annual adoptions is a consequence of fewer babies or young children now being available: international commercial surrogacy may have displaced adoption as the preferred option for those seeking a baby. Bluntly put, where choice rather than altruism is in play, some prospective adopters may simply decide that surrogacy offers better value. The fact that older children with significant care needs now make up a much larger share of international adoptees reflects the realities of the market forces at work and highlights the nature and effect of a significant political dimension to intercountry adoption (see, further, Sect. 23.2.3.1). 60 See, Estin, A., ‘Families Across Borders: the Hague Children’s Conventions and the Case for International Family Law in the United States’ at p. 88. See, further, at: https://www.law.uiowa.edu/ documents/Estin_BOOK.pdf. 61 See, further, at: https://www.thenation.com/article/archive/those-kids-are-no-longer-yours-uga ndas-adoption-market/. 62 Note that Hayes compared domestic placements by public agencies and by ICA in the US in 2006, and discovered that intercountry adoptees were much younger than domestic adoptees: 42% under 1 year; 84% of ICAs under 4 years as opposed to 46% from public (citing statistics from US Dept of Homeland Security 2007 and US Dept of Health and Human Services 2008). 63 See, the Donaldson Adoption Institute, A Changing World: Shaping Best Practices through Understanding of the New Realities of Intercountry Adoption, New York, 2013.

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8.2.2.2

359

First Party Adoptions

As the statistical data clearly demonstrates, by far the largest proportion of all children adopted annually in the U.S. are simply the subjects of a formal process intended to legally consolidate their position within newly configured family arrangements.64 This practice is now promoted by public child care agencies as it provides for minimal disruption to a child’s sense of belonging within the family, class, culture and locality of their birth. Family adoptions tend to involve older children. Step-parents The legal adoption of a child by the spouse of the child’s birth parent has been the most common form of adoption in the United States and the one attracting minimum professional scrutiny. Hollinger has noted that “perhaps half or more of all adoptions are by step-parents; many others are by grandparents or other relatives, who like step-parents, have long been the de-facto parents of the children they adopt.”65 In recent years this would seem to have changed: in 2015, 34% of the children adopted went to relatives, including step-parents; and in 2018 it was much the same when the proportion was 35%. The fact that for such a large proportion of annual adoptions in the U.S. there is judged to be no ‘welfare factor’ (and therefore in some if not in most states there is no need for a home study report66 ), the child concerned being seen as having no actual need which this procedure is required to remedy, does, perhaps, add to the questions regarding the mix of public and private interests now served by adoption in this jurisdiction. In some states67 where, following the death of a spouse, the other parent remarries and both adopt the child of the first marriage then the legal relationship between that step-child and the family of their deceased birth parent (e.g. grand- parents) continues. This is not the case in many other states, nor in countries such as the U.K. Kinship The policy of kinship placements as an alternative to foster care; reinforced by the use of guardianship orders, has been positively developed for some years by public child care agencies as it provides for minimal disruption to a child’s sense of belonging within the family, class, culture and locality of their birth. Significantly, by 2012, 31% of adoptions from the care system were in favour of relatives.

64 See,

for example, Kreider, R.M., ‘Adopted Children and Stepchildren: 2000’ (U.S. Census Bureau, Census 2000 Special Reports, August 2003). The full Report is available at: www. census.gov/prod/2003pubs/censr-6.pdf. 65 Hollinger, J.H., Adoption Law and Practice, op. cit. 66 Ibid. 67 For example Arkansas, Alaska, Montana, New Mexico, New York, North Dakota, Ohio and Wisconsin; as cited by Bridge, C. and Swindells, H., op. cit., 2003 at p. 300.

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8.3 Overview of Principles, Policy and Law Adoption as a formal statutory procedure was introduced in the U.S. by the Massachusetts Adoption of Children’s Act 1851 which preceded the introduction of similar legislation in England & Wales by 70 years and set out for the first time some of the more basic functions of the law relating to adoption. By 1929 all states had followed the example of Massachusetts and enacted some form of adoption legislation. Some states, like Michigan in 1891, went a step further and introduced laws requiring inquiries to be made as to the suitability of prospective adopters and their home circumstances. Thereafter, adoption became exclusively a judicially determined process the successful conclusion of which resulted in the issue of an adoption order. As there is no national legal framework governing the adoption process, matters of law and policy continue to be determined separately by each of the 50 states and the District of Columbia, though some umbrella pieces of legislation and judicial decisions bring a degree of commonality to law and practice across all states. Family matters, including child welfare laws, have historically been reserved to the states. The Constitution, however, as interpreted by the Supreme Court, requires a state to show compelling reason for infringing rights of family privacy and for over- riding parental autonomy as these fundamental liberties are protected by the 14th Amendment and its guarantee of due process.68 As has often been judicially emphasized, the right of a parent to maintain a relationship with his or her child is among the interests included in the constellation of liberties protected through the Fourteenth Amendment.69 Further, Congress exercises considerable influence over state child care and other family related programmes through exercise of the Spending Power. In practice, therefore, the autonomy of individual states in matters relating to the welfare of children is balanced by constitutional, judicial and budgetary constraints. In the U.S., all law—whether state or federal, statute or administrative—can be and often is tested against the overarching principles of the Constitution which provides federal recognition of and protection for human rights: the Bill of Rights together with the 13th, 14th, and 15th Amendments, may be considered to provide a body of provisions that have a particular relevance for family matters including adoption. The American Declaration of the Rights of Man, particularly Article 6 concerning the right to a family and to the protection necessary to enjoy that right, and Article 7 which recognises a child’s right to protection, is clearly relevant. The significance of the Constitution is mostly evident in the capacity of certain principles, underpinned by rulings of the Supreme Court, to shape a degree of uniformity in law and practice across the country. A first principle is, perhaps, the right to privacy. In general terms, this confers on individuals and other entities the right to be protected from government intrusion. 68 See, for example, Meyer v. Nebraska 262 US 390 (1923), Stanley v. Illinois 405 US 645 (1972) and Wisconsin v. Yoder 406 US 205 (1972). 69 See, for example, Troxel v. Granville (99–138) 530 U.S. 57 (2000) 137 Wash. 2d 1, 969 P.2d, affirmed.

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There is a legal presumption that the conduct of persons or businesses is a matter for self-regulation unless or until the law is infringed—though as Justice Stevens has pointed out “the constitutional protection against arbitrary state interference with parental rights should not be extended to prevent the States from protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child”.70 The effect of this principle can be seen, for example, in relation to the laws governing access to personal information in the form of adoption records, in the private parental placement rights and in the independence of commercial adoption agencies. Secondly there is the right to due process, both ‘procedural’ and ‘substantive’, as enshrined in the 5th and 14th Amendments. Basically, procedural due process requires that the legal system, its processes and protections, are available to all and perform their functions with the utmost propriety. Substantive due process, in this context, has been interpreted to establish a protected interest for parents to raise their children and for those children to be safe. The effect of this due process principle can be seen, for example, in: the requirement that all persons (such as unmarried fathers) are served with notice of proceedings affecting them; that representation be provided to those (such as children) whose interests are being determined; and; that full and informed consents (unless statutorily dispensed with) are available. Finally, although the 14th Amendment with its due process guarantee is usually associated with the protection of fundamental rights (such as the right to free speech or the right to practice one’s religion) it also declares the principle that all persons are entitled to equal protection before the law. Its effect can be seen in relation to the rules governing transracial placements, the availability of adoption to special needs children and the non-discriminatory requirements in agency assessments of adopter suitability. In the U.S. the Constitution reserves to individual states all powers not specifically delegated to the federal government.

8.3.1 Adoption Principles and Policy In the U.S., as in the U.K. and as emphasised in a number of ECtHR rulings, there is no legal right to adopt.71 There is, however, a common concern regarding standards of adoption practice which, in 1980 in the U.S., was furthered when the National Council for Adoption was established to promote high standards in adoption procedures and provide information on adoption. The development of modern policy in the U.S. has been marked by a sea change with regard to children in the public care system due to parental fault or default. The Adoption and Safe Families Act 1997 consolidated a policy shift away from public service resource investment in family reunification and

70 Ibid, 71 See,

per Stevens J. for example, Lindley for Lindley v. Sullivan, 889 F.2d 124 (7th Cir. 1989).

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towards the promotion of adoption as a private resource for the care of children by non-relatives together with support for kinship care. As expressed by Woodhouse72 : In essence, ASFA shifts money and services from biological families and foster families to adoptive families.

More recently, however, there has been a significant federal initiative to correct the extent of that sea change by diverting some of the money flow back towards biological families. Until the introduction in 2019 of the Family First Prevention Services Act 2018, federal funds provided by way of Title IV-E of the Social Security Act could be used only: to help with the costs of foster care maintenance for eligible children; with administrative expenses to manage the program; and for training for staff, foster parents, and certain private agency staff; adoption assistance; and kinship guardianship assistance. Now Title IV-E funds can be directed by states—that have federally approved family assistance plans—towards the provision of preventative services that enable “candidates for foster care” to stay with their parents or relatives.73 The widespread take-up, across the states, of federal funding for family assistance plans indicates the extent of a resurgence in conservative values centred around protection for biological families. The decline in intercountry adoptions that began in 2004 has triggered initiatives at federal and state level to divert the many prospective adopters with diminishing prospects of being matched with an overseas child to consider instead the needs of the many children, often older and with complex health or social issues, that currently languish in the child welfare system.

8.3.1.1

Principles

In 2020 the governing principles would seem to be coalescing more around traditional family values, and the role they grant to the inherent rights of parents, rather than be open to determination as indicated by the welfare interests of the child. The Interests of the Child The principle that the welfare interests of the child must be the governing consideration in adoption proceedings has been established since 1856 when the Massachusetts court in Curtis v. Curtis74 ruled that “adoption is not a question of mere property… the interests of the minor is the principal thing to be considered”. More than a century and a half later one measure of the inadequacy of the state’s grasp of that “principal thing” lies in the bare fact that every year most of the children taken into state care, due to parental abuse or neglect, are simply returned to their parents; the proportion 72 See, Woodhouse, B. , ‘The Adoption and Safe Families Act: A Major Shift in Child Welfare Law and Policy’, op. cit. at p. 383. 73 See, further, at: https://www.ncsl.org/research/human-services/family-first-prevention-servicesact-ffpsa.aspx#:~:text=The%20Family%20First%20Prevention%20Services%20Act%20also% 20seeks%20to%20curtail,for%20more%20than%20two%20weeks. 74 71 Mass (5 Gy) 535, 537 (1856).

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adopted into families, approved as being able and willing to further a child’s welfare, has never in any year exceeded one quarter of the children failed by their family of origin. Another measure, perhaps, is that - unlike 200 other countries - the US has failed to ratify the U.N. Convention on the Rights of the Child (UN CRC) with its unequivocal Article 3 declaration that the best interests of the child must be the primary consideration in all decisions affecting his or her welfare; though, arguably, ratification would not have affected matters in that regard as the principle was already embedded in US law. Preference for Family Based Care The presumption, in law and in child psychology, that family based care is the preferred means of safeguarding and promoting the welfare of a child, has been firmly established for some decades. Only in very recent years, however, has that presumption prioritized birth family care over all other alternatives as being best and as warranting legislative endorsement. The Family First legislation, clearly proclaiming its purpose as preventing children from entering foster family care, is a landmark statute in that it gives legal recognition to both the importance of parental care and to an accompanying parental entitlement for the state support necessary to maintain it. Openness A long-standing, continuing, and very divisive feature of US adoption law has been the existence of “closed” files, sealed by birth parent veto which prevent adoptees from accessing information regarding their origins. While the impasse created by the historical granting of rights to anonymity for birth mothers continues, there are indications that greater transparency will be available in the future. As of 2020, probably most states now have laws permitting legally enforceable open adoption contract agreements to be included in the final adoption ruling. Birth Parent Placement Rights Unlike other developed countries, private arrangements continue to account for most US adoptions. The birth parents determine not only—and most obviously—all stepadoptions, but also very many direct adoption placements and usually they also take responsibility for selecting adopters from the portfolio of agency approved persons. For Profit Adoption Agencies Singularly, among the developed western nations, the US facilitates a profit motive in adoption law and practice. The ‘open market’ with its ‘survival of the fittest’ ethos provides the context for adoption agencies as it does for all organisations competing for the same business in the US. As with many other home grown entrepreneurial enterprises, there are adoption agencies that pursue profit-making opportunities domestically and/or internationally. Same Sex Adopters Now more standard practice than principle, since the legalization of same sex marriage in 2015, same sex adopters have contributed significantly to reducing the

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numbers of children who would otherwise be confined to the public care system. A 2018 study by the University of California’s Williams Institute found that 21% of U.S. same-sex couples had adopted children and 3% had fostered—a rate seven times that of heterosexual couples. However, by 2020, there was evidence of a spreading willingness among state legislatures to provide health care professionals and faith based adoption agencies with statutory exemptions from the requirements of equality and non-discrimination law enabling them to refuse to engage with the LGBT community including same sex foster carers and adopters.

8.3.1.2

Policy

The Trump administration has initiated and implemented some significant policy changes that clearly impact upon the law and practice relating to adoption as in other areas. For the past decade and more, a particularly noticeable strand in U.S. adoption policy has been the channeling of assistance payments towards those who wish to adopt children from foster care or for families whose children have behavioral, emotional or physical disabilities. Subsidies can cover medical assistance, tutoring, therapy, special equipment and other tools that enable at risk children to reach their full potential. The Adoption Tax Credit provides a major financial subsidy for adoption and is available to qualifying adopting families for both domestic and international adoption. However, the introduction of the 2018 Family First Act signaled a significant change in policy—away from managing the exit of children from the public care system, towards preventing their entry to it—by a new investment of federal funds to assist states in the provision of family support services. In an initiative directed towards strengthening legal protection for parental rights, the Family First Prevention Services Act 2018 has sought to counter the policy direction indicated by the Every Child Deserves a Family Act 2013. With effect from October 2019, federal funds have been made available—through Title IV-E reimbursement—for preventative services that help children, their parents and/or kinship caregivers avoid the need to have children removed from their homes. A further policy change, also directed towards defending traditional family values, has been apparent in the concerted effort across a broad front to constrain or roll back the legislative gains made in recent years by the LGBT movement. This is illustrated in a succession of HSS rulings granting exemption to faith based foster care and adoption agencies from the requirements of equality and non-discrimination legislation.75 There have been reports that the Trump administration intends to authorise foster care and adoption agencies nationwide to discriminate in child welfare services and “reject

75 For example, on January 23, 2019 HHS ruled that in South Carolina the Miracle Hill Ministries and

other taxpayer-funded faith-based foster care agencies could maintain their rejection of all foster parents other than those who subscribed to Miracle Hill’s particular interpretation of Protestant Christianity.

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LGBTQ parents, non-Christians, and others”.76 It remains to be seen whether this opens up a new front in the state neutrality battleground for protagonists contesting rival interpretations of the First Amendment’s freedom of religion.

8.3.1.3

Adoption Alternatives: Permanent Legal Guardianship

This order was introduced because77 : … the emphasis on legally secure permanent placement is meant to provide the child with psychological stability and a sense of belonging and limit the likelihood of future disruption of the parent-child relationship... traditional adoption does not meet the needs of children in public foster care. Legal options for permanent and legally secure placement should be broad enough to serve the needs of all children in care who are not able to return to their homes of origin…

A permanent legal guardian has custody and control of a child which includes powers to make decisions concerning that child’s care, education, discipline and protection. Both birth parents may retain some ongoing rights of contact and access and responsibility for maintenance. This order is intended for use by those relatives who may not wish to see a complete severance of ties between child and family and is particularly appropriate in relation to older children who object to established relationships with parents and siblings being displaced. In 1998, of the 248,000 children exiting the public care system, 5836 did so by way of permanent legal guardianship. In 2012, of the 241, 254 exiting only 7% did so to live with a guardian; though this was nearly twice as many as in 2003.78 By 2018, the proportion had risen to 11%.79

8.3.2 Contemporary Adoption Related Legislation While each state has its own adoption statutes and other related legislative provisions, for the country as a whole it is largely the Family First Prevention Services Act 2018, the Adoption and Safe Families Act 1997 in conjunction with the amended Adoption Assistance and Child Welfare Act 1980,80 and certain other important 76 See, further, at: https://www.washingtonpost.com/gdpr-consent/?next_url=https%3a%2f% 2fwww.washingtonpost.com%2fhealth%2f2019%2f02%2f08%2ftrump-administration-seeks-aut hority-fund-religious-foster-care-groups-that-reject-lgbtq-parents%2f%3futm_term%3d.2dec43 084d29&utm_term=.2dec43084d29. 77 See, Department of Health and Human Services, Adoption 2002: The President’s Initiative on Adoption and Foster Care; Guidelines for Public Policy and State Legislation Governing Permanence for Children, 1999. 78 See, further, at: https://www.childwelfare.gov/pubs/factsheets/foster.pdf#page=3&view=Chi ldren%20Entering,%20In,%20and%20Exiting%20Care. 79 See, further, at: https://www.childwelfare.gov/pubPDFs/foster.pdf. 80 Provided federal funding for state foster care and adoption programmes.

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statutes, which together form the contemporary legislative framework for adoption.81 This framework is supplemented by the provisions of international Conventions and by the Intercountry Adoption Act 2000.

8.3.2.1

Federal and Uniform Legislation

As Estin points out “federal law generally comes into play with respect to adoption from foster care, ICA, and in relation to Indian children”.82 Increasingly, in recent years, model statutes are drawn up to provide a template of that which the federal government, at any point in time, considers to be a body of core provisions for U.S. wide legislation. States are free to enact such legislation in whole or in part, or to ignore it. In addition, ‘uniform’ statutes (providing recommendations for removing obstructive inconsistencies between states in areas of similar legislative provision) are prepared within states which may then attract federal government endorsement, funds and pressure to adopt such legislation.

8.3.2.2

The Statutes

The following are the core pieces of legislation (excluding the complex body of federal child welfare, social security, employee benefits, income tax, jurisdictional, immigration, and citizenship laws etc. that are also relevant) currently constituting, or are closely related to, the contemporary legal framework for adoption in the U.S.83 Family First Prevention Services Act 2018 This Act overhauled federal child welfare financing. It enables states to use federal funds to provide enhanced support to children and families, thereby preventing the need to take children into the public care system. It supports states to establish an electronic interstate processing system for the placement of children in foster care, guardianship or adoption and it supports the recruitment and retention of high-quality foster families. The 2018 Act was reinforced by the Family First Transition Act 2019 and subsequently by the Further Consolidated Appropriations Act 2020 which provides financial relief for states to develop the prevention-focused infrastructure

81 Essentially, the following U.S. Constitution and federal statutes are of paramount importance: the Indian Welfare Act (25 U.S.C., Chap 21); the Adoption Assistance and Child Welfare Act 1980 (42 U.S.C., § 620); the Child Abuse Prevention and Treatment and Adoption Reform Act (42 U.S.C., Chap 67); and the CRS annotated Constitution. The Code of Federated Regulations (45 C.F.R., Part 1356) also plays an important role. 82 Note to author, 24.09.17. See, further, at: https://www.childwelfare.gov/topics/adoption/laws/ laws-federal/. 83 See, further, at: https://www.ncsl.org/research/human-services/family-first-prevention-servicesact-ffpsa.aspx#:~:text=The%20Family%20First%20Prevention%20Services%20Act%20also% 20seeks%20to%20curtail,for%20more%20than%20two%20weeks.

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for their child welfare systems. As of 2020, some 38 states had introduced bills modeled on the 2018 Act.84 The Every Child Deserves a Family Act 2013 This legislation provides that any organisation dealing with the foster and adoptive care of children, which receives federal funding, is prohibited from discriminating against prospective adopters in a same-sex relationship or if either identifies as LGBT. However the Trump administration, in its push back on such measures in favour of reinforcing conservative religious values, has eroded the legislative intent and effect of this statute.85 The Intercountry Adoption Universal Accreditation Act 2012 The 2012 Act, which came into effect on 14th July 2014, extends the safeguards provided by Hague accreditation to orphans born in countries that are not signatories to the Hague Adoption Convention, their adoptive parents, and birth parents. It modifies the provisions of the Intercountry Adoption Act 2000 by applying federal accreditation rules to intercountry adoptions from non-Hague nations. All adoption service providers working with families in non-Convention countries must now be accredited under the same accreditation standards that apply in Convention adoption cases. The Interstate Compact on the Placement of Children (Revised 2008) Developed in 1974, the compact was designed to ensure protection and services to children placed across state lines. It imposes a number of procedural requirements on domestic adoptive placements that involve more than one state. The Children’s Health Act 2000 This Act reinforced the Adoption Incentives Programme which provides for the payment of incentive funds to eligible states and territories to facilitate the recruitment of adoptive families for children with special needs and increase the number of children adopted from public foster care. The Safe Haven Laws Since 1999 most states have passed ‘safe haven’ laws in an attempt to prevent unsafe abandonment of babies and neonaticide. These tend to include provisions allowing parent(s), or those designated by the parent(s), to anonymously leave an “unwanted infant” at a Safe Haven center (hospital emergency room, fire station, police station), no questions are asked, no identification of parent(s) is required and no social or medical history of baby is required. Note that this act—invariably by, or directed by, a birth mother—can constitute a peremptory strike against the human rights of a putative father and will compromise those of the child thereby deprived of their right to access origins information needed to develop an authentic identity. 84 See,

further, at: https://www.ncsl.org/research/human-services/family-first-updates-and-new-leg islation.aspx. 85 See, further, at: https://everychilddeservesafamily.com/no-adoption-discrimination.

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The Adoption and Safe Families Act 1997 The principal aim of the 1997 Act is to promote the adoption of children in foster care. It amended but did not repeal the 1980 Act, and introduced two new concepts: the duty of a state to make reasonable efforts at ‘permanency planning’ once adoption or permanent guardianship becomes the goal; and the concept of ‘concurrent planning’.86 The Act also introduced ‘legal guardianship’ which provides authority for the transfer of parental rights to a relative enabling them to assume permanent care responsibility for a child failed by parental care.87 States are eligible to claim financial bonuses from federal funds if they exceed their set quota of annual adoptions.88 To qualify for federal funds a state scheme must show that ‘in determining reasonable efforts… to be made with respect to a child, and in making such reasonable efforts, the child’s health and safety shall be the paramount concern’.89 This shifted the legal emphasis from family preservation to the priority of child safety. It requires: a clear statement made in court when a care order is issued of the changes to be made by the parents within a 12 month period after which the child will either be returned to parental care or placed for adoption; a permanency hearing to be held 12 months after the issue of a care order; mandatory concurrent planning; and, after a child has been in care for 15 out of 24 months, good reason must be shown as to why a petition to terminate parental rights should not be filed. In effect the 1997 Act imposed a 15 month time limit on the use of financial resources to achieve family reunification after which resource allocation switches to supporting permanency through adoption. This was seen by some as a worrying development90 : This shift of resources into promoting adoption, as opposed to state-managed foster care, as a solution for children in ‘dysfunctional’ families can be seen as a form of ‘privatising’ child welfare.

There were also worries that adoption through the foster care system, would be viewed by some as a low cost and ‘working class’ alternative to intercountry adoption which, at up to $50,000 or more for a child, is an option in practice only open to the more wealthy. The Adoption Incentives program began in the fiscal year 1998 as part of the 1997Act and has since been reauthorized twice: as part of the Adoption Promotion Act of 2003 and as part of the Fostering Connections to Success and Increasing Adoptions Act of 2008. This approach has since been implemented, through replicated 86 42

USC section 675 (E). See, further, Chapter 2. ‘legal guardianship’ order bears a strong resemblance to the English ‘special guardianship’ order. Both offer a strategic half-way-house between long-term foster care and adoption that does not require the extinguishing of birth parents rights. 88 Federal funds were used as an incentive to encourage states to expedite the adoption of children in the public care system: states would receive $4000 for every child adopted beyond their best year’s total; an extra $4000 for every child aged nine and older; $2000 for every special needs child adopted above the baseline year; and additional federal funds if they exceeded their prior number of completed adoptions. 89 42 USC section 671 section 15. 90 See, Woodhouse, B. , op. cit. at p. 375. 87 A

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state legislation, across the US.91 The 1997 Act also established the Adoption and Foster Care Analysis and Reporting System (AFCARS), a mandatory data collection system. This provides evidence that the policy drive to use adoption to secure permanency for children unable to return to their birth families is indeed working. The Small Business and Job Protection Act 1996 This legislation prohibits “a state or other entity that receives federal assistance from denying any person the opportunity to become an adoptive or a foster parent on the basis of the race, color, or national origin of the persons or of the child involved.” The Multi Ethnic Placement Act 1994 This legislation and its 1996 successor prohibits discriminatory practices by banning the denial or delay of a foster or adoption placement solely on the basis of race, colour, or national origin of carer or child. It also compels states to make diligent efforts to recruit and retain foster and adoptive families that reflect the ethnic diversity of ‘waiting’ children. Two years later it was amended to prohibit any denial or delay in placement on the basis of race, color, or national origin. The Uniform Adoption Act 1994 This formative statute attempts a complete codification of adoption law. It provides, in Article 4, that a custodial parent’s unmarried partner, as well as the parent’s spouse, may adopt as a second parent, if the custodial parent consents and the court finds the proposed adoption to be in the child’s best interests. As Hollinger points out “the consequence of this kind of adoption is that the custodial parent consents to the adoption, but does not lose, or have to relinquish, his or her parental rights … the new adoptive parent becomes a full legal co-parent”.92 Only a minority of states have adopted the Uniform Adoption Act, in fact perhaps only Vermont.93 The Adoption Assistance and Child Welfare Act 1980 This, a legislative response to concerns that too many children were being removed from parental care only to disappear into the public care system, established the modern legal framework for child care. It introduced and positioned within statute law the formative concepts of ‘permanency’ and ‘reasonableness’ and provided the basis for a generation of professional intervention focused on rehabilitating children within their families of origin. It authorised the channeling of federal funds to those states that implemented child welfare laws emphasising family preservation and reunification and made ‘reasonable efforts’ to prevent the removal of children from their families or to reunite them as appropriate. It also funded state initiatives to provide post-adoption support for adopters of hard to place children. The human rights dimension to this legislative initiative was reinforced by the decision of the Supreme Court in Santosky v Kramer 94 which ruled that states must have “clear 91 See, further, The U.S. Dept of Health & Human Services, Children’s Bureau, at: https://www.acf.

hhs.gov/programs/cb/focus-areas/adoption. 92 See, Hollinger, J.H., Adoption Law and Practice, Lexis Publishing, New York, 1998–2005. 93 See, further, at: https://www.uniformlaws.org/Act.aspx?title=Adoption%20Act%20(1994). 94 455 US 755 (1982).

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and convincing evidence” that parents would be unable to care for their child before terminating parental rights or such action would be in breach of the Fourteenth Amendment. This legislation inaugurated an era characterised by public service investment in family reunification but, as Woodhouse pointed out, this was a failing policy95 : An over emphasis on ‘reasonable efforts’ was preventing children who would never realistically be reunited with their parents from moving on to find safe, permanent families through adoption.

Accordingly, in 1997 Congress passed the Adoption and Safe Families Act in order “to move abused and neglected kids into adoption or other permanent homes and to do it more quickly and more safely than ever before”.96 Indian Child Welfare Act 1978 As was explained in Adoptive Couple v Baby Girl,97 this legislation was designed to stop the practice of unwarranted removal of Indian children from Indian families “due to the cultural insensitivity and bias of social workers and state courts.” Consequently, as Diane Kunz notes, “it has made it extremely difficult for potential adoptive parents to adopt children whose birth parents are members of federally registered Indian tribes”.98 In practice the provisions of the Indian Child Welfare Act often need to be considered in conjunction with those of the Interstate Compact on the Placement of Children (see, further, Sect. 21.6.2.2).99 Other Relevant Provisions The Fostering Connections to Success and Increasing Adoptions Act 2008, as the title suggests, was intended to increase support for foster parents and improve incentives for adoption. The Adoption Promotion Act 2003 reauthorized the adoption incentive payments program under part E of title IV of the Social Security Act. The Family and Medical Leave Act 1993 made provision for adoption related tax credits of up to $10,000 per adoption, and subsidies for families who adopt children with “special needs” .

95 See, Woodhouse, B. , ‘The Adoption and Safe Families Act: A Major Shift in Child Welfare Law and Policy’, in Bainham, A. (ed.), The International Survey of Family Law, 2000 Edition, Family Law, Bristol, 2000 at p. 380. 96 See, Senator Rockefeller of West Virginia, 143 Cong. Rec. 12199. 97 Adoptive Couple v Baby Girl 12-399 (2013); 398 S.C. 625, 731 S.E.2d 550 (2012). See, 2013 U.S. LEXIS 4916, 2013 WL 3184627. 98 Note to author (30.08.2020). 99 See, further, at: https://law.capital.edu/adoption/#sthash.r0UHEGH0.dpuf.

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8.3.3 International Law A founder member of the United Nations and signatory State to the UDHR, the US has been a leading nation in the promotion of international law (see, further, Sect. 4.4). On April 1, 2008, the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption came into effect for all Intercountry Adoptions between the United States and other Hague Convention countries.100 The U.S. has also: ratified the Convention on the Civil Aspects of International Child Abduction 1980; signed and ratified the International Covenant on Civil and Political Rights (ICCPR); signed but not yet ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child 1989 (UN CRC), the International Convention on Economic, Social, and Cultural Rights (ICESCR). Similarly, as founder member of the American Convention on Human Rights, this nation has committed itself, in Articles 17 and 19, to defending the integrity of the family unit and ensuring the protection of children respectively. Other relevant legislation includes the Protocol of San Salvador and the Riyadh Guidelines.

8.3.3.1

The Intercountry Adoption Universal Accreditation Act 2012

With effect from July 14th, 2014, this domestic statute required adoption service providers working with prospective adoptive parents in non-Convention adoption to comply with the same accreditation requirement and standards that apply in Convention adoption cases. It defined “adoption services” as including: identifying a child for adoption and arranging an adoption; securing necessary consent to termination of parental rights and to adoption; performing a background study on a child or a home study on a prospective adoptive parent, and reporting on such a study; making determinations of the best interests of a child and the appropriateness of adoptive placement for the child; post-placement monitoring of a case until final adoption; and where made necessary by disruption before final adoption, assuming custody and providing child care or any other social services pending an alternative placement.

8.3.3.2

The Intercountry Adoption Act 2000

This domestic legislation has provided the legal framework for ICA. It designated the Department of State as the United States’ Central Authority with plenary authority to facilitate and oversee US participation, as both a sending and a receiving country, in inter-Convention country adoptions. It was designed to be consistent with the basic principles and provisions of the Convention and provides that only accredited 100 Intercountry

Adoption Act of 2000, codified at 42 U.S.C. sec. 14901 et seq. The Hague Convention was expected to be ratified by the U.S. by the end of 2004, then by 2007.

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agencies or approved persons will be allowed to provide adoption services with respect to a Convention adoption in which the US is either a receiving or a sending country. This legislation was closely followed by the Child Citizenship Act 2000 which provided automatic citizenship status for children adopted by Americans.

8.3.3.3

The Hague Convention

The US signed the Convention in 1994, it took effect on April 1, 2008 and since the latter date ICA adoptions are required to be Hague compliant (see, further, Sect. 5.6.1.2).

8.4 Regulating the Adoption Process The challenges involved in regulating domestic adoption practice probably first surfaced with the ‘orphan train’ programme. From 1854–1929, a total of perhaps 200,000 homeless or orphaned children were shunted by train from the cities to rural sites in the American mid-west where, lined up on train platforms, they would be made available to prospective adopters.

8.4.1 Length and Breadth of the Process As there is no national legal framework governing the adoption process, law and regulatory matters continue to be determined separately by each of the 50 states and the District of Columbia, though some umbrella pieces of legislation and judicial decisions bring a degree of commonality to law and practice across all states. Non-consensual placements, however, and Convention adoptions attract standardized regulatory provisions. A distinguishing feature of adoption in the US is that, in keeping with the prevailing federalist and ‘free-market’ ethos, consensual placements are not subject to the type of tight regulatory systems that characterise the way in which other nations, such as the UK, manage the adoption process. More so than other countries, the adoption process in the U.S. would seem prone to obstruction or abrupt termination by external political intervention. This was the case in 2013 when the ICA adoption process in respect of 27 Russian children, scheduled for placements with their American adopters, was halted by the Russian government. The resulting court proceedings found that the human rights of the children to family life under Article 8 of the ECHR had been violated.101

101 A.H.

and Others v Russia (nos. 6033/13 and 22 other applications), 2016.

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8.4.2 Role of Adoption Agencies and Other Administrative Bodies In the U.S., adoptions are most usually arranged by adoption agencies that are either public child welfare agencies (exempted from accreditation requirements) or private independent organisations. In either case, such an agency provides the link between children in need of a home and prospective adoptive parents. There are a lot of them: an estimated 1,552, of which 192 focus on intercountry adoptions.102 Adoption agencies assess prospective applicants, arrange suitable placements and process court applications. They accept full legal responsibility for a prospective adoptee when the birth parent/s relinquish their parental rights to the agency. They often provide pre and post support services for birth mothers and they usually have very long waiting lists. The pivotal position of such agencies in the adoption process is accompanied by legal responsibilities. An adoption agency may be liable to adopters for ‘wrongful adoption’ i.e., a failure to disclose facts about a child’s history, including genetic information, that could have had a bearing on their decision to accept a particular placement.103

8.4.2.1

Voluntary or Independent Adoption Agencies

All private agencies involved in domestic adoptions are required to be licensed and to submit to monitoring, periodic inspection and state regulatory systems. These agencies may be used by public child welfare departments to place children from foster care, and by prospective adopters or birth parent/s wishing to make private adoption arrangements. In the latter case, as an alternative to making a direct placement, a parent may place their child through an agency after having formally relinquished all rights. This is often done on a for-profit basis: ‘accredited agencies’ must be nonprofit; but in an ICA context, ‘approved persons’ or ‘facilitators’—a category that may include large organisations as well as lawyers, social workers and independent consultants—are entitled to operate on a fees for service basis. This commercial component to private placements is a distinctive and long-standing characteristic of the adoption process in the U.S. All adoption agencies working internationally were, from 2008 until 2019, regulated by the Council on Accreditation (COA), a nonprofit based in New York City and overseen by the State Department. The COA accredited some 2,200 organizations and had authority to suspend or terminate accreditation on a finding of wrongdoing. 102 See,

Quiroz, P.A., 2007. for example, the Ohio case of Burr v. Board of County Commissioners 491 NE2d 1101 (Ohio 1986) where the tort of ‘wrongful adoption’ first attracted judicial notice and Meracle v. Children’s Service Society (1986) where an agency was prosecuted for willful negligence. Also, see, Blair, D.M., ‘Liability of Adoption Agencies and Attorneys for Misconduct in the Disclosure of Health-Related Information’, in Hollinger, J.H. and Leski, D.W. (eds.), 2 Adoption Law and Practice, 1998 at para 16.01–16.08. 103 See,

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In 12 years of regulating international adoptions, it has cancelled the accreditation of only 11 agencies and suspended 17. In 2017, the State Department announced the launch of another regulatory agency—the Intercountry Adoption Accreditation and Maintenance Entity, Inc., (IAAME)—created for the sole purpose of the accreditation, approval, monitoring and oversight of adoption service providers providing intercounty adoption services. The COA in its final report detailed foreign governments’ concerns about the conduct of ICA agencies and adoptive families: the failure to submit required post-adoption reports; disrupted adoptions; and allegations of unethical practices. It has now been replaced by the IAAME. The Hague Complaint Registry, operated by the State Department, also functions to an extent as a regulatory mechanism in that it receives complaints about adoption agencies from adoptive parents. Furthermore, the State Department has the power to “debar” an adoption agency, and in 2016 it debarred an Ohio-based agency called European Adoption Consultants for “a pattern of serious, willful, or grossly negligent failures to comply” with accreditation standards. Concern has been expressed that the regulatory provisions in the Intercountry Adoption Act, s 203(b)(2), are inadequate to ensure effective policing of ‘facilitators’ profit-making activities in intercountry adoption.104 Laws relating to equality and non-discrimination have impacted adoption in the US as they have in the UK. The resulting difficulties are well illustrated by the travails of the Catholic Charities adoption agencies. State administrators had required Catholic Charities, because it accepted public funds, to provide adoption and fostercare services to same-sex couples in the same manner that they serviced different-sex couples. Rather than comply, Catholic Charities closed most of its Illinois affiliates forcing the state to transfer more than 1000 children from the charity’s custody to secular agencies. The consequent disruption to the care arrangements for so many children, including the probability of losing the opportunity for adoption, clearly impacted upon their human rights. Moreover, racial inequity if not outright discrimination has also been a constraint in determining which children enter the adoption process. While African American children are over represented in the care system,105 there is a scarcity of available African American foster parents and adopter preference overall is for white children. Consequently there is a stronger probability that black children will be denied access to adoption. Many infants, most of whom are black, leave the US through outgoing adoption every year.106 104 See,

for example, the Donaldson Institute at: https://www.facebook.com/adoptioninstitute. S., ‘The Elusive Continuum of Child Welfare Services: Implications for Minority Children and Youth’, Child Welfare, 69, 1990, pp. 551–562. Also, Tatara, T., Characteristics of Children in Substitute and Adoptive Care: A Statistical Summary of the VCIS National Child-Welfare Database, American Public Welfare Association, Washington, DC, 1993. 106 Buckwalter-Poza, R., ‘America’s Unseen Export: Children, Most of them Black’, Pacific Standard, 24th June, 2014, at: https://www.psmag.com/navigation/politics-and-law/outgoing-adoptionamericas-unseen-export-children-black-84084/. Also, see, Selman, P. , ‘The Rise and Fall of Intercountry Adoption in the 21st Century: Global Trends from 2001 to 2010’, in Gibbons, J. and Rotabi, K. (eds.), Intercountry Adoption: Policies, Practices, and Outcomes, Farnham, Ashgate, 2012. 105 Stehno,

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8.4.2.2

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Adoption Service Providers

Since the Intercountry Adoption Universal Accreditation Act 2012 took effect on July 14th, 2014, only accredited agencies or approved persons can act as adoption service providers not only in Hague Convention adoption cases, but also in all non-Convention orphan cases begun after that date. At that time there were approximately190 accredited nonprofit agencies and for-profit approved persons; many affiliated to religious denominations. The statute defines “adoption services” as including: identifying a child for adoption and arranging an adoption; securing necessary consent to termination of parental rights and to adoption; performing a background study on a child or a home study on a prospective adoptive parent, and reporting on such a study; making determinations of the best interests of a child and the appropriateness of adoptive placement for the child; post-placement monitoring of a case until final adoption; and where made necessary by disruption before final adoption, assuming custody and providing child care or any other social services pending an alternative placement.107

8.4.2.3

US Department of Health and Human Services, Administration for Children and Families, Children’s Bureau

The brief of this agency includes the development of programs that increase the number of adoptions, and strengthen foster care. It provides funding to states and tribes to help them support families who adopt from foster care. It is responsible for administering the Adoption and Legal Guardianship Incentive Payments programme, now functioning under the aegis of the Family First Prevention Services Act utilising funds authorized under title IV-E of the Social Security Act.

8.4.2.4

Central Authority

The Intercountry Adoption Act 2000 designated the Department of State as the United States’ Central Authority with plenary authority to facilitate and oversee U.S. participation, as both a sending and a receiving country, in inter-Convention country adoptions. Following ratification of the Hague Convention, all private adoption agencies involved in intercountry adoption have to be state-licensed and also accredited through the U.S. Central Authority which has delegated authority to private accrediting entities to accredit or approve adoption service providers (this is proving to be a very bureaucratic process). As Hollinger points out “the State Department’s role as the U.S. Central Authority goes way beyond its oversight of the accreditation and approval procedures administered by accrediting entities”.108 It has, for 107 See,

the Intercountry Adoption Act 2000, s 3 (42 U.S.C. § 14902). Hollinger, J.H., Chapter 11, in Adoption Law and Practice, Lexis Publishing, New York, 2008 (as updated). 108 See,

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example, extensive information dissemination and co-ordination duties. It has been held responsible for “instigating a long series of intercountry adoption policy changes that resulted in an 80% decline in the number of intercountry adoptions to the United States since 2004”.109

8.4.2.5

Adoption Committee

The functions of an Adoption Panel in the U.K. are usually performed in the U.S. by an adoption committee which comprises much the same mix of executive officers, specialist professionals and some independent members. A licensed adoption agency will normally ensure that the administrative tasks relating to the eligibility/suitability of all parties, selecting approved adopters and agreeing matched placements are assigned to such a committee.

8.4.3 Role of the Determining Body In all states, adoption is a judicially determined process set within a statutory framework.

8.4.3.1

Role of the Judiciary

The judiciary play a key role in the US adoption process: all hearings for adoption applications are conducted before a judge; the eligibility of the parties, the required consents and the welfare interests of the child concerned are among the crucial matters that fall to be judicially examined. A judicial overview of the process, of the propriety of the agencies and professionals involved, provides the best assurance that the proceedings and the outcome will be compatible with a child’s welfare interests.

8.4.4 Registrar All states have laws that provide a formal process for the registration of an adoption order by the state Registrar in a Registry of Births. The Registrar is also responsible for the issue of a birth certificate naming the adopters as parents of the child, for recording in a separate register the facts relating to the birth parents and for determining rights of access to identifying information.

109 See,

further, at: https://www.adoptioncouncil.org/blog/2017/10/coa-to-terminate-their-role-asa-national-accrediting-entity.

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8.5 Thresholds for Entering the Adoption Process: Eligibility and Suitability Criteria In the U.S. the criteria governing entry to an adoption process is set by similar statutory requirements in all states.

8.5.1 The Child The availability of a child for adoption is determined by either the existence of parental consent, the absence of any need for it (i.e., being orphaned or abandoned) or the presence of grounds for dispensing with it (i.e., judicial removal of parental rights) as set out in the Adoption and Safe Families Act 1997. For many children, the subjects of intercountry adoption processes, the U.S. ratification of the Hague Convention in 2008 had the immediate negative effect of stalling those processes and leaving them and their prospective adopters in limbo—often for years (see, further, Sect. 5.6.1.1). In Guatemala, for example, some 4000 U.S. adoptions (some at an advanced stage) came to an abrupt halt when the standards of practice governing the legal availability of children were judged to be non-Hague compliant.110 Since the introduction of the Hague regulatory regime in 2008 the children available for intercountry adoption has been broadened beyond the restrictions of ‘orphan’111 to also include those whose both parents are alive (married or unmarried) so long as the parent/s or an entity with legal custody of a child “have freely given their written irrevocable consent to the termination of their legal relationship with the child, and to the child’s emigration and adoption.”112 Those children not subject to Hague procedures must continue to satisfy the legal definition of ‘orphan’113 : 1.

The child must be under the age of 16 at the time the Form I-600 petition is filed on his or her behalf, or be under the age of 18 and a sibling of a child (under the age of 16) who has been or will be adopted (by the same adoptive parents);

110 See,

further, ‘Stalled Adoption Program in Guatemala Leaves Families in Limbo’, New York Times, December 8, 2012. 111 See, 8 U.S.C. § 1431 (1994), as amended by Child Citizenship Act 2000. Under 8.U.S.C. § 1101(b)(1)(F), an “orphan” for purposes of federal immigration law is a child who is under sixteen years of age at the time a petition on the child’s behalf is filed by a U.S. citizen to classify the child as the citizen’s “immediate relative.” The child’s birth parents both have to be deceased, or, if alive, must have disappeared, abandoned, deserted, or otherwise been separated from the child. A child may also qualify as an orphan if there is a “sole or surviving parent [who] is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption.” A sibling of an eligible orphan child may also satisfy the Section 1101(b)(1)(F) criteria under certain circumstances (see, further, Hollinger, J.H., op cit). 112 See, 8 U.S.C. § 1101(b)(1)(G). 113 See, further, at: https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Pro cess/before-you-adopt/who-can-be-adopted.html.

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3.

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The child must either have no parents because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents; or have a sole or surviving parent who is incapable of providing proper care for the child and has, in writing, irrevocably released the child for emigration and adoption; The adopting parents must have completed a final adoption in the child’s country of origin or obtained legal custody of the child for purposes of emigration and adoption in the United States; and The child has been or will be adopted by a married U.S. citizen and spouse jointly, or by an unmarried U.S. citizen at least 25 years of age, with the intent of forming a bona fide parent/child relationship

8.5.2 The Birth Parent/s The presumption that birth parents have a legal right to the custody of their children is well established.114 Indeed the courts have often referred to a presumption (albeit a rebuttable one) that “natural bonds of affection lead parents to act in the best interests of their children.”115 Parental consent is thus the primary issue to be addressed: initially at the placement stage and finally at the hearing. Where the parents of the child to be adopted are or have been married to each other then the consent of both is required, or grounds for dispensing with this must be available. In relation to intercountry adoption, evidence is required that the birth parent/s are dead or have abandoned the child (including abandoned to institutional care) or—since mid-2008—otherwise fit within the ambit of the Immigration and Naturalization Act.

8.5.2.1

Unmarried Mother

The consent of an unmarried mother, or grounds for dispensing with it, must always be available. Most states have laws stipulating a minimum time period following birth of a child before the mother can give a valid consent to adoption. There is no law in any state that requires a pregnant woman intending to have that child adopted to divulge the identity of the father—to that father or to any state authority.

8.5.2.2

Unmarried Father

Until the early 1970s, the unmarried father of a child relinquished by the mother had no legal standing in adoption proceedings; his consent was not required and he 114 The

parental right to custody has been deemed a fundamental right by the U.S. Supreme Court. See, for example, Santosky v. Kramer 455 U.S. 745 (1982). 115 See, for example, Parham v. J. R., 442 U.S. 584, 602 (1979); Casey, 505 U.S., at 895; and Santosky v. Kramer 455 U.S. (1982) at 759.

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was not even entitled to formal legal notice of such proceedings. This situation was altered by the case of Stanley v. Illinois116 which changed American adoption law. The decision was confined to the issue of an unmarried father’s lack of status in proceedings affecting his children who lived with him. However, the Supreme Court in a footnote to its judgment added that such a father should also be given the opportunity to be heard in adoption proceedings. Subsequently, in Lehr v. Robertson,117 the Supreme Court held that a putative biological father who had never established an actual relationship with his child did not have a constitutional right to notice of his child’s adoption by the man who had married the child’s mother. The court reiterated comments made in an earlier case that a parent’s liberty interests “do not spring full-blown from the biological connection between parent and child. They require relationships more enduring”.118 Essentially, such a father must prove both paternity and parental care. As of 2018, some 33 states had birth father registers allowing a man who is the father of a baby, or thinks he might be, to record his interest in the child. Once registered, such a father must be notified where feasible that adoption proceedings in respect of his child have been, or will shortly be, commenced. However, a father would need to appropriately evidence any such ‘involvement’. This was highlighted by the decision of the U.S. Supreme Court in Adoptive Couple v. Baby Girl.119 The court then set aside the Indian Child Welfare Act as not being relevant to the particular set of circumstances and instead relied upon customary legal benchmarks to refuse the father’s claim to custody of his child relinquished by the mother for adoption. The court found that the father (a member of the Cherokee Nation): had never lived with the unmarried mother (who was not a native Indian) nor had he ever had any direct care responsibility for the child; he had never contributed financially to the maintenance of mother or child; and he had earlier declared that he would relinquish his parental rights (see, further, Sect. 21.6.2.2).

116 405

US 645 (1972) at f/n 9 where in reference to ‘custody or adoption proceedings’ it is stated that: “Extending opportunity for hearing to unwed fathers who desire and claim competence to care for their children creates no constitutional or procedural obstacle to foreclosing those unwed fathers who are not so inclined” (p. 657). As cited by Katz, S., ‘Dual Systems of Adoption in the United States’, in Katz, S., Eekelaar, J. and Maclean, M. (eds.), Cross Currents: Family Law and Policy in the United States and England, Oxford University Press, Oxford, 2001 at p. 279. For further Supreme Court rulings positively affecting the locus standi of unmarried fathers see, Quilloin v. Walcott, 434 US 246 (1978), Caban v. Mohammed, 441 US 380 (1979) and Lehr v. Robertson, 43 US 248 (1983). 117 463 U.S. 248 (1983). 118 Ibid. at p. 260, citing Caban v. Mohammed, 441 U.S. 380, 397 (1979). 119 12-399 (2013); 398 S.C. 625, 731 S.E.2d 550 (2012). See, 2013 U.S. LEXIS 4916, 2013 WL 3184627.

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Failed Parental Rehabilitation

Unquestionably, the Family First legislation marks a change in policy. It places an onus on HSS to increase intervention aimed at supporting failing parental care rather than at peremptorily rescuing children at risk. It remains to be seen whether this policy change will translate into legal change with the judiciary raising the bar on proving the grounds for justifying a removal of parental rights and a consequent slow down in children entering the public care system and a decrease in those exiting it through the adoption gateway. Whereas previously federal funding—via Title IV-E—was restricted to defray state authorities costs incurred post-admission to public care, it is now available to assist with preventative measures intended to reinforce parental coping capacity.

8.5.3 The Adopters: Eligibility and Suitability Criteria There is little difference between the U.S., the U.K. and other developed western nations in the criteria applied by agencies and judiciary for assessing the eligibility and suitability of adopters. In this jurisdiction, however, a good deal of controversy has been generated by a perceived political dimension in respect of issues relating to matching the ethnicity of adopters and adoptee, and facilitating same sex adoptions. While neither the Uniform Adoption Act nor state legislation modeled upon it place any restrictions on adoption by unmarried applicants, there is still some ambivalence and an outright ban in some 12 states including Louisiana.120 In addition, some states disqualify those suffering from physical or mental disabilities or impose “reputability requirements” which exclude individuals with a history of criminal convictions or employment instability.

8.5.3.1

Third Party Adopters

The ambivalence regarding unmarried couples as adoption applicants continues to trouble the adoption process in the U.S. as in many other countries. Other issues such as the upper age limit of adopters, willingness to accommodate contact arrangements and the availability of state financial support have generated much the same the same

120 As identified by the Williams Institute of the UCLA School of Law in 2013, these states include

Alaska, Iowa, Kansas, Kentucky, Maine, Nebraska, New Hampshire, North Dakota, Ohio, West Virginia, Wisconsin, and Utah.

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level of controversy in the U.S. as in the U.K. Transracial adoption has been and continues to be a particularly sensitive matter for policy and practice. LGBT Adopters Although same sex marriage was legalised countrywide by the ruling in Obergefell v. Hodges,121 adoption by same sex couples continued for a time to be banned in many states: several such as Florida, had legislation expressly prohibiting lesbians or gays from adopting children in foster care122 ; not until 2016 was the prohibition on adoption by same-sex couples repealed in Mississippi; not until 2017 was the law changed to allow same sex couples in Arkansas to be named as such on a child’s birth certificate123 ; but by the end of that decade LGBT adoption had become legal in all states. Rulings by the USSC124 finally ended any lingering legal inconsistency across the US.125 LGBT and Faith Based Adoption Placements The Freedom to Serve Children Act, introduced in the Texas legislature in 2017,126 was perhaps an early indicator of the new front opening up in this country’s endemic culture wars which will see religion used to push back the LGBT norms now legally established, if not yet wholly accepted, across the US. This legislation proposed to give children’s service providers, including adoption agencies, the right to decline services to individuals based on “the provider’s sincerely held religious beliefs.” The ACLU protested that this initiative “would allow child welfare service providers that contract with the state to use taxpayer money to discriminate against LGBT individuals and families in foster care, adoption and other services”.127 Nonetheless, the Trump administration has built on the Texan initiative and the HSS has now sanctioned other similar exemptions to adoption and foster care service providers in many states. This development needs to be viewed against a backdrop which has seen adoption championed by religious organisations as a means of ensuring the salvation of the souls of children. Arguably, when religion becomes the driving force—for or against adoption—then the welfare interests of children are at risk.

121 576

U.S., (2015). v. Sec’y Dept Children & Family Services 358 F.3d 804 (11th Cir. 2004). 123 Pavan v. Smith 582 US _ (2017). 124 See, for example, Adar v. Smith, 622 F.3d 426 (5th Cir. 2010) and V.L. v. E.L, 577 US, (2016). 125 See, further, Mabry, C.R., ‘Joint and Shared Parenting: Valuing all Families and all Children in the Adoption Process with an Expanded Notion of Family, American University of Gender, Social Policy and the Law, Vol 17, (2009), 659, 661. 126 HB 3859. 127 See, further, at: https://www.aclutx.org/en/press-releases/avalanche-proposed-religious-refusalbills-would-allow-use-religion-justify. 122 Lofton

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First Party Adopters

Where a birth parent is also an adopter, as in step-parent adoptions, and the consent of the other parent is available, the courts generally find that eligibility and suitability criteria are readily satisfied. Usually, as in the U.K., adoption agencies are not required to assess step-parent applicants. Although the latter’s eligibility and suitability remain to be judicially assessed (usually based upon a home study report, background checks and the mandatory consent of the child’s noncustodial parent), a minimum period of care is not normally required as, for the children concerned, their adoption signifies a minimal adjustment rather than a complete change in home and family life. In the case of kinship adopters, the courts have shown a willingness to be flexible in relation to age and health criteria.

8.5.3.3

Intercountry Adopters

ICA adoption applicants, as the State Department points out, have to satisfy three sets of laws: U.S. federal law, the laws of the prospective adoptive child’s country of origin, and the laws of the adopters state of residence.128 Since April 2008, many such adoptions have been subject to Hague Convention requirements and the criteria applied to assess adopters are therefore the same as in other signatory states (see, further, Sect. 5.6.3.1). Those that are not processed in accordance with Hague must satisfy the specific traditional US requirement that the child be an orphan (an ‘immediate relative’ is included in that definition). However, as the landscape of intercountry adoption changes—the children becoming available are now more likely to be older, institutionalized and have serious health and/or social care issues—so also must greater care be taken to ensure an appropriate match between the needs of the child and the skills and experience of their prospective adopters. A situation complicated by the fact that many intercountry adoptions continue to bypass Hague Convention safeguards as they are arranged in non-Hague compliant countries. In this context it seems appropriate to draw attention to the questionable relevance of existing suitability criteria to those whose motivation for adoption springs from, or has been heavily influenced by, their fundamentalist Christian beliefs. While this matter by no means confined to adopters, to intercountry adoption nor to the U.S., the phenomenon of Christian fundamentalism has become more entrenched in the U.S. than elsewhere in the developed nations of the western world. The death in May 2011 of 13 year old Hana Williams at the hands of her abusive adopters, three years after leaving Ethiopia, was just one of dozens of adoptees alleged to have been killed by their U.S. adoptive parents’ in the previous 20 years.129 128 See,

further, at: https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Pro cess/before-you-adopt/who-can-be-adopted.html. 129 See, further, Joyce, K., ‘The Tragic Death of Ethiopian Adoptee Hana Williams, and How It Could Happen Again’, at: https://www.slate.com/articles/double_x/doublex/2013/11/hana_williams_the_ tragic_death_of_an_ethiopian_adoptee_and_how_it_could.html posted on Nov 11, 2013. Also, see,

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Many of those deaths shared a common factor: they were of children reared in large families (ranging from six to dozens of children) by adopters with fundamentalist beliefs; beliefs that translated into a harsh disciplinary approach to child rearing which centred on the importance of obedience. It would seem that in the mid-and late 2000s, home-schooling conservative Christian parents of large families turned to adoption in quantifiable numbers, seeing it as an opportunity to rescue children and demonstrate their faith by instructing the adoptees in Christian principles. While court proceedings have revealed some of the tragic outcomes of this approach, it is probable that the lives of others, uprooted from their countries, culture and kinfolk—by devoutly religious adopters—have been damaged and distorted by good intentions that in some instances proved wholly adverse to the welfare of children; welfare which in other instances was undoubtedly promoted by religiously committed good parents. How to detect and counsel out those prospective adopters who, by subscribing to a rigid doctrinaire set of values, could crush rather than promote the welfare of a child, presents a serious challenge to the professions concerned. The difficulty here is at heart rooted in cultural preconceptions. The Evangelical background of some assessing social workers may well incline them towards intuitively respecting and endorsing the goodwill, best intentions, dedicated Christian sense of purpose and enthusiasm of prospective adopters, as representing a ‘godsend’ for children with pronounced health or social care problems abandoned in foreign orphanages. This susceptibility is reinforced when avowed Christian principles are supported by the applicants’ years of child rearing experience in parenting large families. When, as in the case of Hana, the applicants express a preference for the older more harder to place child then the position of prospective adopters becomes virtually unassailable: to deny an overseas child with ‘special needs’ the only chance they are likely to get to be matched with applicants who have chosen that challenge, requires good reason; when faced with applicants who are upheld as models of Christianity in their community, social workers of a Christian Evangelical persuasion may be hesitant to seek such reasons. The cultural preconception difficulty is not confined to the role of an assessing social worker. The respect for those who would volunteer for such a task extends to respecting their privacy should they wish for space to settle the adoptee in their new family by opting for homeschooling. While this is most often a very successful means of educating children, it is clearly restrictive for those without any established social links to their peer group and it can make parenting more private, intense and stressful. Basically, post adoption support services for such parents and the children concerned is crucially important and should be pursued—whether or not it is perceived as intrusive by parent, adoptee or social worker—to monitor and ensure the child’s welfare. This is doubly important when homeschooling removes the child

Washington’s Department of Social and Health Services (Office of the Children’s Ombudsman) which published a report on the ‘Severe Abuse of Adopted Children’ in September 2012, at: https:// www.dshs.wa.gov/pdf/ca/SevereAbuseofAdoptedChildrenReport2012.pdf.

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from opportunities for peer integration, from the eyes of the community at large and from exposure to other forms of professional monitoring. Where private agencies—such as Adoption Advocates International in Hana’s case—assess, match and place a child, their responsibilities and legal authority end with the adoption order. The self-reporting obligation that rests on adopters to update the agency for 6 months post-adoption is voluntary, without any statutory means of enforcement. In some other countries, ensuring the provision of such reports at regular intervals together with appropriate support services, for a period of some years post-adoption, is a statutory duty that rests upon the local public child welfare department or appropriate accredited agency. Re-homing ‘Re-homed’ adopted children are those who are voluntarily transferred by their adopters to new families through a basic ‘power of attorney’ document—a notarized statement declaring the child to be in the care of another adult. It would seem to be a practice confined to the US and, by some estimates, may involve as many as one in four ICA adoptions.130 The new guardians are able to enroll a re-homed child in school and, in some cases, have been able to claim tax deductions and government benefits. Following a Reuter’s investigation into this practice131 the US Government Office of Accountability (GOA) released a report132 and some states—Wisconsin, Ohio, Colorado and Florida have since introduced legislation aimed at protecting children from re-homing. Needless to say, this practice which bypasses the adoption process and all relevant professional screening is little more than a form of “trafficking” and as such seriously violates an adoptee’s human rights and may well breach those of the birth parents.

8.6 Pre-placement Counselling While post-adoption counselling is available in many states, the public and private adoption agencies in most if not all states are also required to provide pre-adoption counselling to the birth mother, and to the birth father if he is involved, regarding their legal rights and the options available. Counselling must also be offered to prospective adopters.

130 See,

further, at: https://adoptionland.org/rehoming-international-adoption/. Reuters, ‘The Child Exchange: Inside America’s Underground Market for Adopted Children’, Reuters, 9th September 2013, at: https://www.reuters.com/investigates/adoption/#article/ part1. 132 See, ‘CHILD WELFARE: Steps Have Been Taken to Address Unregulated Custody Transfers of Adopted Children’, GAO-15-733, Sep 16, 2015, at: https://www.gao.gov/products/GAO-15-733. 131 See,

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8.7 Placement Rights and Responsibilities The placing of a child for adoption is the most crucial decision in any adoption process. A singular feature of that process in the US is that, in the majority of placements, this decision is taken by the birth parents. Prospective adopters may make a direct personal approach to a pregnant woman/young mother or may do so through the mediation of a third party or perhaps by placing an advertisement in local, national or international journals or on the internet.

8.7.1 Authority to Place In practice the authority to make such a placement is most usually exercised by the mother, the birth father playing either no part or merely acquiescing in maternal decision-making. Many but not all states continue to permit the traditional practice whereby independent mediators, such as lawyers, acting as ‘honest brokers’ can make placement arrangements.

8.7.1.1

Placement with Birth Parent Consent

The right of a birth mother to place her child for adoption with whomsoever she chooses, or to authorise another person to do so on her behalf, has been embedded in the laws of most states; only four restrict placement to agencies in non-relative adoptions.133 As Hollinger has noted134 : All but a handful of states permit direct non-agency placements, and most domestic adoptions of infants are the result of voluntary direct placements.

Given that some 45% of US adoptions originate in private arrangements,135 the suitability of adopters falls very largely to be decided by birth mothers. While this is most obviously the case in step-parent adoptions, and when direct placements are made by birth mothers, it is also, in effect, the reality in agency adoptions when a relinquishing birth mother chooses from agency profiles of prospective adopters registered with an adoption agency; and it may extend to face-to-face meetings. Prospective adopters are encouraged to prepare a videotape—in which they relate their qualities—for distribution to birth mothers. The latter’s choice may well be influenced by financial considerations as brokered by the intermediary. Otherwise, in a private adoption context, placement decisions are made by adoption agencies at their discretion following formal parental relinquishment of the child to the agency. 133 Colorado,

Connecticut, Delaware and Massachusetts. Hollinger, J.H., ‘Overview of Contemporary Challenges to State Adoption Laws’ at p. 4. 135 See, further, at: https://www.childwelfare.gov/pubPDFs/s_adopted.pdf#page=6&view=Fin dings:%20Children%20Adopted. 134 See,

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Placement Without Birth Parent Consent

In a private context, the placement proceeds on the basis of the birth mother’s consent: that of the birth father will not be sought or required unless he has entered his identity and contact details in the state registry; the mother is under no legal obligation to notify him or to disclose his identity. In a public child care context, the placement is made by the relevant government agency following judicial termination of parental rights. Courts have often referred to the presumption (albeit a rebuttable one) that the “natural bonds of affection lead parents to act in the best interests of their children.”136 Grounds for the termination of parental rights, in circumstances of parental neglect or abuse as set out in the Adoption and Safe Families Act 1997, are provided by the child welfare laws of all states and if satisfied will enable the child to be placed by the relevant public service agency with selected prospective adopters, and in due course allow the latter to commence adoption proceedings. Welfare Interests of the Child As Justice Stevens has pointed out, “the constitutional protection against arbitrary State interference with parental rights should not be extended to prevent the states from protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child”.137 However, any such “arbitrary exercise of parental authority”—including, presumably, neglect—must be such as to result in the termination of parental rights before welfare interests can permit an adoption placement.

8.7.2 Placement Supervision The Interstate Compact for the Placement of Children, endorsed by all states, provides procedures to safeguard children in pre-adoption interstate placements. Otherwise, responsibility to supervise placements rests with the placing agency or with the local HSS office on which notice of placement must be served.

8.8 The Hearing A judicial hearing, held in camera and subject to the usual reporting restrictions, but managed in a more relaxed manner than other court proceedings, provides the context for determining all adoption applications across the U.S. In compliance with the due process principle, all persons involved (such as unmarried fathers) are 136 See,

for example, Parham v. J. R., 442 U.S. 584, 602 (1979); Casey, 505 U.S., at 895; and Santosky v. Kramer op cit at 759. 137 Ibid., per Stevens J.

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served with notice of proceedings and representation is provided to those (such as children) whose interests are being determined. At this stage, the availability of full and informed consents (unless statutorily dispensed with) for adoption from all relevant parties—even though already obtained or dispensed with for placement—is judicially confirmed.138

8.8.1 Where Consent Is Available As has been noted: “a court cannot approve an adoption without proof that a child’s birth parents have executed voluntary and informed consents, or, alternatively, that their parental rights were terminated because of their failures to perform parental duties … without a voluntary relinquishment or forfeiture of parental rights, the state has no license to remove children from their parents in order to seek a ‘better’ placement”.139 An informed consent—in writing and either witnessed and notarized or executed before a judge or other designated official—from both birth parents is a standard requirement in all states. Where the consent of all parties is available in a kinship application the court is unlikely to pursue any further enquiries.

8.8.1.1

Consent of Unmarried Father

Only the consent of an unmarried father with established paternity rights is necessary. As previously mentioned, most states have a putative father registry in which an unmarried birth father may record his paternity and contact details in a prescribed manner and within a designated time period. This officially recorded data provides the basis for serving notice on an unmarried father of the fact that an adoption application has been lodged, and an opportunity for him to register his consent or refusal of consent to the making of an adoption order, in respect of his child.

8.8.1.2

Consent of a Minor

The informed consent of an older child is a pre-condition for their adoption in virtually all states. The age limit varies from state to state but in most it is set at age 14 and in some it is required from 10 year olds. Many states make provision for a child’s consent to be dispensed with.

138 See,

further, Child Welfare Information Gateway, Consent to Adoption, Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau, 2013. 139 Ibid.

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8.8.2 Where Consent Is Not Available On the application coming before the court it will rule on whether or not the necessity for parental consent can be dispensed with, that good reason exists for so doing, and that this is compatible with the welfare interests of the child. In contested private adoptions, the rights of the parties under the Constitution will play a significant role in what will be more adversarial proceedings than is normally the case in other modern western nations and where the outcome is more likely to be an order other than adoption; guardianship being a probable option. Most states, in compliance with developing international law, require that the consent of an involved father be obtained or that grounds for dispensing with it be shown.140 The onus rests on such a father to first acquire locus standi if he is to be heard by the court.

8.8.2.1

Child Care Adoption: The Grounds

The Constitution, as interpreted by the USSC, requires a state to show compelling reason for infringing rights of family privacy and for over-riding parental autonomy as these fundamental liberties are protected by the 14th Amendment and its guarantee of due process.141 The court will require evidence that the grounds of child abuse or neglect, as set out within parameters established by the Adoption and Safe Families Act 1997, can be satisfied, and will accede to the application only if satisfied that this is compatible with the welfare interests of the child. It might be added, in the light of the Family First legislation, that the court will now probably require stronger evidence than formerly that such a total severance of parental ties, though justified on statutory grounds, would necessarily be wholly compliant with such a child’s welfare interests. The welfare test threshold has, arguably, been raised.

8.8.2.2

Contested Family Adoption: The Grounds

In the context of private adoptions, where an application by a parent or relative is contested by a birth parent who withholds consent, the court must proceed to a full hearing, receiving evidence from the parties and perhaps from expert witnesses, making findings of fact, ruling on the respective rights of the parties and ultimately making a determination on the merits of the case and in accordance with the welfare principle.

140 See,

for example, Caban v. Mohammed 441 US 380 (1979). v Nebraska 262 US 390 (1923), Stanley v Illinois 405 US 645 (1972) and Wisconsin v Yoder 406 US 205 (1972). 141 Meyer

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8.9 Thresholds for Exiting the Adoption Process The established priority given to ‘permanency planning’ in law and practice, together with the policy of regarding long-term foster care as undesirable and the absence of a range of alternative orders, have elevated adoption to become the judicial disposal option of choice where safe family reunification is demonstrably impractical.

8.9.1 The Welfare Interests of the Child In all states, the court, in response to proceedings commenced by prospective adopters, will determine whether or not an adoption order should be made. This decision rests on the principle, well established in this jurisdiction, that the adoption order must accord with the welfare interests of the child.142 In ascertaining whether the proposed adoption is in keeping with such welfare interests, the court will have the benefit of assessment reports from professional social workers responsible for monitoring the placement.

8.9.1.1

The Paramountcy Principle

While the welfare interests of the child are of critical importance in determining an adoption application, it cannot be said that this factor is given a paramount weighting in law. Essentially, the paramountcy principle would be incompatible with the constitutional rights of birth parents, as established by the U.S. Supreme Court in Santosky v. Kramer.143 This presumption of a right to custody can only be vitiated by voluntary relinquishment or by “clear and convincing” evidence that birth parents are unfit to care for their child. Cultural Compatibility The issue of cultural compatibility as a necessary component of welfare interests in the determination of an adoption application still has the capacity to be contentious. While it is statutorily barred from impeding transracial adoptions, and rarely arises in the context of ICA, it is very much a live issue in relation to the proportion of AfroAmerican children in foster care who are adopted by white Caucasians. It also arises in relation to children with Native American ancestry. The Indian Child Welfare Act 1978 requires that a court considering a fostering or adoption application in respect of such a child must give first priority to placement with a relative, then another member of their tribe or band and then with another Indian family. Only when those 142 See,

Curtis v. Curtis 71 Mass (5 Gy) 535, 537 (1856); cited by Katz, S., ‘Dual Systems of Adoption in the United States’, op. cit. at p. 283. 143 455 U.S. 745 (1982).

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options have been exhausted can consideration be given to third party unrelated nonIndian adopters. Although the ruling in Adoptive Couple v. Baby Girl 144 narrowed the constraints imposed by this cultural imperative it remains a potent caveat to welfare interests where children with even a tenuous genetic ancestry traceable to a federally registered Indian tribe are involved (see, further, Sect. 21.6.2.2).145

8.9.1.2

Voice of the Child

Where the child is of an age to give an opinion then, in many states, the court will consult with him or her as to their perception of what would be in their best interests and in some this is a statutory requirement. Whether or not articulated in statute law, the right of a ‘mature minor’ to assert their views, identify matters constituting their welfare interests and often to determine their future care arrangements is well established in the courts of the U.S.

8.9.2 Representing the Child’s Welfare Interests The ‘due process’ and ‘equal protection’ requirements, of the 5th and 14th Amendments respectively, necessitate legal representation for all parties to adoption proceedings. The arrangements for representing the interests of the parties are much the same in the U.S. as in the U.K. and the court will have the benefit of the same type of professional reports from the agencies involved.

8.10 The Outcome of the Adoption Process In the U.S. , as in other western common law jurisdictions, the granting of an absolute and permanent adoption order, with attendant if qualified rights of access to information and to possible ongoing support, is the most usual outcome of the adoption process.

8.10.1 Adoption Order This order will be for ‘full adoption’ which conforms to the traditional common law model and has much the same legal effects on the parties involved as in the U.K. 144 398

SC 625, 731 S. E. 2d 550. et al. v. Washburn, et al. No. 15-CV-1259, US Dist. Ct. for the Dist. of Arizona. See, further, at: https://www.bu.edu/bulawreview/files/2013/11/EDITORS-FOREWORD1.pdf).

145 Carter,

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391

and elsewhere (see, further, below). After the order is granted the adopters receive an official decree and a birth certificate with the adopters’ name listed as the parent.

8.10.1.1

Conditional Adoption Order

As Hollinger has pointed out146 : In a striking departure from the legal rules that prevailed in the mid-twentieth century, most states now expressly recognize that the existence of a private agreement for continued contact between a child’s adoptive and birth families is not incompatible with the granting of the full panoply of parental rights and obligations to adoptive parents. Moreover, many states have enacted laws that, under certain circumstances, permit the enforcement of post-adoption contact agreements.

Where all parties agree, including the child concerned (if aged 12 years or more), then an adoption order can be accompanied by an agreement for ongoing contact between adoptee and members of their birth family. The question of whether or not there will be such post-adoption contact is one usually resolved informally: state laws do not prohibit post-adoption contact; adopters may make their own decisions; and the birth parent/s may well have agreed such arrangements at time of relinquishment. In the latter instance, where a written contractual agreement has been drawn up between the parties, stating the type and frequency of the contact or communication, this can be legally enforced in many if not most states under statute law.

8.10.2 Alternative Orders Unlike the U.K., the alternatives to an adoption order are limited. In the U.S., in order of preference, the judicial options to secure permanency are either safe reunion with parent/s or family of origin, adoption or permanent legal guardianship.

8.10.2.1

Permanent Legal Guardianship Order

This is recommended in circumstances where reunification with parent/s or family of origin is not possible and adoption is inappropriate. The order does not terminate parental rights but instead transfers custodial rights to a named guardian leaving intact other legal rights such as those relating to inheritance. Permanent legal guardianship is the next preferred option to adoption, is intended for use by relatives of the child and is seen as particularly appropriate in relation to older children. Long-term foster care is the least preferred option. It has been noted that “there seems to have been a more recent shift in emphasis from regarding adoption as the only option for securing 146 Hollinger,

J.H., Adoption Law and Practice, op. cit.

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permanence to embracing guardianship by relatives and long-term foster carers”.147 This is borne out by the above-mentioned increase in annual guardianship orders (see, further, at 8.3.1.3).

8.10.2.2

Kafala

All developed western countries are struggling with the need to accommodate Islamic law and practices within their established legal systems. As the leading common law nations receive increasing numbers of migrants from devastated Islamic countries so also is the pressure increasing to bridge religious and cultural differences. The difference between kafala and adoption is one important aspect of such differences which has yet to be resolved and the failure to do so may well leave the human rights of many Muslim children unprotected.148 As of 2020, kafala is clearly not an option open to a U.S. court as an alternative to statutory adoption.

8.11 The Effect of an Adoption Order In this common law jurisdiction an adoption order has the legal effects traditionally associated with it (see, further, Sect. 3.9).

8.11.1 The Child On the granting of a domestic adoption order, the child concerned ceases to have any legal ties to their birth parents, assumes the name, residence and citizenship of the adopters and will have the same legal rights as a birth child including those of inheritance; although in a number of states, statute law still allows adopted children to inherit from their birth parents..149 Unlike other common law jurisdictions, however, the adoptee may be an adult.

147 See,

Selwyn, J. and Sturgess W., ‘Achieving Permanency Through Adoption: Following in US footsteps’, Adoption & Fostering, BAAF, London, vol. 26, no. 3, 2002 at p. 75. 148 See, further, the Muslim Women’s Shura Council, Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child, 2011, at: https://www.wisemuslimwomen.org/images/act ivism/Adoption_%28August_2011%29_Final.pdf. 149 Including, for example, Alaska, Arkansas, Connecticut, Montana, New Mexico, New York, North Dakota, Ohio and Wisconsin.

8.11 The Effect of an Adoption Order

8.11.1.1

393

Citizenship

Under the Child Citizenship Act 2000, which became effective on February 27, 2001, ICA adoptees automatically become US citizens when at least one parent is a US citizen, the child is under 18 years of age, has been the subject of a full and final adoption and has been admitted to the United States as an immigrant. There are citizenship issues for those ICA adoptees brought to the US before that date whose adopters failed to make specific application to US Citizenship and Immigration Service for that status to be granted to their adopted child.

8.11.2 The Birth Parent/s In this as in other common law jurisdictions, the making of an adoption order terminates all parental rights and responsibilities of birth parents.150 In some but not all states, birth parents may retain a right to continued anonymity.

8.11.3 The Adopters An adoption order permanently and exclusively vests all parental rights and responsibilities in respect of the child concerned in the adopters.

8.11.4 Dissolution of an Adoption Order In all states, the general rule is that an appeal cannot lie against the granting of an adoption order and it cannot be revoked at the behest of any of the parties concerned. It remains indissoluble other than on the usual grounds of illegality, mistake etc.

8.12 Post-adoption Support Services The involvement of an adoption agency at the placement stage ensures that it is thereafter available to offer support and that its records and counselling services can be made available at a later stage should the parties seek identifying information.

150 See,

(1993).

for example, Suster v. Arkansas Dep’t of Human Services, 314 Ark. 92, 858 S.W.2d 122

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8.12.1 Adoption Support Services Ongoing post-adoption support services have been available since the introduction of the 1997 Act and almost all child care adoptions receive financial subsidies. ICA and private domestic adoptions are now also more likely to receive support services on request: such as social work guidance, group training for parents and mentoring for children. Hollinger151 has drawn attention to the “considerable controversy among policymakers as to whether children adopted from other countries who have special needs because of illness, mental or physical disabilities, or ‘attachment disorders’152 should be able to qualify for the kinds of public or other financial assistance programs for which US-born adoptees are eligible”.153 While some states provide post-adoption support as a public service, there are many nonprofit and for-profit available, some of which offer specialized services.154 In addition, important tax credit benefits are available to intercountry adopters.155

8.13 Information Disclosure, Tracing and Re-unification Services The Uniform Adoption Act 1994 allows access to identifying information upon mutual consent, in cases of medical need, and requires non-identifying information to be released upon simple demand by adoptive parents or adult adoptees. This legislation provides a basic framework and states are free to add on additional procedures that would ensure more or easier access. Nearly a dozen states, at least prospectively, now allow access to birth certificates although movement in this direction seems to be slowing down. For most adoptions completed nowadays, identity is not an issue because everyone is identified.156

151 See,

Hollinger, J.H., Chapter 11, ‘Intercountry Adoption: Legal Requirements and Practical Considerations’, in Adoption Law and Practice, LexisNexis, 2010 (as updated). 152 Ibid., citing: Tepper, T.S., Parents Network for the Post-Institutionalized Child, www.hagueregs. org/History%20Stuff/April2Meeting.htm. (last modified Oct. 24, 2001). 153 Ibid., citing: https://www.childwelfare.gov/adoption/postadoption/; International AdoptionsFinancial Resources, at www.pueblo.gsa.gov/cic_text/children/adoption/interb.html. 154 See, further, Child Welfare Information Gateway, ‘Finding and Using Postadoption Services’, Department of Health and Human Services, Children’s Bureau, Washington, DC, U.S., 2012. 155 See, further, at: 17 https://www.irs.gov/Individuals/Adoption-Benefits-FAQs ; https://www.ado ption101.com/adoption_tax_credit.html. 156 The author acknowledges the advice of Joan Hollinger on this matter.

8.13 Information Disclosure, Tracing and Re-unification Services

395

8.13.1 Information Disclosure Currently, the move is towards greater transparency. In most cases the judiciary have ruled that an adoptee is entitled to access at least the name of his or her birth parents and may access related court records and documents with a court order on showing good cause (i.e. in New York, California, Michigan, Washington, Wyoming and New Jersey).157 Nevertheless, there is continued strong resistance to open access from organisations representing the interests of birth parents. This is to some extent another distinguishing feature of modern adoption practice in the U.S.158

8.13.2 Adoption Registers The State Department, in fulfilling its role as Central Authority, maintains a Federal Register of Intercountry Adoptions that tracks all adoptions involving a child’s immigration into, or emigration from, the United States, whether or not another Convention country is involved. The laws of individual states provide differently for the establishing and maintenance of adoption registers. They also differ considerably in determining whether a registrar may release identifying information to those who have been party to an adoption. Some states have an adoption registry, in which both the adopted adult and birthparent must register before information will be provided.

8.13.2.1

State Adoption Registries

In states that maintain Adoption Registries (e.g. Pennsylvania, Colorado, Florida and Rhode Island), adopted children may access the medical records of their birth parents. Others—such as those in Alabama, Illinois, Kansas, Maryland, Minnesota, Mississippi and Wyoming—allow adopters to request the registrar to contact birth parents when additional medical or health information is necessary.

8.13.2.2

State Mutual Consent Registries

Approximately 31 states maintain registers in which the adopted adult and the birth parent/s can register their mutual permission for the registrar to disclose identifying information. Most of these require the parties concerned to file affidavits consenting to the release of personal information. 157 See,

for example, In re J.N.H., 2009 Colo. App. LEXIS 569 (Colo. Ct. App. Apr. 16, 2009). currently facilitating access to records include the U.K., Sweden, The Netherlands, Germany, South Korea, Mexico, Argentina and Venezuela.

158 Nations

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8.13.3 Conditional Access Conditional access includes provision for disclosure vetoes, contact vetoes and other intermediary systems. Disclosure vetoes, by which an adoptee may access their original birth certificate only if their birth parent does not object, would seem to vest the latter with a privacy privilege.159 Traditionally, almost all states required an adopted person wishing to access their birth certificate to do so by way of court order, and in perhaps 25 states this remains the case. However, in many states the laws governing adoptee access to their birth certificates are becoming more relaxed. This can be attributed in part to judicial initiative in cases such as Doe v. Sundquist 160 and Does v. State of Oregon.161

8.13.4 Tracing and Re-unification Services Independent agencies providing services for all parties to an adoption—on a continuum from counselling, through information gathering and tracing to possible re-unification—are now well established in the U.S. with many operating on an interstate and for profit basis. Some states have a search and consent procedure called a ‘confidential intermediary system’ which allows an intermediary, certified by the court, to access sealed records for the purpose of identifying and locating members of their birth family in order to obtain their consent for contact. Other states use an affidavit system that allows birth family members to register either their consent or their veto to release of information and/or contact with an adoptee. The fact, however, that the law governing access to birth records is shrouded in controversy and varies from state to state results in an uneven patchwork of services.

8.13.4.1

The Adoption Agency

In most states adoption records were sealed after an adoption, which meant that if any of the parties concerned subsequently wished to access information they had to apply to court for permission to access adoption agency files. As mentioned above, some non-identifying information may now be made available from the agency that arranged the adoption.

159 Delaware

passed a disclosure veto law in 1998. F. Supp. 886, 893–94 (M.D. Tenn. 1996). 161 164 Or. App. 543, 993 P.2d 833, 834 (1999). 160 943

8.13 Information Disclosure, Tracing and Re-unification Services

8.13.4.2

397

The Role of Adoption Support Agencies

Some state agencies and a range of nonprofit and for-profit organisations provide services that include counselling and assistance in accessing information and adoption records. These services extend to search and reunion activities can be variously tailored to address issues arising for each of the parties involved. In this most market oriented of jurisdictions it is unsurprising that many agencies offer such services on a state, inter-state and on an international basis—at a price.

8.13.4.3

Agency Records

State laws govern the type of information required or permitted to be collected, by adoption agencies on adopted persons and their birth families.162 This information generally relates to medical and genetic history, family and social background, and mental health history. For the adopted child or youth, it may also include placement history and any history of abuse or neglect. It clearly differentiates between ‘identifying’ and ‘non-identifying’ information. The law specifies those variously permitted to access such information (usually with particular regard for accessing birth certificates), details the terms and processes for doing so, and states the minimum period for which adoption agency records must be archived. Most states now maintain registers in which the adopted adult and the birth parent/s can register their mutual permission for the registrar to disclose identifying information.

8.14 Conclusion Adoption as a legal process has been in existence for nearly twice as long in the U.S. as in the U.K. At first glance, there are strong similarities in the adoption experience of the two jurisdictions. Both are statutory processes, administered by the courts, providing much the same legal protection for the parties involved, regulating the same set of legal functions and concluding, in the main, with similar permanent and absolute adoption orders. They have both evolved in much the same way and at the same pace from the traditional ‘closed’ model to the present more ‘open’ form of adoption. In doing so, their practice has shared common contentious issues in relation to matters such as intercountry and transracial placements, post adoption allowances and information rights, special needs children, surrogacy, same sex adopters, the rights of birth fathers and the roles of step-fathers. Most obviously, led by the U.S.,

162 See,

further, Child Welfare Information Gateway, ‘Collection of Family Information About Adopted Persons and Their Birth Families’. at: https://www.childwelfare.gov/adoption/search/rec ords.cfm. Also, see, Welfare Information Gateway, ‘Access to Adoption Records’, U.S. Department of Health and Human Services, Children’s Bureau, Washington, DC, 2012.

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both have recently developed very similar policy and legislative initiatives in relation to the adoption of children from the public care and protection system. There are points of difference, however, of varying significance, which reveal distinctive and representative characteristics of the adoption process in the U.S. Perhaps most obviously the division of responsibility between the federal government and the fifty state jurisdictions, the private placement rights of parents, the role of commercial adoption agencies, the extent of intercountry adoption and the lack of open access to birth records together indicate the relative strength of legal protection given to the private rights of individuals to act independently. Where independent action violates public law, as in the context of child protection, then the rates of admission to public care and subsequent recourse to adoption demonstrate a much greater willingness to resort to coercive intervention in family affairs than is the case elsewhere. However, the recent increased reliance on kinship care and a higher tolerance for step-adoption would seem to indicate a greater readiness to use adoption and guardianship to facilitate permanency through family care than has been evident in the U.K. Adoption in the U.S. very much reflects the values of its social context. The Constitution, in particular, the 5th and 14th Amendments, provides a rights framework for the parties and bodies in the adoption process and generates a tendency towards adversarial proceedings.

Chapter 9

Canada

9.1 Introduction Adoption in Canada is mandated on a jurisdiction specific basis. There is, therefore, little consistency across the country as regards the related law and practice. In addition, the provinces, territories and the First Nations have each established their own separate administrative and procedural machinery for addressing issues relating to adoption and to the welfare of children more generally; machinery complicated by bilingualism and bijuralism. Moreover, as Québec is Canada’s only civil law jurisdiction, it tends to operate in relative isolation from all others; although since 1982 the Civil Code has governed adoption with much the same effect as does the common law in the rest of Canada. For such reasons it is dangerous to make generalisations and risky to draw comparisons in respect of adoption law and practice in the different Canadian jurisdictions. Just collating and comparing rates of provision for children in out-of-home care, including adoption, across provinces is problematic and it is almost impossible to identify nationwide trends with any confidence.1 That said, this unfolds in much the same manner as the other jurisdiction specific chapters; although largely sidestepping customary adoption as practised by the First Nations (see, Sect. 21.3). Beginning with the social background to adoption, it presents statistical data outlining the scope and pace of change to relevant areas of social context, considers the resulting impact on adoption trends and notes the principal emerging characteristics of contemporary adoption in Canada. This is followed by an overview of adoption law and policy, insofar as is practicable in a nation where both strands are independently defined and administered by each province

1 The resulting difficulties have been well documented, see: Hepworth, H.P., Foster Care and Adop-

tion in Canada, Ottawa, Council on Social Development, 1980; and the Dave Thomas Foundation for Adoption Canada, ‘Canadian Foster Care Adoption Attitudes Survey’, 2014. Also note the concern expressed by the UN Committee on the Rights of the Child in October 2012 when it drew attention to the continuing difficulties relating to matters such as ‘legislation, coordination, data collection … adoption’ (at para 8). © Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_9

399

400

9 Canada

and territory. It then identifies and explains the regulatory components of the adoption process, including the status and remit of adoption agencies and other mediating bodies, together with the jurisdiction of the court and the role of the Registrar General. The thresholds for entering the adoption process are surveyed and discussed in relation to each of the parties involved but with particular attention given to factors such as the rights of the birth parents, the significance of attempted parental rehabilitation, and the eligibility/suitability of prospective adopters. The conditions for placing a child, which triggers the process, are identified and the culmination of the process in a judicial hearing, where the consent of the parties plays a crucial role, is examined. The thresholds for exiting the process are then reviewed with a special focus on the part played by the welfare interests of the child as the paramount determinant. The range of possible outcomes are specified and the effects of an adoption order on each of the parties are assessed. The chapter closes with a brief consideration of post-adoption support services and a lengthier analysis of information disclosure rights, vetoes on accessing information, tracing and reunion services etc.

9.2 Background Adoption, according to the Canadian Encyclopedia, was first introduced in New Brunswick in 1878 in order to save the babies of unmarried mothers from the stigma of ‘illegitimacy’ by placing them with married couples.2 It has long since become established throughout Canada, broadening in legal usage as it adapted to changes affecting the family. Most recently, the nature of such changes have been explained by Statistics Canada as follows3 : During the 50-year period from 1961 to 2011 which corresponded with the censuses of population, considerable social and economic changes occurred in Canada that influenced evolving family dynamics. The early 1960s was near the end of the baby-boom period (1946 to 1965), when many people married at a fairly young age and had relatively large families. By the end of the 1960s, events such as the legalization of the birth control pill, the introduction of ’no fault’ divorce, as well as the growing participation of women in higher education and in the paid labour force may have contributed to delayed family formation, smaller family size and an increased diversity of family structures.

2 See,

further, at: https://www.thecanadianencyclopedia.ca/en/article/adoption/.

3 Statistics Canada, ‘Fifty years of families in Canada: 1961 to 2011’, at: https://www12.statcan.ca/

census-recensement/2011/as-sa/98-312-x/98-312-x2011003_1-eng.cfm.

9.2 Background

401

9.2.1 The Social Context Giving Rise to Adoption Bala and Ashbourne provide a useful summary of more specific and directly relevant changes in social context4 : Adoption in Canada has changed significantly over the past half-century. With the advent of improved birth control and relatively easy access to abortion, as well as the provision of social assistance to the mothers of children born out of wedlock, since about 1970 there have been fewer healthy newborn infants available for adoption in Canada than parents willing to adopt them. This has given rise to changes in adoption patterns in Canada, including the introduction of international adoption.

9.2.1.1

First Nations and Adoption

One aspect of the change that has affected the role of adoption in Canada is its use in relation to First Nations children. During the period 1960 to the mid-1980s, in keeping with similar cultural assimilation programmes in the US and Australia, many thousands of indigenous children—perhaps 20,000—were forcibly separated from their birth families by government social workers and religious organisations, and placed for adoption with non-indigenous families in Canada and elsewhere; a practice that continued until condemned by a government inquiry in the late 1980s.5 The relative merits of preserving the bonds of culture and family attachments of such children when weighed against the prospective welfare benefits provided by non-indigenous adopters was considered in the seminal case Racine v. Woods6 (see, further, Sect. 21.3.1). The reverberations of that case and the scandal of the ‘sixties scoop’ continue to overshadow relationships between government authorities and First Nations and to compromise the contemporary use of adoption and other child care services in an indigenous context. The 2011 National Household Survey revealed that although First Nations children comprised only 7% of all Canadian children they constituted nearly half of the foster care population; in 2016, there were 4,300 indigenous children under the age of four in foster care across Canada7 (see, further, Sect. 21.3.2.2).

4 See,

Bala, N. and Ashbourne, C. , ‘The Widening Concept of Parent in Canada: Step-Parents, Same-Sex Partners, & Parents by ART’, in Journal of Gender, Social Policy & the Law, Vol 20, Issue 3, 2012, at p. 11. 5 See, Nichols, R. L., ‘From the Sixties Scoop to Baby Veronica: Transracial Adoption of Indigenous Children in the USA and Canada’, in M. Shackleton (ed.), International Adoption in North American Literature and Culture: Transnational, Transracial, and Transcultural Narratives, Helsinki, Palgrave Macmillan, (2017). 6 [1983] 2 S.C.R. 173. 7 See, further, at: https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016020/ 98-200-x2016020-eng.cfm.

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9.2.1.2

9 Canada

Marriage and Family Breakdown

Family breakdown can be a precursor to breakdown in parental care which in turn can lead to children being admitted to the public child care system. The Canadian marital family would seem to be more fragile than formerly. The marriage rate in Canada is declining, divorce is increasing, parents are no longer necessarily heterosexual, families are often comprised of parents and children who are not necessarily genetically related and overall the traditional family unit in Canada is undergoing profound change. Since the introduction of divorce in 1968 followed by a relaxing of the necessary grounds in the Divorce Act 1985, the annual divorce rate in Canada has steadily increased. In the 10-year period from 2001 to 2011, married couples dropped from 70.5% to 67.0% of all census families and then down to 65.8% by 2016 according to Statistics Canada. Of considerable significance is the rise in the number of those who choose to remain unmarried. In 1981 unmarried couples accounted for 6.3 per cent of all families in Canada but by 2016 they accounted for 17.8 per cent of all Canadian families.8 Between 2001 and 2016, such couples rose 51.4 per cent, more than five times the increase for married couples over the same period. If, as stated by the Canadian Encyclopedia, commonlaw relationships “are generally more short-lived and dissolve more frequently than marriages”, then their proportionate increase may well correlate with an increase in breakdowns of parental care leading to an increased risk of children coming into the public child care system with some possibly becoming wards of the state and being available for adoption. Moreover, the number of same sex marriages is rising. The 2006 census, a year after the legalisation of same sex marriage, showed there were 45,350 declared samesex couples in the country, of whom 16.5 per cent were married. By the 2016 census, that number had tripled to more than 72,880 declared same-sex couples of whom 33.4 per cent were married, approximately 12% with children.9 Needless, to say, same sex marriages generate their own impact upon the annual rate of adoption applications. Significant also is the steady rise in the divorce rate. Following the first major change in the divorce law in 1968, there was a sharp increase (from 54.8 divorces per 100,000 of the population in 1968, to 124.2 in 1969). Since that time the increase has continued at an accelerated pace: by 2017, an estimated 9% of Canadians were divorced or separated, up from 8% in 1997.10 Remarriage is also increasing. It is estimated that11 : In the 1990s, approximately one-third of all Canadian marriages involved at least one partner who was previously married, and by far the largest component came from divorced rather than widowed people. By the turn of the millennium, about 10 per cent of Canadians had married twice and approximately 1 per cent had married more than twice. 8 See,

https://www150.statcan.gc.ca/n1/pub/11-627-m/11-627-m2017024-eng.htm. The Canadian Encyclopedia at: https://www.thecanadianencyclopedia.ca/en/article/mar riage-and-divorce/. 10 See, https://vanierinstitute.ca/facts-and-stats-divorce-separation-and-uncoupling-in-canada/. 11 See, The Canadian Encycloped, op cit. 9 See,

9.2 Background

403

The same source rightly points out that “blended and stepfamilies have changed the composition of Canadian families”. The 2016 Census revealed that of the 5.8 million children aged 0 to 14 in Canada living in private households: 30.3% were living in a lone-parent family, in a stepfamily, or in a family without their parents but with grandparents, with other relatives or as foster children. For decades, lone-parent families have accounted for a significant and increasing share of families with children: increasing from 17.8% to 19.2% over the period 2001 to 2016. In 2016, 567,270 children, or 9.8% of all children aged 0 to 14, were living in a stepfamily a similar percentage to that recorded in 2011 (10.0%). Consequently, contemporary family life in Canada is more unstable than previously: more fluid, transient and prone to serial parenting arrangements. Adoption is now more likely to be used as a legal fix to bind re-formed families or as the provident means of providing children for same sex family units.

9.2.1.3

Unmarried Mothers

In Canada, as in countries such as Ireland, the prevailing socio-religious norms during the early to mid decades of the twentieth century were such that many unmarried mothers became victims of exploitive ‘nursing homes’ where their babies all too often suffered abnormally high death rates or were illegally sold for private adoption.12 Evidence testifying to the extent and traumatic effect of the pressures on unmarried women during this period was received by the Standing Senate Committee on Social Affairs and Technology in March 2018.13 The later decades of the twentieth century saw considerable changes to the socio-economic environment which empowered women in general, eroded the stigma attached to unmarried motherhood, and enabled single parent households achieve financial independence and to grow in number. The rate of births to unmarried women increased from 12.8% of all live births in 1980 to 24.4% in 1990, reaching 29.2% in 2018.14 Relinquishing a child for adoption ceased to be the forced option for an unmarried mother as stigma faded, financial independence became more feasible and contraceptives improved and were more widely used. Whereas in 1974, young women aged between 15 and 19 gave birth to about 55 babies per 1000 of the population; by 1997, the number dropped to just over 40 per 1,000 and has continued to fall. In fact close to 1 in 5 (19.2%) of children aged 14 and under lived with lone parents in 2016, up slightly from 17.8% in 2001; 81.3% lived with female lone parents. Paradoxically, instead of adoption continuing its traditional role as a legal mechanism for relieving an unmarried mother from care responsibility for her child, it is has instead become the chosen option for unmarried persons raising children.

12 See,

for example, Cahill, B.L., The Butterbox Babies, 1992. ‘The Shame is Ours: Forced Adoptions of the Babies of Unmarried Mothers in Post-War Canada’, at: https://sencanada.ca/en/info-page/parl-42-1/soci-adoption-mandate/. 14 See, https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=1310041901. 13 See,

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The rising number of adoption orders granted to single persons and partners in same sex relationships would seem to be mainly in respect of female applicants.

9.2.1.4

Abortion

Abortion services have been legally available, albeit initially in restricted circumstances, since 1969. In 1988, the Supreme Court of Canada in R. v. Morgentaler 15 ruled that abortion law was unconstitutional as it violated s 7 of the Charter of Rights and Freedoms because it infringed upon a woman’s right to “life, liberty and security of person.” As Dickson CJ then explained: Forcing a woman, by threat of criminal sanction to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of her security of the person.

Thereafter, Canada became one of a small number of countries without a law restricting abortion. It is now regulated by the Canada Health Act and treated like any other medical procedure in accordance with provincial and medical regulations; though there have been many restrictions at the provincial level, particularly in the Maritimes.16 The annual rates show a steady decline from 108,844 in 2011, down to 85,195 in 2018, bringing the total to more than three million since abortion was decriminalized in 1969.17 As elsewhere, abortion rates together with improved contraceptives directly correlate with falling third party domestic adoptions.

9.2.1.5

Assisted Reproduction Services

Canada experienced a steady decline in the total fertility rate after the post-war baby boom period: dropping by more than 50 per cent in all age categories between 1960 and 1980; by 2019 it was estimated that some 16% of Canadians experienced infertility, double the rate in the 1980s.18 The consequent recourse to assisted reproduction services has accelerated considerably. In 2012, for example, it was estimated that over 17,000 women in Canada resorted to such services.19 As of 2017, an estimated 1 to

15 [1988]

1 SCR 30. Johnstone, R., ‘Explaining Abortion Policy Developments in New Brunswick and Prince Edward Island’, Journal of Canadian Studies 52 (3) (2018), pp. 765–784. 17 See, further, at: https://abortionincanada.ca/stats/annual-abortion-rates/. Statistics Canada show a recorded total of 2,838,328 abortions between 1974 and 2006. 18 See, further, at: https://www.canada.ca/en/public-health/services/fertility/fertility.html. 19 See, further, at: https://www.torontolife.com/informer/features/2014/02/03/baby-making-bus iness-surrogacy-market-toronto/?page=all#tlb_multipage_anchor_1. 16 See,

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2% of all live births resulted from IVF and related treatments, but the continued lack of public funding is a constraint. Surrogacy Since the introduction of the Assisted Human Reproduction Act 2004, altruistic surrogacy has been legal in Canada20 but not in Quebec which does not recognize surrogacy arrangements, whether commercial or altruistic.21 Some of the related legal ramifications were examined in the 2009 Ontario case of C (M.A.) v. K. (M.)22 when Cohen J denied an adoption application by a lesbian in respect of her partner’s birth child. Finding that the sperm donor father had sustained a close and caring relationship with the 6 year old child since her birth, and that the applicant had in place a written agreement addressing the parties respective roles and rights, Cohen J ruled that the effect of an adoption order would be contrary to the child’s best interests as it would undermine her “sense of place in the world, her confidence in her experience of the world and her understanding of who her family is”.23 Arguably, a rationale that militates against adoption per se rather than that of this particular child. The Uniform Child Status Act 2010 now defines a ‘surrogate’ as a person who gives birth to a child as a result of assisted reproduction if, at the time of the child’s conception, she intended to relinquish that child to: (a) the person whose human reproductive material was used in the assisted reproduction or whose human reproductive material was used to create the embryo used in the assisted reproduction; or (b) the person referred to in a) and the person married to or in a common-law partnership with that person. For Canadians utilizing overseas commercial surrogacy services the 2010 Act is significant as – where there is no genetic link between the commissioning parents and the child, or where no adoption order has been granted to them in the child’s country of origin - it may obstruct the child’s entry into Canada.24 While the 2004 Act prohibits the payment of a surrogate mother for her services, reimbursement for reasonable expenses incurred is permissible. In December 2010, the federal Supreme Court in Re Assisted Human Reproduction Act 25 ruled that provinces have exclusive authority to regulate fertility clinics, license doctors, reimburse sperm and egg donors for their expenses, and decide how many embryos to implant. The federal government, however, still has power to ban paid surrogacy, the use of underage donors and the commercial trade of eggs, sperm and embryos.

20 See, further, Snow, D., Assisted Reproduction Policy in Canada: Framing, Federalism and Failure University of Toronto Press, (2018). 21 See, In the Matter of X (Adoption) 091, 2009 QCCQ 628, [2009] RJQ 445 (Can. Que. Youth Ct.). 22 M.A.C. v. M.K. 2009 ONCJ 18 (Can. Ont. Ct. J.). A full account of this case can be found in Bala, N. and Ashbourne, C. , ‘The Widening Concept of Parent in Canada’ op cit, at pp. 13–14. 23 Ibid. at para 64. 24 See, further, at: https://www.cic.gc.ca/English/resources/manuals/bulletins/2012/ob381.asp. 25 2010 SCC 61, [2010] 3 S.C.R. 457. Also, see, Fraess v. Alberta (Minister of Justice and Attorney General), 2005 ABQB 889 and DWH v. DJR, 2011 ABQB 119 at paras 15–17.

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To establish and protect legal parentage in respect of the resulting child, it is not unusual for the commissioning parent/s to initiate adoption proceedings, particularly where the latter are a same sex couple. In such a case, when neither adoption nor any other legal proceedings have secured family boundaries and relationships breakdown then, as in the Alberta case of H. (D.W.) v. R. (D.J.),26 the court will need to examine the history of care relationships and determine issues of custody and access on the basis of whether the evidence demonstrates that a non-biological parent has “stood in the place of a parent”. Further, when a child is old enough to do so he or she may wish to seek identifying information equivalent to that legally available to an adopted person. In Pratten v. Attorney General (BC),27 such a challenge to the right of sperm donor anonymity was unsuccessful. However, as Lori Chambers comments “While Pratten is still the leading decision in this area, access to DNA services is rendering the law unenforceable”.28

9.2.1.6

Increase of Children in Public Care

The Canadian child care population is relatively high.29 Entry into public care occurs when “the children concerned are receiving a level of parenting care that is below the minimum standard tolerated in our community”.30 In 2013, there were an estimated 62,428 children in out-of-home care across Canada31 and “the number of children in care in Canada is increasing every year”.32 This would seem to be borne out by reports from the provinces and territories. For example, in 2010 a Saskatchewan report noted ‘like a number of jurisdictions in Canada, the Saskatchewan child welfare system has seen an explosion in the number of children and youth entering out of home care in the past decade’.33 The U.N. Committee on the Rights of the Child has 26 2007,

ABCA 57 (Can. Alta. C.A.). BCCA 480, reversing 2011 BCSC 656. 28 Note to author (21.04.20). 29 In 2001, 1.1 percent of Canadian children were in care, compared with: 0.07 percent in Germany (in 2004); 0.17 percent in Japan (in 2005); 0.55 percent in England (in 2005); 0.66 percent in the United States (in 2005), and 1.2 percent in France (in 2003). See, further, Thoburn J., ‘Globalisation and child welfare: Some lessons from a cross-national study of children in out-of-home care’, Vol. 228, School of Social Work and Psychosocial Studies, University of East Anglia, 2007. 30 See, Sask. Minister of Social Services v. E.(S.) [1992] 5 WWR 289 (Sask. QB). 31 Jones, A., Sinha, V. and Trocmé, Children And Youth In Out-Of-Home Care In The Canadian Provinces, Canadian CW Research, (2015). 32 See, Farris-Manning, C. and Zandstra, M., ‘Children in Care in Canada: A summary of Current Issues and Trends with Recommendations for Future Research’, Child Welfare League of Canada, 2000, at: https://www.nationalchildrensalliance.com/nca/pubs/2003/Children_in_Care_M arch_2003.pdf. 33 See, Saskatchewan Child Welfare Review Panel Report, ‘For the Good of our Children and Youth: A New Vision, a New Direction’, at pp. 15–16. See, further, at: https://saskchildwelfarereview.ca/ CWR-panel-report.pdf. 27 2012

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been “deeply concerned at the high number of children in alternative care and at the frequent removal of children from their families as a first resort in cases of neglect or financial hardship”.34 However, as no agency has ever regularly conducted an annual nationwide count of children in the care system, it is difficult to be certain of statistical trends,35 but what is certain is that Indigenous children are disproportionately represented (see, further, Sect. 21.3.2.2).36 Foster Care In 2016 Statistics Canada recorded that among children in private households aged 14 and under, 28,030 were reported as foster children, down from 29,590 in 2011. In 2011, over half (56.9%) of the households with at least one foster child aged 14 and under were comprised of married couples, while 12.4% of these households were common-law couples and 14.0% were lone-parent families. Wards of the State The term ‘wards of the state’ refers to those children in the public care system for whom all parental rights and responsibilities have been vested in the state. Mostly they are older children, aged 5 years or more, or have other ‘special needs’ such as belonging to sibling groups, suffering from health issues or having behavioural or learning difficulties. It has been estimated that more than 20,000 children across Canada are permanent wards of the state, of which only about 1,200 annually become adopted.37 Foster care, which was intended to be a temporary solution for children in care, has instead become the ultimate destination for thousands of wards—the vast majority of whom will not be reunited with their birth families—many being shuttled through a series of foster homes. It would seem that once a wardship order is made, there is no obligation to prove the child is adoptable nor to identify a prospective adoptive family.38 In many cases court ordered access for birth family members is perceived as presenting an insurmountable legal obstacle to pursuing adoption. Residential Care The enforced use of residential schools for children from the First Nations, Metis and Inuit communities in the period 1880–1960 has tainted the contemporary role of residential care for children and young people in Canada (see, also, Sect. 21.3.1.1). Currently, this form of provision includes out-of-home placement in a facility such as 34 See, the UN Committee on the Rights of the Child, 61st session, C/CAN/CO/3-4, October 2012, at para 55. 35 In fact Mulcahy and Trocmé conducted such a survey and estimated that in 2007 there were 67,000 children in out-ofhome care across Canada. See, further, Mulcahy, M. and Trocmé, N., Children and Youth in Out-of-Home Care in Canada, McGill University, Centre for Research on Children and Families, 2010. 36 See, further, at: https://fncaringsociety.com/. 37 See, further, at: https://www.cyc-net.org/profession/readarounds/ra-papp.html. 38 See, CAS Niagara v. J.C. 2007 Canlii 8919 Div.Ct.

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a group home or treatment centre. It is provided for emotionally disturbed children, young offenders and others who are experiencing problems, including behavioural and adjustment, and cannot function in a family setting. The National Children’s Alliance of Canada reported a considerable increase in recourse to such facilities at the turn of the century due to overcrowded foster care placements.39 Family or Community Given the complexities of Canadian data collation it is impossible to estimate with any accuracy the numbers of children in kinship foster placements but there are some indicators that they are on the increase. For example, census figures revealed a 26% increase in children being cared for by grandparents between 2001 and 2011—from 35,090 to 44,095. In addition, the number of Canadian children placed in informal kinship care following a maltreatment investigation increased by over 50% between 1998 and 2008—from 0.93 per 1,000 children to 1.45.40

9.2.2 Resulting Trends in Types of Adoption As elsewhere, fewer babies and young children are becoming available for adoption in Canada. Domestic adoption is now largely by step-parents and from the care system: the children from both sources are necessarily older, usually not younger than 3–5. Intercountry adoption has focused on younger children. In 2007, for example, twothirds were under two years old. Twice as many girls as boys were then adopted: 1,140 girls and 573 boys; due mainly to the high proportion of girls being adopted from China. However, children from this source are now also likely to be not less than 3–5 and most probably with some degree of health or social care needs. While it is not possible to establish accurate aggregated numbers of adoptions nationwide, let alone differentiate the related trends, the following account from 2007 may be broadly representative41 : Each year for the past five years, approximately 1,600 children were adopted into families in Ontario through one of these three services (public child care, intercountry and private domestic). The largest number—more than 800 a year—are public adoptions, followed by about 650 intercountry adoptions and 150 private domestic adoptions.

39 See,

for example, Saskatchewan Children’s Advocate, ‘A Breach of Trust: An Investigation into Foster Care Overcrowding in the Saskatoon Service Centre’, 2009. 40 Public Health Agency of Canada. (2010). Canadian incidence study of reported child abuse and neglect 2008: Major findings. Ottawa, ON: Public Health Agency of Canada. 41 See, Forever Families: Ontario’s Adoption System, at: https://www.children.gov.on.ca/htdocs/ English/infertility/report/foreverfamilies.aspx.

9.2 Background

9.2.2.1

409

Third Party Adoptions

In Canada, adoption in its traditional form—by those unrelated to the adoptee—is increasing as a proportion of annual total adoptions. Domestic The findings of the last nationwide adoption survey were published in 1993.42 This reported that the number of domestic adoptions had dropped by almost 50% between 1981 and 1990, from 5,376 to 2836. The biggest drop was in the number adoptions of children from the care system. During that time, private adoptions remained steady at about 1,000 a year but increased from 17 to 40% of total adoptions. By 2001, of the estimated 4118 adoptions, 2243 or 54% were domestic.43 In recent years, domestic adoptions have steadily grown in number largely due to more assertive policies to increase adoptions from care. Child Care As with established policy in the U.K. and the U.S., the provinces and territories of Canada broadly share the same approach towards children in the care system: where feasible such children should be given the opportunity to enjoy family life secured through permanence by adoption; even if this has to be pursued on a non-consensual basis by legally dispensing with the need for parental consent. A child, removed from birth family because of abuse, neglect or abandonment, is first placed in foster care or a group home, under the authority of a care order, until social workers can either help the birth family to the point where reunification is achieved or it becomes clear that this is not possible and court proceedings are duly initiated to terminate parental rights. The court may then make the child a Crown ward on the grounds that reunification with the birth family has proven unsuccessful or inappropriate. When a child has Crown ward status, the Crown (Province) has the rights and responsibilities of a parent and in that capacity can declare the child eligible for adoption; but the process can take months or years. According to the May 2002 ‘Report Card on Adoption’ by the Adoption Council of Canada, there were then over 66,000 Canadian children in foster care (93 per 10,000 aged 0–18) of whom about 22,000 were permanent wards, but less than 1,700 were adopted annually across the country—2.5% less than in U.K. and U.S.44 By July 2014, there were approximately 30,000 children and young persons with the legal status of Crown wards in foster care who were thus become available for adoption.45 When a court grants an order for Crown wardship this wholly terminates parental rights and vests all parental responsibilities fully and exclusively in the state: wardship, being an inherent jurisdiction of the Crown, is simply the most powerful order 42 See, 43 See,

Sobol, M., and Daly, K., Adoption in Canada, 1994. UN Dept of Economic and Social Affairs, Child Adoption: Trends and Policies, 2009, at

p. 69. 44 See, Ross, E., ‘Adoption Issues and Ideas’ in Transitions,Vanier Institute of the Family, Vol 31, Issue 2, 2001. 45 See, Eggertson, L., president of the Adoption Council of Canada, at: https://canadaheartgallery.ca.

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available for children; as has been said “the law knows no greater form of protection for a child than wardship”.46 Such an order will be made only on the basis of compelling evidence and only after a careful examination of possible alternative remedies.47 The legal hallmark of wardship has long been held to be that all decisions relating to the upbringing of a ward are governed by the welfare principle, or, as declared by Viscount Cave in Ward v. Laverty48 : It is the welfare of the children, which, according to rules which are now well accepted, forms the paramount consideration in these cases.

The ‘paramountcy principle’ of wardship, directing that absolute priority be given to furthering the welfare interests of a ward, was greatly valued by the U.K. judiciary and child care social workers in the 1970s and 80s because of the extra leverage conferred by its discretionary powers—then unavailable in statute law—to act in a child’s best interests: powers that were often used to terminate parental access where this was judged to be detrimental to the ward and to effect non-consensual adoptions. Paradoxically, wardship in a Canadian context would seem more likely to obstruct than facilitate adoptions from care. This is in large part due to a judicial practice of issuing a parental access order in respect of a ward; though this is only permissible where there are grounds for believing that a meaningful relationship exists between parent and child that is beneficial to the latter. As Justice Perkins emphasised, in CAS of Toronto v. T.L.,49 the test should be: If a Crown wardship order is to be made, and a party has sought an access order, determine whether the relationship between the child and the person who would have access is both meaningful and beneficial to the child. (Section 59(2.1)(a)). If not both meaningful and beneficial, dismiss the claim for access. If so, go to the next step. Determine whether the access would impair the child’s future opportunities for adoption. (Section 59(2.1)(b)). If so, dismiss the claim for access. If not, go to the next step. Determine whether an access order is in the child’s best interests. If not, dismiss the claim for access. If so, make an access order containing the terms and conditions that are in the child’s best interests. (Section 58.)

The existence of an access order is viewed as compromising the ward’s availability for adoption. This interpretation would seem flawed on two counts: firstly, the singular feature of wardship is the absolute power and discretion thereby vested, which can be utilized to reduce or terminate parental access that is not welfare compatible; and, secondly, the principle of ‘openness’ suggests that an ongoing level of parental contact is now a requirement for a successful adoption rather than a counter-indicator. The 2014 Canadian Foster Care Adoption Attitudes Survey noted that on average the age of an adoptable child in foster care was about 9–10 years and that of the 46 As

declared in the opening sentence of Lowe, N. and White, R., Wards of Court, London, Butterworths, 1979. 47 See, CAS Hamilton v. M. 2003 O.J. No. 1274 (UFC). 48 [1925] AC 101. 49 [2010] O.J. No. 942.

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total foster care population approximately 17–20% remain in care until they age out at 18.50 The survey drew attention to a serious obstacle to foster care adoption in Canada51 : There is no Canada-wide system that tracks the number of children who are waiting to be adopted from foster care. Data is available province by province, but is not systematically collected or ranked for the country as a whole.

It should, perhaps, be added that this problem is often replicated within provinces, territories and the First Nations with seemingly little co-ordination of policy, data and professional resources within those jurisdictions let alone between them. Adoption of Children With Special Needs Canadian research, as pointed out by the National Children’s Alliance of Canada, cites “prevalence estimates of emotional and behavioural problems of children in foster care rising from 30–40% in the 1970s–80s, to 48–80% in the mid-1990s”.52 In 2003 the Canadian Association of Community Living estimated that 60% of children in care had some form of disability: invariably, therefore, those adopting from the care system are more likely than not to receive a child with some level of special needs. However, for prospective adopters there is often a financial disincentive to be overcome: although foster carers of such children receive substantial additional financial support this may be lost if the child is adopted. Ironically, adoption may not be in the best interests of the child if this results in a loss of critical services and supports. It is probable that this invidious equation militates against equity of access to the adoption process for children in care with special needs. Intercountry As a receiving country, Canada’s experience dates back to the nineteenth century when, as a former colony of the British empire, it benefitted from the tens of thousands of children shipped from England to be adopted or otherwise taken in by Canadian families. It has been estimated that approximately 100,000 such children aged 5 years and older were received in Canada between 1826 and 1939.53 Since then there has always been a degree of intercountry adoption—if only as a consequence of settled immigrants adopting related children from their country of origin. In recent years Canada has become a more organised receiving nation. It experienced a dip in annual adoptions: from a high of 2222 in 1998; to 2180 in 2003 and 50 See, the Dave Thomas Foundation for Adoption Canada, ‘Canadian Foster Care Adoption Attitudes Survey’, 2014, at: https://davethomasfoundation.ca/wp-content/uploads/2013/07/DTFA-Har risPoll-REPORT-CAN_Final-web.pdf. 51 Ibid. at p. 36. 52 See, Farris-Manning, C. and Zandstra, M., ‘Children in Care in Canada’, op cit at p. 3 citing Stein et al, ‘The Mental Health of Children in Foster Care: a Comparison with Community and Clinical Samples’, in Canadian Journal of Psychiatry, 41, 1996, at pp. 385–6. 53 See, for example, Kohli, M.P., The Golden Bridge: Young Immigrants to Canada, 1833-1939, Natural Heritage Press, Toronto, 2003. Also, see, Parker, R., Uprooted: The Shipment of Poor Children to Canada, 1867-1919, The Policy Press, Bristol, 2008.

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1525 in 2006; followed by a gradual climb to 2122 in 2009. In 2017 there were only 712 international adoptions, down from 903 in 2015 and from 1366 in 2012. China has for some years been the primary source of children: 771, or 41.5% of all adoptions, in 2002; 1871 in 2005; 472 in 2010, up from 451 in 2009 and from 431 in 2008. Research reports on adoption outcomes for these children have been encouraging.54 Natural disasters have also impacted upon established flow patterns: in 2010, for example, Canadians adopted 172 Haitian children following the earthquake of 12th January 2010 in that country. Canada has an established track record of accepting children from non-Hague compliant countries (e.g. Haiti, and China did not ratify Hague until 2005). However, in some or all provinces, adoptions are now suspended from Cambodia, Georgia, Guatemala, Liberia, Nepal and Haiti for various reasons, but it was the decision in July 2013 to abruptly end those from Pakistan that has generated most controversy. A spokesperson for Citizenship and Immigration Canada explained that the adoptions were stopped because of perceived difficulties in transforming the guardianship certificates issued by a Pakistani court into the adoption orders required by a Canadian court if Pakistani children were to be adopted in accordance with the requirements of Canadian adoption law and citizenship55 : The legal and procedural requirements to obtain a guardianship certificate under Pakistan’s Guardians and Wards Act do not allow for subsequent adoption in the guardian’s country of residence …Pakistan applies the Islamic system of kafala, or guardianship, which neither terminates the birth parent-child relationship nor grants full parental rights to the new guardian. This means that there are further legal incompatibilities in accepting Canadian applications for adoption.

Difficulties with Immigration Canada have been experienced by many Canadian couples who, having successfully completed adoption procedures in a ‘sending’ country, can find themselves facing months or even years of bureucratic negotiations before bringing back—or returning to the orphanage—the child they thought they had successfully adopted.56 Arguably, in the absence of any hard evidence that such an adoption is contrary to Canadian public policy then any such intercountry adoption, certified in accordance with the Hague Adoption Convention, must be recognised.57 Prospective adopters in Canada have also been seriously impacted by the decision of some sending countries to abruptly terminate long-standing bilateral adoption arrangements. The Russian government enacted legislation in July 2013 prohibiting 54 See, for example: Cohen, N.J., Loikasek, M., Zadeh, Z.Y., Pugliese,M., & Kiefer, H., ‘Children adopted from China: a prospective study of their growth and development’, Journal of Child Psychology and Psychiatry, Vol 49 Issue 4, 2008, pp. 458-468; and Rettig, M.A. and McCarthyRettig, K., (2006) ‘A survey of the health, sleep, and development of children adopted from China’, Health & Social Work, Vol 31 Issue 3, 2006, pp. 201–207. 55 See, Johnson, G., on behalf of Citizenship and Immigration Canada. See, further, at: https://www. thestar.com/news/canada/2013/08/05/canadas_ban_on_pakistani_adoptions_baffles_parents_cle rics.html. 56 See, further, at: https://globalnews.ca/news/4641266/ontario-couple-return-daughter-to-nigerianorphanage/. 57 See, Hague Convention, Articles 23–25.

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the adoption of children by same-sex couples and single people from countries that recognize same-sex marriage, regardless of the actual sexual orientation of applicants, has been a particularly serious setback. Although not a sending country, every year there are a few adoptions of Canadian children by overseas adopters. In 2013, for example, 4 children were adopted by U.S. citizens. Reverse traffic, however, is considerably heavier with several hundred largely black or mixed race US children being adopted by Canadians. Transracial The Canadian experience of transracial adoption is conflicted. As in Australia, the assimilation policy that saw generations of aboriginal children removed from their families of origin to residential schools, where they were rigorously taught to abandon their First Nations culture in favour of westernized cultural norms, has left a legacy of recrimination that casts doubt on the wisdom of contemporary transracial adoption placements. Nonetheless, many First Nations children were adopted—and most often by white Caucasian families - in the 1950s and 1960s (known as ‘the 60s scoop’58 ) following the initiative of Margaret Edgar who launched the Open Door Society in 1959. Since then, with recognition of the inherent right to self-determination of First Nations people and their exclusive jurisdiction over child welfare, several provinces have introduced explicit adoption legislation reflecting the concern for the appropriate placement of First Nations children and the importance of preserving their cultural identity and unique status.59 In Canada, every year the numbers of international adoptions are decreasing (2000 in 2004 down to 712 in 2017) most of which are cross-cultural and often transracial. There are also many domestic transracial adoptions.60 Baxter reports that “in a Canadian survey involving families from British Columbia, Ontario and Quebec who had adopted internationally and whose children were now adolescents or young adults, the self-esteem of the intercountry adoptees was found to be higher than that of the general population … in a study of a subset of the same population, the majority of intercountry adoptees adjusted well to life in Canada when analyzing family integration, self-esteem, school achievement, peer relations and racial and ethnic identity.”61 He notes that62 : A large majority of intercountry-adopted Canadian children were found to be comfortable with their ethnic and racial background. There were no significant differences between comfort with ethnicity and the types of activities the parents encouraged their children to 58 See,

for example, Kimmelman, E., No Quiet Place: Manitoba Review on Indian and Metis Adoptions and Placements, Ministry of Community Services, Winnipeg, 1985. 59 See, McDade K., ‘International Adoption in Canada: Public Policy Issues’, Institute for Research on Public Policy, April 1991. 60 See, Baxter, C., ‘Transracial Adoption’, Paediatric Child Health, 11(7), 2006, pp. 443–7. 61 Ibid., citing Westhues, A. and Cohen, J.S., ‘Intercountry Adoption in Canada’, Executive Summary, Ottawa, Human Resources Development Canada, 1994. 62 Ibid., citing Westhues, A. and Cohen, J.S., ‘Ethnic and racial identity of internationally adopted adolescents and young adults: Some issues in relation to children’s rights’, Adoption Quarterly, 1998, 1, pp. 33–55.

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be involved in to heighten their child’s awareness of their ethnic and racial background. There was no relationship between experiencing racism and comfort with ethnic and racial background

Although transracial adoptions are controversial, the North American Council on Adoptable Children (NACAC), representing more than 400 Canadian and American child advocacy organizations, offers the following balanced view63 : Children in need of adoption have a right to be placed into a family that reflects their ethnic or cultural heritage. Children should not have their adoptions denied or significantly delayed, however, when adoptive parents of other ethnic or cultural groups are available.

Its position, that transracial adoption should be considered when a suitable family of the same race cannot be found, seems unassailable. The Supreme Court, in Van de Perre v. Edwards,64 concurred with this view when it declared that “even in adoption cases where it might play a more important role, race is not a determinative factor and its importance will greatly depend on the facts”.65 The current acknowledgment of a transracial strand in the Canadian adoption process is such that representative groups have been formed, such as Newfoundland and Labrador Families Adopting Multiculturally (NLFAM), which lobby assertively on behalf of such families.

9.2.2.2

First Party Adoptions

Although statistical data is problematic, domestic adoptions by step-parents, close relatives or other kinship applicants would seem to be decreasing in Canada. Step-parents A United Nations report in 2009 estimated that of the approximately 2,243 domestic adoptions in 2001, 527 or 12.8% were by step-parents or other relatives.66 It draws attention to “the sizeable numbers of adoptions by step-parent or other relatives, ranging between 300 and 600 annually”. A large proportion of step-parent adoptions involve older children. Some of these can prove contentious as in Gill v. Gill67 when the court was faced with the dilemma of balancing the right of a seven year old boy to develop a relationship with his birth father—who had become a complete stranger to the child with whom he now wished to establish access—against the disruption this would cause to established family life in which the boy had formed a close attachment to his mother’s new husband. A rather extreme example was the Ontario case of MacBeth, Re,68 when a step-father applied to adopt his 30 year 63 See,

further, at: https://www.nacac.org. 2 SCR 1014. 65 Ibid., at para 39. 66 See, UN Dept of Economic and Social Affairs/Population Division, ‘Child Adoption: Trends and Policies’, United Nations, New York, 2009 at p. 199. 67 1994 CanLII 2644 (BC SC). 68 2013 ONSC 3252. 64 [2001]

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old independent step-daughter under the Child and Family Services Act. While this legislation clearly permitted the adoption of an adult, it did not provide any guiding criteria as to the circumstances in which this might be appropriate. Justice Henderson found that the caselaw established four criteria for the adoption of an independent adult person: • The adoption would create an actual (not just legal) change in the relationship between the applicant and the proposed adoptee; • Both parties are aware of the legal incidents of adoption, and intend those incidents to govern their new relationship; • The application is motivated by the psychological and emotional need of the proposed adoptee for a new parent or for a parent to “fill the gap” in the parenting of the proposed adoptee; and, • The relationship between the applicant and the proposed adoptee would be “enhanced and strengthened” by the adoption order. In the particular circumstances of this case he found that there was sufficient evidence to satisfy the four criteria and so granted the adoption order. Kinship The practice of kinship adoption in Canada owes much to the well-established tradition among the First Nations for children to be cared for by members of their extended family or clan.69 It has more recently been noted as a characteristic of adoption from care whereby a child is fostered out with a member of their extended family who subsequently adopts him or her. There would appear to be no available nationwide statistical data on kinship adoption partially, perhaps because the overlap with First Nations custom adoption adds to the auditing complexities. First and second generation immigrants constitute a particularly high proportion of the Canadian population. As in other countries—such as the U.K. and the U.S.— which share this demographic characteristic, though to a lesser degree, it is inevitably accompanied by a variation of intercountry adoption which sees established immigrants, with citizenship, applying to adopt a related child who remains in their country of origin.

9.3 Overview of Principles, Policy and Law Needless to say, as with all other aspects of adoption, there is a lack of nationwide coherence in the approach to matters of law and policy. While all provinces and territories can be said to share a similar policy towards adoption from care, stepparent and kinship adoption, private adoption agencies and intercountry adoption, 69 See,

for example, First Nations Child and Family Caring Society of Canada, Supporting First Nations Adoption, 2010, at: https://www.fncaringsociety.com/sites/default/files/13.FNCFCS-Sup porting-First-Nations-Adoption-Dec2010.pdf.

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they differ on matters such as post-adoption access to identifying information. While in some the statutory law is quite modern, in others it is not and in all the government would seem to employ a light touch when regulating private adoption and private agencies.

9.3.1 Adoption Principles and Policy The U.N. Committee on the Rights of the Child has rightly drawn attention to the fact that “domestic adoption legislation, policy and practice are set by each of the provinces and territories and vary considerably from jurisdiction to jurisdiction and as a result Canada has no national adoption legislation, national standards, national database on children in care or adoption and little known research on adoption outcomes”.70 Consequently, there can be no national formulation of adoption policy in Canada.

9.3.1.1

Principles

An inevitable consequence of the lack of federal leadership in adoption law and policy is an inconsistency across the provinces and territories as regards the recognition and weighting given to governing principles. The Welfare Interests of the Child The UN Committee on the Rights of the Child, in its 2012 report, expressed its concern “that the best interests of the child is not widely known, appropriately integrated and consistently applied in all legislative, administrative and judicial proceedings”.71 It also strongly advised that “children be given the right to be heard when decisions are being made that will affect them”.72 Openness Adoption policy and legislation in a number of Canadian jurisdictions, now support openness in adoption—both openness in terms of unsealing records from past adoptions for adopted adults and birth parents, and promoting openness in accommodating varying degrees of ongoing contact between birth family members and the adoptee. As was pointed out in New Brunswick (Minister of Health and Community Services) v. L. (M.),73 even where the state intends to find an adoptive family it may be in the best interests of the child to maintain contact with his natural family. 70 See,

the UN Committee on the Rights of the Child, 61st session, C/CAN/CO/3-4, October 2012, at para 57. 71 Ibid., at para 34. 72 Ibid., at para. 37. 73 [1998] 2 SCR 534.

9.3 Overview of Principles, Policy and Law

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Policy

There is a firm policy commitment throughout all provinces and territories to increasing the number of annual adoptions from the care system. This policy is one that Canada shares with the U.S. and the U.K. and in all three countries the majority of domestic adoption orders issued to non-relatives have for some years been made in respect of children from the public care system. However, as the UN Committee on the Rights of the Child noted in its above mentioned report, there are no policies or rules for adoption that are the same across federal, provincial and territorial governments, and not enough information on the situation of adopted children and it therefore recommended that “there is one set of adoptions rules across all of Canada that are in line with the Convention and other international rules that protect children’s rights”.74

9.3.1.3

Adoption Alternatives: Long Term Fostering and Private Family Orders

The National Children’s Alliance of Canada, in its 2000 report, noted that75 : Another emerging option of family-based care is evolving, namely guardianship care. Guardianship care is a status between that of foster care and adoption; guardianship care is granted to a known family member or specified friend, to indicate permanency of care. The province would retain legal guardianship status until the child reaches adulthood.76

It later makes the point that77 : Historically, permanency planning alternatives consisted of family reunification or adoption. More recently, models for permanency have expanded beyond these extremes on the permanency continuum. Options such as Kinship Care, Customary Care, Guardianship Care, Open Adoption and subsidised adoption are more recent alternatives being utilised, or explored, which have the capacity to provide consistency and offer permanence for children.78

Nonetheless, as was emphasised in CAS Peel v. W.O., R.S.B. , H.B. and S.B.,79 the comparative benefits of adoption are considerable: it creates an exclusive and binding legal relationship; provides a permanent home; inheritance and devolution of property rights apply; removes any possibility of third party interference; and there is no risk of future court action. 74 Ibid.,

at para. 27. Farris-Manning, C. and Zandstra, M., ‘Children in Care in Canada’, op cit, at p. 3. 76 Ibid., citing Aitken, G., ‘Extending Options in Permanency Planning’, in Permanency Planning in the Child Welfare System, Ottawa, Sparrow Lake Alliance: Children in Limbo Task Force, 2002 at p. 23. 77 Ibid., at p. 13. 78 Ibid., citing Crosson-Tower, C., Exploring Child Welfare: A Practice Perspective (2nd ed), Allyn & Bacon, Massachusetts, 2001, at p. 331 and Aitken, G., ‘Extending Options in Permanency Planning in the Child Welfare System’, op cit at pp. 23–24. 79 [2002] O.J. No. 1099 (OCJ). 75 See,

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9.3.2 Contemporary Adoption Related Legislation Each and every province and territory legislates for adoption independently, the legislation is often quite dated. In British Columbia the relevant statute is the Adoption Act 1991 (as revised in 1996 and as subsequently impacted by the Family Law Act 2013), in Saskatchewan it is the Adoption Act 1989. The Intercountry adoption Act 1998, together with its ancillary regulations, is the only nationwide domestic legislation affecting adoption.

9.3.3 International Law Canada ratified the International Covenant on Economic, Social, and Cultural Rights in 1976, the UN Convention on the Rights of the Child in 1991 (and one of the two optional protocols to it while signing the other) and the Hague Convention on International Adoption in 1997 with effect throughout the provinces and territories by 2006. Intercountry adoption must operate within the framework they provide and with regard to such domestic provisions as the Immigration and Refugee Protection Act, the Multiculturalism Act 1988, the Citizenship Act 1977 and the Charter of Rights and Freedoms. For the purposes of the Hague Convention, each Canadian province and territory acts independently as a contracting state and has its own Central Authority (see, further, Sect. 5.6.2.1).

9.4 Regulating the Adoption Process Although each jurisdiction and territory independently regulates the adoption process they do so in accordance with much the same set of legislative, judicial and administrative machinery. Perhaps the only common cross-jurisdiction benchmarks for adoption are those provided by the Charter, the rulings of the Canadian Supreme Court and the Vital Statistics legislation.

9.4.1 Length and Breadth of the Process Leaving aside customary adoption as practised by the First Nations (see, further, Sect. 21.3), the statutory process in all provinces and territories conforms to much the same model, with variations in respect of matters such as post-adoption support and access to identifying information.

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9.4.2 Role of Adoption Agencies and Other Administrative Bodies Approximately half of all annual Canadian adoptions are private adoptions, mostly mediated by adoption agencies operating on either or both a domestic and intercountry basis: Canada Adopts80 being an IT search engine for registering and matching adopters and birth parents. The office and remit of other bodies such as the Registrar General, the Central Authority for intercountry adoptions and the statutory child care agency are replicated in each province and territory. The Intercountry Adoption Services (IAS) agency serves as the federal Central Authority for the purposes of Hague Convention adoptions. It facilitates and co-ordinates communications between adoption authorities in Canada and other countries. The role of IAS also includes sharing information on good practice, developing expertise on particular issues and data collection.

9.4.2.1

Adoption Agencies

Canada has a lot of adoption and children related agencies: Ontario alone has 52 children’s aid societies and many private agencies. Essentially, there is a division between those government agencies that manage adoptions from the care system— such as the Children’s Aid Society—and the private agencies and licensees that deal with all other forms of domestic adoption and all intercountry adoptions. Again, as in other aspects of the Canadian adoption process, there is no nationwide consistency in this division of responsibilities. There are jurisdictions in which some care adoptions are delegated from the public to the private sector and the role of private licencees can blur these boundaries. Voluntary or Independent Adoption Agencies An interesting and unusual characteristic of the Canadian adoption process is the range of mediators available to arrange adoptions. One study identified five different types of adoption mediators: government funded public agencies; independent nonprofit practitioners (physicians 59%, lawyers 35%); independent for-profit practitioners (lawyers 51%, social workers 48%); independent nonprofit agencies, whose support came from a combination of government and charitable sources; and independent for-profit agencies.81 This disparate array presents complex regulatory problems. The Adoption Council of Canada (ACC), a national nonprofit based in Ottawa, is the umbrella organization for adoption in Canada. The ACC claims that it “raises public awareness of adoption, promotes the placement of waiting children and youth, 80 At:

https://www.canadaadopts.com/services/why-canada-adopts/. Sobol, M.P. and Daly, K., ‘Adoption Practice in Canada: Emerging Trends and Challenges’, Child Welfare, Vol. 74, No. 3. 81 See,

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and stresses the importance of post-adoption services”. Its services include adoption resources, referrals, education and support.82 In Canada the law permits private adoptions, mediated by a registered nonprofit or for-profit adoption agency, operating on a domestic or intercountry basis. These provincially-licensed organizations provide a variety of pre- and post-adoption services to both prospective adoptive parents and/or to birth parents.83 Using such an agency to arrange a private adoption can be a relatively expensive process with fees on average varying between $10,000–$20,000 for a domestic adoption and upwards of $50,000 for intercountry. In Manitoba the amount of fees that agencies can charge are capped but this approach is not typical. As the adoption pool shrinks, and agencies such as Hope Adoption in Vancouver and Imagine in Ontario close due to financial difficulties, the remainder are becoming more competitive and their services more expensive. Some accredited adoption agencies have a specific intercountry brief such as CARC International Adoption which is a non-profit adoption agency, licenced to facilitate Canadians wishing to adopt children from Bulgaria, Kazakhstan, Romania and Ukraine.84 Open Arms to International Adoption, a nonprofit founded by adoptive families to help adoptive families complete international adoptions, is licensed under Ontario’s Intercountry Adoption Act 2000 and is accredited by the China Centre of Adoption Affairs in Beijing.85

9.4.3 Role of the Determining Body In all provinces and territories adoption is a judicial process. This is just as well, given that the process has become so much more complicated in the twenty-first century. The fact that in many Canadian jurisdictions it accommodates adult adoptees with all the associated complexities relating to certain matters—such as ‘opting out’ of birth family, more favourable inheritance incentives, consanguinity issues – that this entails, is in itself justification. In addition, the more usual issues of immigration and citizenship associated with intercountry adoption, together with matters relating to adoption in a First Nations context and the proliferating issues that now accompany domestic adoptions arising from same sex relationships, surrogacy etc., strongly suggest determination in a judicial rather than an administrative forum.

82 See,

further, at: https://www.adoption.ca.

83 The organisation Adopting in Canada provides a list of such agencies, at: https://www.canadaado

pts.com/canada/resources_priagencies.shtml. 84 See, further, at: https://www.carc-ia.com. Also see, Adoption Horizons Inc at: https://www.adoptionhorizons.com. 85 See, further, at: https://www.open-arms.com.

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9.4.4 The Registrar General Each province and territory has a Registrar General responsible for collating vital statistics, namely birth, marriage and death certificates. As there is no central Canadian registry for such data, application for adoption related information must be made to the Vital Statistics Office of the province in which the adoption occurred.

9.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria While the threshold criteria for entering the process are broadly similar to those applied by regulatory authorities in other developed western nations, and are probably not markedly different within the different jurisdictions of Canada, there is no uniformity: each province and territory has established its own separate criteria.

9.5.1 The Child A feature of the adoption process in Canada is that it is not necessarily restricted to the adoption of children: some provinces permit the adoption of adults. In British Columbia, for example, the Adoption Act, s 44, provides for such adoptions while in Alberta, Saskatchewan and Ontario similar provision is made in equivalent legislation by not stipulating any upper age limit for the adoptee.

9.5.1.1

The Welfare Threshold

Arguably, the tide has turned to now favour a presumption that adoption is the preferred legal option for a child failed by parental care in their family of origin. At least this would appear to be the case in Ontario where it has been pointed out that86 : Under the old legislation, it was open to the parent, to establish that there was a stable foster home placement that was a preferable alternative to adoption. This is gone. Now s 63.1 sets out that adoption is a better way to provide the child with a positive, secure and enduring relationship within a family. To counter the test, the onus is on the parent to lead evidence that adoption is not a realistic opportunity.

While such a prioritising of child needs over parental rights clearly demonstrates a lowering of the welfare threshold for adoption in a child care context, it is less evident that welfare plays such a prominent role in step-parent and post-surrogacy adoptions. 86 See,

CAS Ottawa v. C.W. [2008] Canlii 13,181 (Sup.Ct.).

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9.5.2 The Birth Parents Where an adoption is being processed through a private adoption agency, the birth parents have the final say as to choice of adopters. Considerations of marital status, same sex or heterosexual orientation will be relevant but so also will factors such as profession, address, religion, and race. Where the child concerned is a Crown ward placed for adoption then, in jurisdictions such as Ontario, the birth parents are not entitled to notice of the adoption hearing.87

9.5.2.1

Unmarried Mother

A birth mother who is thinking about adoption for her unborn child will typically be presented with a range of self profiles compiled by prospective adopters. She will most probably arrange to meet the prospective adopter/s, usually relying on the mediating role of an adoption agency, to choose the prospective adopter/s for her child. Consent Her consent is essential, usually subject to a time lapse since birth of the child, and opportunities for retraction are very limited.88

9.5.2.2

Unmarried Father

In some jurisdictions it has been the practice to remove the name of an unmarried father from his child’s birth certificate which in effect may also remove the possibility of his being engaged in any adoption process in respect of that child.89 In 2017, the Nova Scotia Appeal Court bluntly rebuked a judge who had delayed an adoption hearing because of “entirely hypothetical” constitutional concerns about whether the child’s biological father had been given proper notice. This was a case concerning a baby, voluntarily relinquished by the mother into state care shortly after birth, and subsequently placed with approved adopters who had then submitted an uncontested adoption application. The judge’s refusal to grant the application, pending enquiries into the role of the birth father, resulted in a delay of almost a year before the matter reached the Appeal Court which—reaffirming that the only

87 See,

the Child and Family Services Act 1990, s 151(4)(c). Chambers, L., ‘Newborn Adoption: Birth Mothers, Genetic Fathers and Reproductive Autonomy’. Canadian Journal of Family Law, 26 (2) (2011), pp. 339–394. 89 See, the UN Committee on the Rights of the Child, 61st session, C/CAN/CO/3-4, October 2012, at paras 38 and 39. 88 See:

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consent legally required in respect of a “child in care” was that of the minister with responsibility for family and child care services—duly issued the adoption order.90 Consent In some but not all provinces and territories the consent of an unmarried father is required and generally most require notice of prospective adoption proceedings to be served on all parents, including an unmarried father, whether or not they are involved in a child’s life.91

9.5.2.3

Failed Parental Rehabilitation

Canadian courts give serious consideration to the question of whether the home circumstances of a child in care have improved sufficiently to warrant the return of the child to parental care instead of proceeding towards possible adoption. Although it may well be that this approach is dependent to some degree upon whether the initial parental failure had its roots in neglect or abuse. In the latter instance, as it was trenchantly put in Children’s Aid Society of Ottawa-Carleton v. H. (L.), there was a need for separation from the child’s original parent or parents so that the child could “rage against them”. Justice Susan Himel, in Children’s Aid Society v. E.L.,92 was of the view that in order to give effect to the statutory (child protection) scheme, and recognizing that stability and continuity for children is desirable, it was appropriate to impose a threshold test of material change in circumstances. The test being not whether the parents have seen the light and intend to change, but whether they have in fact changed and are now able to give the child the care that is in his or her best interests. There should be no experimentation with a child’s life: giving the parents another chance necessitates the child having one less chance93 ; it must be demonstrated that the parents are able to parent the child without endangering his or her safety.94 The guidance offered by Thomson J, in Children’s Aid Society of Kingston v. F.R.,95 is still referenced in contemporary cases: the question should be one of deciding whether, in light of their individual capabilities, these parents are able to meet their parental responsibilities. If the answer to this question is no, then the judge should decide whether, given the proper assistance and intervention, the parents can be provided with the tools necessary to care adequately for their child. This issue should not be resolved by simply noting the difficulties involved in securing the needed help when the child remains within the home. The actions of the persons involved in this case 90 See,

further, at: https://www.cbc.ca/news/canada/nova-scotia/adoption-hearing-delayed-appealcourt-ruling-1.4260116. 91 See, D.C. v. W.A. [2003] O.J. No. 5119. 92 [2003] O.J. No. 3281 (O.S.C). 93 See, Children’s Aid Society of Winnipeg (City) v. R. (1980), 19 R.F.L. (2d) 232 (Man.C.A.). 94 See, Children’s Aid Society of Brockville, Leeds and Grenville v. C. [2001] 2001CarswellOnt 1504. 95 (1975), 23 R.F.L. 391 (Ont. Prov. Ct. – F.D.).

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show that, with a co-ordinated effort, extensive assistance can be given to parents such as the R. Only if it is felt that the risk to the child is too great, even with outside help, should the court remove the child from the home.

In Crown wardship cases consideration should be given to whether the parent has had an opportunity to parent. Where the statutory agency frustrates contact with the parent and offers no services, this consideration must come into the equation.96 The agency also has a duty to reassess its position as circumstances warrant over time.97 In functional terms, the parental right of access determines rehabilitation: parental access to a child in public care—most usually a Crown ward—will be managed at the discretion of the statutory agency in accordance with whether or not this is demonstrably furthering the welfare interests of the child concerned. It must not cut back access in preparation for a possible success in its Crown wardship application allowing the agency to then argue that a “limited relationship” exists between child and parent.98 The court will not merely “rubber stamp” decisions previously made by the agency.99

9.5.3 The Adopters: Eligibility and Suitability Criteria There is considerable jurisdictional variation in the eligibility of single applicants, whether male or female, and in the upper age limits for prospective adopters (in Quebec and Newfoundland, for example, a prospective adopter must be at least 25 years of age).

9.5.3.1

Third Party Adopters

Regardless of jurisdiction, whether their interest is in a domestic or intercountry adoption, and whether they have approached a public child welfare agency or a private adoption agency, applicants will have to undergo broadly the same assessment/training process. After the initial information session, a home study assessment process of 6–10 visits will be undertaken by the agency social worker. Police and medical checks will be completed, character references taken up, personal finances 96 See,

Children and Family Services for York Region v. A.W. and M.M. [2003] O.J. no. 996 (Sup. Ct.); CCAS v. P.A.M. [1998] O.J. No. 3766 (OCJ); CAS of the United Counties of Stormount, Dundas and Glengarry v. C.K. [2001] O.J. No. 128 (Sup. Ct.). 97 See Children’s Aid Society of the Niagara Region v. D. (W.) 2004 CanLII 66347 (ON S.C.), (2004), 1 R.F.L. (6th) 84 (Ont. S.C.J.); Children’s Aid Society of the Niagara Region v. B. (C.), [2005] O.J. No. 3878 (Ont. S.C.J.); Children and Family Services of York Region v. E. (P.), [2003] O.J. No. 4884 (Ont. S.C.J.); and Children’s Aid Society of London and Middlesex v. S. (E.V.F.) 2004 CanLII 34346 (ON S.C.), (2004), 1 R.F.L. (6th) 68 (Ont. S.C.J.). 98 See, Catholic Children’s Aid Society of Metropolitan Toronto v. Pier Angelii M., 1998 CanLII 14476 (ON C.J.). 99 See, Children’s Aid Society of Hamilton v. E.O., 2009 CanLII 72,087 (ON S.C.).

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assessed and training programmes attended. Residency within the province or territory where the application is being made is usually mandatory. The completion of the home study report will be crucial to agency approval of the applicant as an eligible and suitable adopter and, for intercountry adopters, this requires endorsement by the local statutory authority.

9.5.3.2

First Party Adopters

In some provinces and territories there is a more relaxed approach to the assessment of relative adopters. In Quebec, for example, certain relatives—grandparents, aunts, uncles, great-aunts, and great-uncles—are exempted from a number of regulatory requirements (e.g., no requirement to complete the parental training and homestudy process).100 There is no nationwide consistency. However, the recent case of S.M. (Re)101 does have nationwide implications for adoption law; albeit in a narrow field. This case concerned two women who had shared a home, but not a romantic relationship, for over a decade where they cared for two half-sibling foster children. They applied jointly to adopt the older sibling, aged three, who had lived with them since she was three days old. Initially it seemed that their application must fail as their status was not that of ‘spouses, married to each other’ as specified in the relevant legislation.102 Legally they wre left in the position of having to choose which of them would receive legal recognition as parent of a child, who had only ever known both as parents, and which would be left without any relevant legal status. Justice Mitrow considered that the paramount purpose of the legislation—stated as being to promote ‘the best interests, protection and well-being of children’—was in this instance negated by the spousal requirement. Finding the law to be discriminatory and in breach of the rights guaranteed under s 15 of the Canadian Charter of Rights and Freedoms, Justice Mitrow set aside the offending clause and held that the applicants were entitled to proceed with their joint application. The ruling that “no demonstrable benefit can emerge from legislation proscribing joint adoption applications by two individuals living in a non-spousal relationship” is one that will have implications for other non-traditional parenting partners across Canada. Canadian immigrants, adopting a relative child resident in their country of origin, must register with a Canadian licensed adoption agency and be approved as eligible and suitable adopters. Such applicants may be the grandparent, uncle, aunt, cousin or others—as defined by the laws of the country in which the adoption takes place— of the child in question. Matters such as the wishes of the child, the availability of required consents, and the family circumstances of the child in their country of birth, will also require professional examination.

100 See,

further, at: https://www.adoption.on.ca/relative-adoption. ONSC 5145 (CanLII). 102 Ontario’s Child, Youth and Family Services Act, which replaced the Child and Family Services Act but retained the reference to spouses. 101 2018

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Intercountry Adopters

Prospective intercountry adopters will be required to submit to the same processes, produce the same documentation and character references and satisfy the same eligibility and suitability criteria as those hoping to adopt domestically. A point of difference being that all intercountry adoptions are processed through independent adoption agencies. In addition, the attitudes of such prospective adopters and their preparedness for dealing with possible racial discrimination will be explored and assurances will be sought of their committment to respecting and nurturing the child’s cultural identity. As noted above, the kinship adoption by Canadian citizens of a related child resident in their overseas country of birth is treated as an intercountry adoption: so, for example, a home study report is required by the Canadian citizenship and immigration authorities. A primary concern of the Canadian Immigration in such cases is to ensure that the welfare interests of the child are the paramount consideration and that the adoption is not merely a ruse to facilitate immigration and secure Canadian citizenship. As explained on the Children’s Bridge website103 : Adoption cannot be seen only as a means to bring a child into Canada to further his/her education and economic circumstances. The family that wants to adopt must demonstrate a clear attachment to the child to be adopted. The younger the child is for adoption, the more obvious the intent is for a proper adoption, and the greater the chance of Immigration approval.

If Canadian Immigration refuses a relative adoption application, the prospective adopters have the right of appeal.104

9.5.3.4

Single and Same Sex Adopters

Single adoption applicants are eligible in some jurisdictions in Canada but not in all. Following legalisation of same sex marriage in 2005,105 adoption by same sex couples have been eligible and common adoption applicants in every province and territory.

9.6 Pre-placement Counselling As a matter of good practice rather than statutory law, adoption placements in all provinces and territories are generally preceded by the counselling of birth parents regarding their options and the legal significance and process of adoption. There are many nonprofit community organisations available, at least in the main towns and 103 At:

https://www.childrensbridge.com/pages/chinaRA.html. further, at: https://worldviewadoption.com/relative-adoption/. 105 The Civil Marriage Act, adopted on 20th July 2005, legalized same-sex marriage across Canada. 104 See,

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cities, to provide counselling services. The offer of such services to the parent/s of a Crown ward prior to the latter’s adoption is now standard procedure.

9.7 Placement Rights and Responsibilities The placement of a child for adoption purposes is the most critical step in any adoption process. With the exception of customary adoptions, this step is one that is subject to statutory regulation.

9.7.1 Authority to Place The laws governing an arrangement to place a child for adoption vary across the provinces, territories and the First Nations. Often intercountry and private domestic placements, intended to be for adoption purposes, require government approval in advance.

9.7.1.1

Placement by Birth Parent

Some provinces permit private adoptions arranged directly between birth parents and prospective adopters, provided no payments are involved, and this will allow the birth parent to actually make or authorise the making of an adoption placement. Other provinces either prohibit direct parental placements or allow them but require that they be made through a statutory agency or a licensed adoption agency. Such placements, which are legal if they do not involve payment or advertising, illustrate the extent to which adoption in Canada has retained and is perhaps further developing its private characteristics. In all provinces, professional staff will be engaged—usually from an adoption agency—to complete the adoption process.

9.7.1.2

Consent

Except for children in foster placements, the consent of birth parents is a prerequisite for the adoption placement of a child.

9.7.1.3

Placement by Accredited Body

Subject to the wishes of the birth parent/s, a matching of child with prospective adopters is agreed and the placement is made by the agency social workers. Identification of the placement most suitable to meet the needs of the child will be made

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once the birth parent/s have had the opportunity to examine the profiles of selected prospective adopters and their wishes, particularly in respect of the child’s religious upbringing and cultural identity, are taken into account and following the sharing of information with the prospective adopters on matters such as the child’s medical and social history. In Catholic Children’s Aid Society of Toronto v. L.D.E.106 the court considered the issue of what information should be shared with the prospective adopters and ruled that at a minimum they should be advised that the child’s birth parents had a difficult relationship scarred by domestic violence and drug abuse. Further, any placement should not take place until after steps have been taken to extinguish any custody order.107

9.7.1.4

Foster Placement

Children failed by parental care typically live with foster families following court termination of the rights of their birth parents. The majority of such children are aged between six and eighteen, many are one of a group of siblings and most have some degree of health or social care needs. Some will remain in their foster placement and be adopted by their foster families, others will be matched with approved prospective adopters and transferred by the agency social workers to an agreed adoption placement. The following procedure as outlined in Nova Scotia (Community Services) v. T.G.108 may be taken as having general application throughout the provinces and territories: The selection of an adopting family for a child(ren) in permanent care and custody by court order or under a Section 68 agreement must take place at an adoption placement conference.

There are no fees for adopting through the public system and some financial support is available if the child requires ongoing services, such as counselling.

9.7.2 Placement Supervision Following placement of the child, a probationary period from six months to a year, depending on the province or territory, ensues. During this time the birth parent/s and the adopters share joint guardianship responsibilities, while regular home visits are undertaken by the agency social worker to monitor the child’s welfare and assess how the family is coping. At the conclusion of the probationary period, and in the light of the supervising social worker’s report, if it appears to the court that adoption is in the best interest of the child, then the order will be finalized. 106 2012

ONCJ 530 (CanLII). H. (H.L.) v. Catholic Children’s Aid Society of Metropolitan Toronto, 1987, CanLII 2361 (ON SC). 108 2012 NSCA 43 (CanLII). 107 See,

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In Newfoundland the peremptory removal of a child by the statutory authorities from an adoptive home after allegations of mistreatment, seven days before the expiration of the probationary residence period of six months, was followed by the prospective adopters being denied a right of appeal to the Adoption Appeal Board. The resulting Supreme Court of Canada decision in Beson v. Director of Child Welfare (NFLD.)109 reversed the decision of the lower court and granted the adoption order. It found that the applicants had been unfairly treated when they were initially denied a right of appeal.

9.8 The Hearing In all provinces and territories the statutory adoption process leads to a judicial hearing, usually in a district court. The basis for this has been explained as follows110 : Jurisdiction to make a valid adoption order is conferred on the courts of the common law provinces and territories by statute. In none of the provinces and territories is the domicile of either natural parent, child or adopting parent an exclusive basis for jurisdiction. Most statutes emphasise the residence of either the adoptee or the adopter. Some statutes are silent as to jurisdiction.111

The judge will make a determination having first taken into account the homestudy report and other documentation submitted by the applicant adopters and the adoption agency. The hearing is conducted in private.

9.8.1 Where Consent Is Available Whether an adoption application is domestic or intercountry, the consents required are those of: the birth mother, the birth father if he is registered as the father on the child’s birth certificate or if he has applied for guardianship; any other guardian; and usually also the child (or adult) if aged 12 or more.

9.8.1.1

Withdrawal of Consent

Judicial discretion, guided by a presumption that a child’s welfare would be best served by maternal care, used to prevail when it came to considering the weight to be given to a birth mother’s withdrawal of consent. It was generously applied in

109 [1982]

2 S.C.R. 716. Castel, J.-G., Canadian Conflict of Laws (4th ed), Butterworths, Toronto, 1997 at p. 444. 111 Citing, L. (T.I.) v. F.(J.L.) 2001 MBCA 22 (CanLII). 110 See,

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cases such as Re Baby Duffell,112 when the SCC upheld a birth mother’s withdrawal of consent given two years earlier and directed the child’s immediate return from adoption placement to maternal care. Legislative intervention subsequently curbed judicial discretion to make this residual parental right, as with all other factors, subject to the governing determinant—the welfare interests of the child. The result being that in all domestic cases a birth mother is now given a fixed period of days within which she may withdraw her consent to adoption; the period varies across the different provinces and territories: in British Columbia it is 30 days from the birth of the child.

9.8.2 Where Consent Is Not Available Consent may not be available because the birth parents or guardians have died, their whereabouts are unknown or they are incapable of giving a valid consent. Usually, as in British Columbia, parents who have consented to an adoption may withdraw that consent before the child is placed with the prospective adoptive parents, while a child aged 12 or over may withdraw consent at any time up until the adoption order is granted.

9.8.2.1

Dispensing with Consent

In Canada, the status of a Crown ward means by definition that all parental rights in respect of the child so designated have been permanently removed and consequently the consent of birth parents for the adoption of that child is not legally required. Non-consensual adoption of children in care refers, in practice, to the adoption of some of the many thousands of Crown wards in foster care. It applies also in the context of private family law proceedings following a breakdown in relationships. In C. (M.A.) v. K.(M.),113 for example, the adoption application by a lesbian couple—the custodial parents and primary caregivers of a child—was contested by the biological father, a sperm donor, and actively involved parent. The court refused to dispense with the need for his consent and rejected the adoption application.

9.9 Thresholds for Exiting the Adoption Process While there is considerable variation among the provinces and territories, the fact that adoption from care is becoming—and in some jurisdictions has already become—the 112 [1950]

S.C.R. 737. Promptly followed by similar rulings of the SCC in Hepton v. Maat, [1957] SCR 606 and Re Agar, [1958] SCR 52. 113 2009 ONCJ 18 (CanLII).

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primary source of adoptees, suggests that in Canada the welfare of a child is a real threshold for making the majority of adoption orders. Such non-consensual adoptions place a clear priority on securing a better future for the child than on respect for the rights of abusing or neglectful parents. Openness, which has long been a feature of customary adoption and in the adoption of adults, is now an accepted characteristic of orders made in the statutory process and of access to post-adoption information. Again, acceptance of openness is now broadly necessary for a successful adoption application.

9.9.1 The Welfare Interests of the Child Any assessment of what constitutes the welfare interests of a child must start with an acknowledgment that the endemic jurisdictional difficulties also apply to the issue of defining a ‘child’. There is no one agreed age of majority for all purposes of Canadian law. In Alberta, Ontario, Saskatchewan, Manitoba, Quebec, and Prince Edward Island the age of majority is eighteen, and in British Columbia, New Brunswick, Nunavut, Nova Scotia, and Newfoundland and Labrador the age of majority is nineteen. In general, the adoption statutes do not emphasise the centrality or overriding importance of the welfare interests of the adoptee. In Ontario, for example, the statutory duty is for the court to be no more than satisfied that the order is “in the child’s best interests”.114 However, this province does provide the following statutory checklist of matters to be considered when determining welfare: the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; the child’s physical, mental and emotional level of development; the child’s cultural background; the religious faith, if any, in which the child is being raised; the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family; the child’s relationships by blood or through an adoption order; the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; the child’s views and wishes, if they can be reasonably ascertained; the effects on the child of delay in the disposition of the case; and any other relevant circumstance. This province is also one that has made provision for the adoption of adults in the Adoption Act 1988, s 28, and again this is subject to evidence that the proposed adoption will promote welfare interests.115 The Supreme Court of Canada established in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)116 (the ‘spanking case’) that fundamental justice did not require that laws affecting children be in their best interests: the welfare interests of a child was not a principle of fundamental justice.

114 Child

and Family Services Act 1990, s 146(1). for example, Adoption of Q.(A.L.K.) 1996 CanLII 4748 (ON CJ). 116 [2004] 1 SCR 76, 2004 SCC 4. 115 See,

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The Paramountcy Principle

A requirement that the welfare of the child must be accorded paramount importance when determining an adoption application is not evident in the legislation of the provinces and territories. In Beson v. Director of Child Welfare (NFLD.)117 the Supreme Court of Canada found that the parens patriae jurisdiction of wardship could have been exercised to fill a legislative gap and this would have allowed the paramountcy principle to determine subsequent decision-making in relation to a 4 year old boy peremptorily removed from his probationary adoption placement.118 In Williams v. Hillier et al.,119 the same court found that step-adoption was not affected by the paramountcy principle. Constraints The welfare principle is restricted to factors present at the making of an adoption order: there is no statutory requirement to take into account the likely effect of an adoption order on the welfare of the child throughout childhood; and none to consider, as in the U.K., its lifelong implications for the child concerned. Also some family adoptions in some provinces and territories are not subject to the same rigour of prior professional screening as those of third party adopters, which may dilute the welfare test. Moreover, welfare interests do not provide any statutory guarantee of pre or post-adoption access to support services nor to identifying information.

9.9.1.2

Voice of the Child

All relevant legislation, at territory and province level, stipulates a need to ensure that the making of an adoption order is compliant with the best interests of the child concerned and this is legally interpreted as imposing a requirement that their views, preferences or wishes are sought—age and understanding permitting - and made into account before any decision is taken. The U.N. Committee on the Rights of the Child, in its 2012 report, expressed its concern that inadequate mechanisms were available “to ensure the implementation of the right of the child to be heard” as required under UN CRC, Article 12. It specifically recommended that “the views of the child be a requirement for all official decision-making processes that relate to children”.120 Consent In every province and territory, children above a certain age—usually 12—must consent to their adoption. Currently there is considerable variation across the provinces and territories regarding any such statutory requirement. In Ontario the 117 [1982]

2 S.C.R. 716. A. v. Liverpool City Council and another, [1981] 2 All E.R. 385. 119 [1980] 2 S.C.R. 368. 120 See, the U.N. Committee on the Rights of the Child, 61st session, C/CAN/CO/3-4, October 2012, at paras 36 and 37. 118 Citing

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consent of a child aged 7 years or older must be obtained but the court is merely required “where it is practical to do so to hear the child”121 and “a child 12 years of age or more who is the subject of an application under this section is entitled to receive notice of the application and to be present at the hearing”.122 In British Columbia, the consent of every child aged 12 or more will be sought in all adoption proceedings including step-parent and kinship applications. In Manitoba, the presumptive age at which a minor is entitled to be heard by the court on matters affecting him/herself is 16.123 However, as was explained in CAS Niagara Region v. C.(J),124 “just because a child will not consent to an adoption at this time, does not mean that they would not consent later when presented with a viable adoptive home”. Adoption legislation also provides for dispensing with a child’s consent to adoption. In the Northwest Territories and Saskatchewan, the court may dispense with the requirement of a child’s consent where it would be in the best interests of the child. In Alberta it may do so “if the Court, for reasons that appear to it to be sufficient, considers it necessary or desirable to do so.” In C. (A.) v. A. (V.)125 the court was concerned with a stepfather applicant who wished to dispense with the consent of his 12 year-old step-son on the basis that the child did not know that he was not his biological father and that learning this information would cause the child emotional harm. It found that to establish risk of emotional harm that would justify dispensing with the consent of a child, an applicant must provide evidence from an expert witness skilled in making that assessment, for example a psychiatrist or psychologist.

9.9.2 Representing the Child’s Welfare Interests In C. (M.A.) v. K. (M.),126 Justice Cohen appointed counsel for a 5 year-old child who was the subject of an adoption application on the basis that the child was too young to have informed views but that representation could protect the child’s best interests by identifying broader issues than those raised by the parties themselves. In Ontario, legislative amendents in 2006 to the Child and Family Services Act 1990 now permit a child to have legal representation at any stage in adoption proceedings and where the court determines that this is desirable, it may authorize the Children’s Lawyer to represent the child.

121 Child

and Family Services Act 1990, s 152(3). s 153(5). Subsequently amended in 2006 to entitle such a child to “participate in the proceeding as if he or she were a party”. 123 See, Manitoba (Director of Child and Family Services) v. A.C. (2007), 212 Man.R. (2d) 163. 124 [2007] WDFL 2003 (Div. Ct.). 125 2012 ONCJ 7. 126 2008 ONCJ 212. 122 Ibid.,

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The issue of a child’s participatory rights in legal proceedings concerning their welfare interests, including adoption proceedings, was the subject of a recent Department of Justice enquiry.127

9.10 The Outcome of the Adoption Process It is clear from the case law that the welfare of a child requires the court to reach an outcome by proceeding expeditiously with its hearing of an adoption application.128

9.10.1 Adoption Order The traditional common law model of adoption can in practice be open to a wide contemporary interpretation as in H.V. v. M.S.129 when an adoption order was granted in respect of two women who viewed each other as having a “mother-daughter” relationship. In some provinces and territories an adoption application may conclude with an interim adoption order. In Ontario, for example, the court may postpone determination of the matter and make an interim order, placing the child in the applicant’s care and custody for a specified period not exceeding one year, and subject to such conditions regarding matters such as maintenance and education as it sees fit.130

9.10.1.1

Conditional Adoption Order

In Canada, adoption orders conform to the traditional model: they are absolute and unqualified. However, in some jurisdictions such as Quebec, if a plan for adoption has been made for a Crown ward and no access order is in effect, at any time before the adoption is finalized the court may make an order for access provided all parties consent—including the child, if over the age of 12. Also, it has been held that although a court cannot order post-adoption access to an adopted child for a birth parent or a member of a birth parent’s family, this does not prevent it from doing so to provide such access for a sibling of that child.131 there is a distinction to be made between

127 See,

further, at: https://www.justice.gc.ca/eng/rp-pr/other-autre/article12/p3a.html. Children’s Aid Society of Oxford County v. W.T.C., 2013 ONCA 491 (CanLII). 129 2004 CanLII 14891 (ON S.C.). 130 Child and Family Services Act 1990, s 154. 131 See, CAS Niagara and J.C. 2007 CanLII 8919 Div.Ct. 128 See,

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a person’s access to the child and a child’s access to a person.132 Indeed, as was stressed in Durham Children’s Aid Society v. R.S.133 : It is well established that section 59(2.1) provides a legal basis for ordering sibling access in appropriate cases: A.G. (Re), 2009 CanLII 34991 (On S.C). "These would include cases where the court concludes that sibling access is sufficiently important to a child that the CAS should be required to seek an adoption placement that will accept the access order, prior to entertaining an application to terminate based on a proven inability by the CAS to locate a suitable placement accepting the order.

Increasingly, contact arrangements are voluntarily agreed between the parties which allow for varying degrees of post-adoption ‘openness’. Such arrangements depend wholly upon the goodwill of the parties and are not legally enforceable. However, in Ontario, the court may make an openness order134 where the child is a ward and later—on the application of an adopter, the relevant adoption agency or any person entitled to access—vary or terminate any such openness condition after an adoption order has been granted.135 Private adoptions do not have enforceable conditions of openness.136

9.10.2 Alternative Orders In practice the main alternative orders are wardship and guardianship. The former is used as a default public order in respect of children for whom parental rights have been terminated but who remain in the statutory child care system. The latter is a private family order most often utilised as an alternative to adoption in the context of long-term kinship and step-parent care arrangements.

9.11 The Effect of an Adoption Order The effect of an adoption, as bluntly summarized by Nevin J in K. v. B., is “the total extinguishment of the birth parents rights and the establishment, legally, retroactively and permanently, of the parent–child relationship between a child and a person who is not the biological parent of the child”.137 132 See,

CAS of Oxford County v. Christine M., Terry M., and Grant B., 1999 Carswell Ont 4812 (OCJ). 133 [2010] O.J. No. 1134, at para 68. 134 Child and Family Services Act 1990, s 146. 135 Ibid., s 153. 136 See, Chambers, L., A Legal History of Adoption in Ontario, 1921-2015. University of Toronto Press/Osgoode Society Press, (2016). 137 125 DLR (4th) 653 (Ontario Court Provincial Division). Also, see, Kenne v. Canada (Citizenship and Immigration) 2010 FC 1079 CanLII.

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9.11.1 The Child For the child the primary effect of an adoption order is the traditional one of wholly dissolving their legal relationship to the birth parent/s and substituting a full set of legal ties to their adopter’s as though born to the latter.138 An adopted child will assume the surname of their adopter/s and will be entitled to inherit from them as though he or she was the biological child of their adopter/s; subject to qualification in respect of an adopted First Nation child who will retain their native status and associated inheritance rights.139

9.11.1.1

Citizenship

Acquiring citizenship status is governed by the Citizensghip Act and the Citizenship Regulations. In relation to children adopted outside Canada this has been a matter fraught with uncertainty, often accompanied by periods of protracted delay. The difficulties date from at least the Federal Court of Appeal decision in the McKenna case140 which found the law governing citizenship to be discriminatory as it provided automatic citizenship for children born abroad to Canadian parents while requiring those adopted abroad by Canadian parents to undergo procedures based on a residency test to acquire that status. Since December 23, 2007, anyone adopted by a Canadian citizen after February 14, 1977 is entitled to may apply for a grant of Canadian citizenship without first becoming a permanent resident. However, an application for citizenship by or on behalf of a foreign born child adopted by Canadian citizens can still be rejected.141

9.11.2 The Birth Parent/s In most provinces, the effect of an adoption order is to terminate not just all the rights of a birth parent in respect of their child but also all their duties including any orders for custody, access, or child maintenance.

138 See,

for example: Re M.L.A. 1979 CanLII 257 (ON CJ); A.M. v. Chatham-Kent Integrated Children’s Services, 2006, CanLII 38864 (ON SC). 139 For inheritance rights, see for example, Re Marshall Estate, 2006 NSSC 38 (CanLII). 140 Canada (Attorney General) v. McKenna 1998 CanLII 9098 [1999] 1 FCR 401. 141 See, Worthington v. Canada, 2008 FC 409 (CanLII), [2009] 1 FCR 311. Also, see, ‘Citizenship for Adopted Children: Canada’s New Law for 2008’, at: https://www.legaltree.ca/node/800.

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9.11.3 The Adopters Essentially, an adoption order legally creates a parent–child relationship between the adoptive parent/s and the child with all that entails in terms of maintenance obligations, implied consanguinity, inheritance rights etc. The mutuality of inheritance rights was illustrated in Mernickle v. Westaway142 when the court concluded that “the adopting father and mother are the legal heirs of the said adopted child”. As regards intercountry adoption, before an adopted child can be brought back to Canada he or she must be granted either Canadian citizenship or a permanent resident visa by the Canadian embassy or consulate in the country where he or she was adopted. Canadian citizens adopting a child from abroad can lodge a citizenship application for him or her and then, once the adoption order is granted, an application is made for a passport to allow the child into Canada. In some cases an interim guardianship order will still be required to allow the child to depart from their country of origin.

9.11.4 Dissolution of an Adoption Order Although an adoption order is generally statutorily declared to be final and irrevocable, there is usually also a right of appeal which must imply the possibility of it being revoked. This, for example, is the case in Ontario.143

9.12 Post-adoption Support Services The geography of Canada and its demographic spread militate against equitable access to post-adoption services.

9.12.1 Adoption Support Services The costs of adopting from the public care system are borne by the state, and varying levels of support are available post-adoption. Indeed, in some states such as Alberta, all families who adopt a child from public care receive a monthly subsidy—regardless of the child’s needs. While British Columbia, for example, has a Post Adoption Assistance Program that provides financial support restricted to those children placed by a statutory agency who are designated as having special needs. 142 1986 143 Child

CanLII 1011 (BC CA). and Family Services Act 1990, s 156.

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By way of contrast, private domestic and intercountry adopters are largely left unsupported by the state as the following account from Quebec indicates144 : Families adopting from the private domestic and intercountry adoption services are responsible for all the costs associated with adoption, including the parental training (PRIDE) and the homestudy process (SAFE), the services of the adoption licensee, legal fees and administrative costs. In private adoption, families also pay for the cost of counselling for the birth parent(s). In intercountry adoption, families pay fees charged by the licensee, as well as travel expenses to meet the child and bring the child home … to offset these costs, families can claim adoption expenses on their personal income tax.

The lack of post-adoption support services, universally available to all parties of any kind of adoption, has often been noted. However, since 2005, parents who adopt a child can claim a tax credit of up to $10,000 thus giving adoptive parents tax relief for “exceptional costs” which are unique to adoption, including adoption agency, legal fees, and travel costs. While in 2012, the parental benefits available under the EI program to parents enabling them to take time off work to bond with their newborn or newly adopted child or children were extended to those who foster-to-adopt.

9.12.1.1

The Role of Adoption Support Agencies

When services are available, nearly one-third of parents in a British Columbia survey said that those services did not meet their needs, and more than one-quarter said it was difficult to access them.145 Access to post-adoption support services is means tested in that state: personal assets must not total more than $300,000. A recent report noted that “Alberta, Ontario and Quebec are the only provinces with health clinics that purport to have specific expertise in adoption, and even these facilities may not be offering services directly related to some of the more complex psycho-social issues related to transracial adoption”.146 It goes on to assert that “the Edmonton Adoption Clinic appears to offer the most extensive range of services within a multidisciplinary environment” and recommends that it be viewed as a model for best practice.

144 See,

Forever Families: Ontario’s Adoption System, at: https://www.children.gov.on.ca/htdocs/ English/infertility/report/foreverfamilies.aspx. 145 See, Dhami, M., Mandel, D. and Southmann, K., ‘An Evaluation of Post–Adoption Services’, Children and Youth Services Review, Vol 29, Issue 2, 2007, at pp. 162–179. 146 See, Dwyer, S.C. and Gidluck, L., ‘Pre- and Post-Adoption Support Services in Canada: Implications for Policy Makers’, Working Paper No 31-2010, Atlantic Metroplois Centre, at: https://com munity.smu.ca/atlantic/documents/WP31CorbinDwyer.pdf.

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9.13 Information Disclosure, Tracing and Re-unification Services Having ratified UN CRC (see, further, Sect. 4.4.4) Canada is bound by Article 8 which reads: States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

However, as the UN Committee on the Rights of the Child CRC pointed out in its 2012 report, the necessary information is not always readily available, prompting it to recommend that “information about the date and place of their birth and their birth-parents is available to adopted children”.147 This deficiency has not been helped by the SCC ruling that there is no constitutional right to know one’s past by obtaining information on your own past from your sperm donor. In Ontario v. Marchand 148 the court ruled the right “to know one’s past” was not a principle of fundamental justice within s 7 of the Charter.149

9.13.1 Information Disclosure There is no consistent Canadian approach towards accessing origins information: although most provinces and territories now provide an adult adoptee with a right to access identifying information, some do not. Ontario, for example, operates a system (the Voluntary Disclosure Registry) to facilitate voluntary disclosure, where adult adoptees and birth parents can indicate a mutual desire for contact. In Ontario, the Child and Family Services Act 1990, s 162(2), requires that documents used on an application for an adoption order shall be sealed, together with a certified copy of the original order, and filed in the court office and shall not be opened for inspection except by court order. This provision has been amended, but not repealed, by the Adoption Information Disclosure Act 2005, which now allows more open access to adoption records for adult adoptees and birth parents while providing safeguards for the rights of those who do not wish to be contacted.150 In Alberta, the Child, Youth 147 Para.

27(b). 81 O.R. (3d) 172. 149 See, also, Canadian Foundation for Children at paras. 8–11, R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at para. 113.) and Cheskes v. Ontario (Attorney General) (2007), 288 D.L.R. (4th) 449 at para. 116 (Ont. S.C.J.). 150 See, further, O’Donnell, F.C., ‘The Four-Sided Triangle: A Comparative Study of the Confidentiality of Adoption Records’, University of Western Ontario Law Review, Vol 21, 1983 at pp. 129–142. 148 (2006),

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& Enhancement Act 2000 allows for access to identifying information contained in adoption records. In Saskatchewan, however, only non-identifying information is available to birth parents, adoptees, and other family members. Adoptees still do not have the right to access their original birth certificates, nor can birth parents obtain the names of their adopted child. Saskatchewan maintains a passive registry. In 2012, the UN Committee on the Rights of the Child expressed its concern that “adoption disclosure legislation has not been amended to ensure that birth certificate information is made available to adoptees as recommended in previous concluding observations (CRC/C/25/Add.215 para 31, 2003)”.151

9.13.2 Adoption Registers As with all aspects of the regulatory machinery relating to adoption, each province and territory independently determines which registers it will maintain and the information they will provide. British Columbia, for example, has a Birth Father Registry for the purpose of ensuring that notification of a proposed adoption placement is served on such a father and a Post-adoption Openness Registry which enables adoptive parents of a child under 19, and his/her pre-adoption parent or other relatives to register their interest in establishing some form of openness agreement. It is a means for applicants to exchange identifying or non-identifying information after an adoption order is granted. Ontario has an Adoption Disclosure Registry which records the fact that a party to an adoption is available to exchange information. The following can register: an adoptee (aged 18 or older); birth parents; and birth relatives (they can apply any time before an adoptee is 19 years old, but the reunion process can’t start until after the adoptee is 19). Alberta has a Post Adoption Registry in which the sealed adoption records for all granted adoptions completed in that province are maintained. Manitoba also has a Post Adoption Registry which provides non-identifying information and forms the basis for search and reunion services to eligible family members involved in an adoption granted in that province.

9.13.2.1

The Adopted Children Register

The Vital Statistics legislation provides the basis for each province and territory to maintain its own register of births which accommodates all adoption registrations; but not as a separate category.

151 See, the UN Committee on the Rights of the Child, 61st session, C/CAN/CO/3-4, October 2012,

at para 57.

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9.13.2.2

441

The Register of Intercountry Adoptions

There is no national register of intercountry adoptions, nor are these registered as a distinct category by individual provinces and territories.

9.13.3 Conditional Access The law governing access to adoption records in Canada is similar to that in the U.S. While there is some variation across the provinces, mostly the principle of access is conditioned by the right to file vetoes with the Vital Statistics Agency prohibiting the release of any birth registration or adoption order information. In Newfoundland, the Adoption Act 2013 provides for openness in the release of adoption information. Persons adopted under this or a former Act may, at the age of 19 or older, apply to Vital Statistics152 for copies of their original birth registration and adoption order. Birth parents may similarly apply, when an adopted person has reached their 19th birthday, for copies of: the adopted person’s original birth registration; the amended birth registration with the name following adoption; and, the adoption order with the adoptive parent information removed to respect their right to privacy. Adopted persons, at age 18 years, and birth parents who wish to maintain their confidentiality are provided with the opportunity to file a disclosure veto or no-contact declaration for adoptions finalized prior to April 30, 2003. The disclosure veto or no-contact declaration remains in effect until cancelled in writing or until one year after the death of the person who filed it. In Ontario the Access to Adoption Records Act 2008 provides for a disclosure veto allowing adoptees and birth parents involved in adoptions registered before September 1, 2008 to prevent the release of their names, which would otherwise be available upon request by any concerned party once the adoptee reaches the age of majority. An adopted adult or birth parent may apply for a disclosure veto in exceptional circumstances such as to prevent harm of a physical, sexual, or emotional nature.153 Also, in Ontario, the ruling of the Supreme Court in M.D.R. v. Ontario (Deputy Registrar General)154 concluded that the birth registry provisions of the Vital Statistics Act were discriminatory as regards lesbian parents as they infringed the applicants’ equality rights under Sect. 15 of the Charter. By the time the ruling took effect, in 2007, women in a same sex relationship had become legislatively entitled to be registered as ‘parent’ on their child’s birth certificate in cases of anonymous donor insemination.155 152 See, further, at: https://www.servicenl.gov.nl.ca/birth/accessing_records_under_adoption_act/ index.html. 153 See, Infant No. 10968 v. Her Majesty the Queen in right of Ontario, 2007 ONCA 787 (Can LII). 154 (2006), 81 O.R. (3d) 81. 155 See, further, Chambers, L., A Legal History of Adoption in Ontario. 1921–2015, op cit, at pp. 107–109.

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Again, in Alberta, for adoptions granted prior to January 1, 2005, birth parents and adult adoptees (18 years of age and older) may obtain identifying information about one another or they may file a disclosure veto in the Post Adoption Registry preventing the release of identifying information on the birth certificate or adoption information. For adoptions granted after that date neither birth parents nor adoptees can file a disclosure veto. So also in Manitoba where the operative date is March 15, 1999 when the Adoption Act came into effect. Since 2016, only the provinces of Nova Scotia, New Brunswick, Prince Edward Island and Quebec continue the policy of ‘closed’ adoption records, preventing birth mothers and adult adopted children from obtaining information about one another.

9.13.4 Tracing and Re-unification It has been noted that “searching in Canada is hindered by the policies which keep adoption records closed against access by parents and adoptees”. Even where a facilitating law exists156 : Some provincial governments maintain adoption registries. Some of these registries can take years before they make a “match” even if both parties have registered. Others will perform active searches on a discriminatory basis, e.g. for adoptees only but not for natural parents, siblings or grandparents.

The difficulties arising from an inconsistent approach to the sealing or unsealing of adoption records across the provinces and territories are compounded by the absence of any centralised data collection system together with the lack of a specialist agency with a nationwide search and reunion brief.157 The work of Origins Canada goes some way towards addressing the resulting problems for adoptees and their members of their family of origin.158

9.13.4.1

The Adoption Agency

The agency responsible for arranging the adoption will hold the files in which information subsequently sought by parties to that adoption is to be found. The latter will be entitled to at least access non-identifying information. In relation to the birth family this may include: the physical descriptions of the birth parents, their age and educational level, their religion, racial origin, interests, relationship, medical histories, circumstances at the time of the adoption and any other information considered non-identifying. For a birth parent or birth sibling, such information may include: the age and educational level of the adoptive parents, the length of their marriage, 156 See,

Origins Canada at: https://www.originscanada.org/adoption-records/searching-in-canadaresources/. 157 See, further, at: https://www.canadiancrc.com/Finding_your_birth_parents_Canada.aspx. 158 See, further, at: https://searchregistry.originscanada.org.

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whether they had other children, their motivation to adopt, their religion and interests as well as other information considered non-identifying. In Ontario, for example, the Child and Family Services Act 1990, as amended in 2005, requires an adoption agency to “give such information that relates to adoptions as may be prescribed to such persons as may be prescribed in such circumstances as may be prescribed”.159 All very well, but many adoption agencies deliberately destroyed their records—out of a well intentioned if perhaps misguided sense of respect for the privacy of the unmarried mothers.160

9.14 Conclusion Contemporary adoption is characterised chiefly by a reducing volume of annual orders in which the emerging dominant sources—intercountry, step-adoption and child care—are shaping the future characteristics of the Canadian adoption process. Adoption in Canada is an amalgam of disparate types—customary among the First Nations, for adults and children, kinship and intercountry, post-surrogacy, for heterosexual and same sex couples, and for step-parents—administered according to the different laws and policies of each province and territory. The children adopted domestically are drawn from the public care system—to a small but growing extent— but are also the sujects of private arrangements, and in the main they gravitate towards kinship, step-parent or other re-formed family situations. The intercountry route now most probably accounts for the majority of annual adoptions, increasingly as a sequel to surrogacy, sometimes as an expedient means of assimilating the related child of an immigrant family from their country of origin, and facilitated by the ease of cross-border arrangements with the U.S. with its excess of adoptable racially mixed children in care. The fact that an estimated 40–50% of annual adoptions are mediated through private adoption agencies is a significant indicator of an ethos shared with its U.S. neighbour. The patchy and often non-existent provision of pre-and post adoption support services, available on a cost free basis to all parties in all types of adoption, is notable, as is the similar disparity in ability to access identifying information. While recognizing the jurisdictional difficulties presented by federation, it seems unfortunate that the net result is an inability to provide a coherent picture of what constitutes contemporary adoption law and practice in Canada. Arguably, more could be done in terms of extending the functions of key national institutions—such as the Supreme Court, the Vital Statistics Agency, and the Canadian Revenue Authority— and co-ordinating those of key adoption nonprofits, to build a better system for collating nationwide data and forming agreed principles to frame the adoption process in Canada.

159 Child

and Family Services Act 1990, s 162(3)(2). Chambers, L., Misconceptions: Unmarried Motherhood and the Ontario Children of Unmarried Parents Act, 1921-1969, University of Toronto Press/Osgoode Society Press, (2007). 160 See:

Chapter 10

Australia

10.1 Introduction Adoption as a formal statutory procedure began with the Western Australian Adoption of Children Act 1896 and has always been restricted to ‘full’ rather than ‘simple’ adoptions. Since the first official records began in the 1940s, some 250,000 Australian born children have been adopted, nearly 150,000 during the 20 year period from 1951, of whom one-third were adopted by birth parents or relatives. In keeping with the experience of the U.K., the U.S. and other western societies,1 as Quartly, Swain and Cuthbert explain, the rate of annual adoptions increased in the 1960s, peaked in the early 1970s, and has been in decline ever since. Indeed, the 64% fall since 1994–95 resulted in only 310 adoptions in 2018–19 of which 82% were in respect of Australian born children. Nevertheless the ‘market in babies’, as they put it, continues2 : In the early years supply outstripped demand; needy babies were hard to place. Mid-twentieth century demand and supply grew together with adoption presented as the perfect solution to two social problems: infertility and illegitimacy. Supply declined in the 1970s and demand turned to new global markets. Now these markets are closing, but technology provides new opportunities and Australians are acquiring babies through the surrogacy markets of India and the United States.

This chapter begins by providing some background on the social and legal contexts and the emerging characteristics of adoption in Australia. It then identifies the significant trends in modern adoption practice, considers the main elements of current policy and outlines the prevailing legislative framework. The template of legal functions (see, Chap. 3) is then applied to reveal the actual mechanics of the process in 1 In

1988/89 there were 1501 adoptions; in 2002–04 they had fallen to 502; and in 2012/13 they reached 339. This constitutes a 77% decline since 1988–89 and a 32% decline over the last decade. See the Australian Institute of Health and Welfare report ‘Adoptions Australia 2012–13’ at para 4. See, further, at: http://www.aihw.gov.au/adoptions/. 2 See, Quartly, M., Swain, S. and Cuthbert, D., The Market in Babies: Stories of Australian Adoption, Monash University Publishing, 2013 (quote from website at: http://www.publishing.monash.edu/ books/mb-9781921867866.html). © Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_10

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action. The chapter concludes with a summary and assessment of the more distinctive and significant characteristics of the contemporary adoption process in Australia.

10.2 Background Adoption legislation has always been enacted at state rather than federal level and, with the exception of Queensland, has been and continues to be administered as a formal judicial process throughout Australia.3

10.2.1 The Social Context Giving Rise to Adoption In Australia, as in the U.K. and elsewhere, the introduction of a formal legal adoption procedure was a legislative response to public concerns regarding both the social circumstances of unmarried mothers and the vulnerable position of those who voluntarily undertook the care of children in the late nineteenth century.4 Adoption legislation was seen as the most appropriate legal means of regulating private parental decisions to relinquish children, protecting the homes voluntarily provided by longterm foster parents and opening up the possibility of secure family based care for many children languishing in the public care system. Unlike the U.K. (see, further, Sect. 6.2), the introduction of statutory adoption proceedings generated an immediate surge of applications.5 In New South Wales, for example, some 58,000 adoptions occurred between the first legislation in 1923 and the Adoption of Children Act 1965. This may well have been due to the common need of many families to regularise and legally secure their relationships with the large numbers of children shipped from England in the early years of that century6 and those orphaned and cared for by relatives in the post WWII years. 3 Queensland’s

Infant Life Protection Act of 1905 provided for the adoption of illegitimate children—adoptions were privately arranged and adoption contracts could be prepared by a solicitor and administered by the police (see http://classic.austlii.edu.au/au/legis/qld/hist_act/ ilpao19055evn19344/); and later, under the provisions of the Adoption of Children Act 1935, the Director of the Queensland Government’s Children’s Department had authority for granting adoption orders (see p. 116 of the Senate Community Affairs References Committee’s 2012 report on the ‘Commonwealth contribution to former forced adoption policies and practices’, https://www.aph.gov.au/parliamentary_business/committees/senate/community_aff airs/completed_inquiries/2010-13/commcontribformerforcedadoption/report/index) in 1996. 4 See, further, Quartly, M., Swain, S. and Cuthbert, D., Market in Babies: Stories of Australian Adoption, Monash University Publishing, 2013. 5 See, New South Wales Child Welfare Department, Annual Report 1921–25: “rich and poor alike are vying with each other to open their hearts and homes to these derelict children”, at p. 5 as cited in Marshall, A. and McDonald, M., The Many—Sided Triangle, op cit at p. 30. 6 See, for example, Bean, P. and Melville, J., Lost Children of the Empire, London, Unwin Hyman Ltd., 1989.

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Marriage and Family Breakdown

Since the end of World War II, rates of marriage have declined, the numbers of unmarried cohabiting couples have increased dramatically, as also have the numbers of non-marital children.7 More significant, perhaps, has been the increased rate of recourse to divorce: 32% of current marriages were expected to end in divorce and it was predicted that this may increase to 45% over the next few decades if those trends continued.8 In fact, Australian divorce rates began trending down in the 2000s. Having peaked in 1976 at 4.6 per 1000 population following the introduction of no fault divorce through the Family Law Act 1975, the (crude) divorce rate is now around 2.0 per 1000 population.9 Co-parenting, re-partnering, the formation of step and blended families after divorce, and same-sex partnering have added to the diversity of family and household forms in Australia. These developments have also impacted upon adoption as parents and new partners have sought to use it as a means of legally securing the boundaries of their re-formed family units.

10.2.1.2

Unmarried Mothers

As elsewhere, initially and for many years the role of the birth parent/s in the Australian adoption process was defined by the archetypal relinquishing unmarried mother. The stigma and financial hardship accompanying that role resulted in the voluntary and private relinquishment of many children. In March 2013, following publication of the ‘Forced Adoption’ report, the government led by Prime Minister Julia Gillard delivered an historic national apology in Parliament to the thousands of unwed mothers who were forced by government policies to give up their babies for adoption—the so-called ‘white stolen generation’10 —during the period 1940– 80.11 That apology and report marked the culmination of a period of introspection in which every Australian state and territory government, with the exception of the Northern Territory, made such apologies. They followed a series of independent and government led reviews, at federal and at state/territory levels, which examined 7 See,

for example, de Vaus, D.A., ‘Diversity and Change in Australian Families: Statistical Profiles’, Australian Institute of Family Studies, Melbourne, 2004 and Glezer, H., ‘Cohabitation and Marriage Relationships in the 1990s, Family Matters, vol. 47, 1997, pp. 5–9. See, further, Australian Government, Dept of Social Services, ‘Marriage Breakdown in Australia: Social Correlates, Gender and Initiator Status’, at: http://www.dss.gov.au/about-fahcsia/publications-art icles/research-publications/social-policy-research-paper-series/number-35-marriage-breakdownin-australia-social-correlates-gender-and-initiator-status?HTML#exec. 8 See, Carmichael, G.A., Webster, A. and McDonald, P., ‘Divorce Australian style: a demographic analysis’, Canberra, Research School of Social Sciences, Australian National University, 1996. 9 See the Australian Institute of Health and Welfare, website: https://aifs.gov.au/facts-and-figures/ divorce-rates-australia. 10 See, further, at: https://www.smh.com.au/politics/federal/white-mothers-of-stolen-children-alsodeserve-an-apology-20101207-18o7t.html. 11 See, further, at: http://www.huffingtonpost.com/2013/03/22/julia-gillard-australia-apologizesfor-forced-adoption_n_2932710.html.

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the historical record and concluded that the social policy governing its past use of adoption had at times been deeply flawed.12 The introduction of welfare benefits for unmarried mothers13 made government supported child care services available to single parents thereby allowing those with low incomes to consider educational or employment opportunities while continuing to bear parental responsibilities. As in the U.K. and elsewhere, this provision of financial support also resulted in a lessening of the social stigma traditionally associated with the role of a single mother, reducing the pressure previously felt by many in that position to surrender a child for adoption. However, not until the legal removal of ‘illegitimacy’ by the Status of Children Act 1974 in Victoria and Tasmania (followed thereafter in all other states)14 did the stigma of unmarried motherhood begin to fade. Against this background it is remarkable that in Australia many, indeed most, unmarried mothers retained their children. The advocacy and support services provided by the Australian Relinquishing Mothers Society (ARMS) undoubtedly played an important role. During 1959–1976, the peak period for adoptions, 60% of such mothers continued to care for their children; an interesting contrast to their counterparts in Ireland (see, further, Sect. 7.2.1.2). It is also noticeable that a consistent feature of domestic adoption in Australia has been the fact that by far the majority of children adopted (88% in 2005/6) were born to unmarried mothers. This proportion has remained relatively stable over the last two decades as confirmed by the latest adoption data available (for 2018–19) from the AIHW, which indicates that 90% of relinquishing mothers were not in a registered marriage at the time of their child’s birth.15

10.2.1.3

Abortion

Abortion remained an illegal procedure throughout the 1960s.16 Contraception did not begin to become widely available in Australia until 1974 when the Family Planning Association introduced the guidance and treatment which had been accessible in the U.K. for most of the previous decade. Currently, though contentious, abortions 12 For

example: 2012, Australia Senate Community Affairs References Committee, The Commonwealth Contribution to Former Forced Adoption Policies and Practices; 2004, Senate Community Affairs References Committee, Forgotten Australians: A Report on Australians who Experienced Institutional or Out-of -Home Care as Children; 2000, Parliament of New South Wales, Legislative Council, Standing Committee on Social Issues, Releasing the Past: Adoption Practices 1950–1998; and 1997, the Australian Human Rights Commission report, Bringing them Home. 13 This was effected, for example, in New South Wales by the introduction of the Child Care Act 1972 and subsequently throughout Australia by the Supporting Mother’s Benefit in 1973. 14 See, further, Charlesworth, S., Turner, J.N. , and Foreman, L., Disrupted Families, Federation Press, Sydney, 2000 at p. 149 and p. 207, note 7. 15 See, further, Adoptions Australia 2018–19, at: https://www.aihw.gov.au/reports/adoptions/adopti ons-australia-2018-19/contents/table-of-contents. 16 Not until the judicial decisions in Menhennit (1969) in Victoria and Levine (1971) in New South Wales did prosecutions for abortion gradually cease in all states (Tasmania in 2013) and not until the Abortion Law Reform Bill 2019, was it finally decriminalised abortion in NSW.

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are generally available as a legally recognized procedure across Australia, subsidized under Medicare, the government-funded public health scheme. Statistical data relating to abortion is generally difficult to obtain. South Australia and Western Australia are the only states which collect and publish data on abortions, and their data shows a similar trend. The annual rates of pregnancy termination have fallen in recent years, probably as a consequence of improved contraceptives. Projecting nationally, nationally on the basis of South Australia’s 2015 data, the ABC reported approximately 65,000 terminations in 2017.17

10.2.1.4

Assisted Reproduction Services

There is a natural correlation between declining fertility rates and the greater value now placed on parenting. In Australia, as in other modern western nations, the recent development of assisted reproduction technologies, such as in vitro fertilisation (IVF), has reduced the need for childless couples to rely wholly on adoption. In 2017, for example, there were 13,752 babies born in Australia following assisted reproduction treatment18 —almost 42 times the number of adoptions in (330) in 2017–18.19 The report, Assisted reproductive technology in Australia and New Zealand 2017,20 shows that there were about 74,942 such treatment cycles performed in Australia in 2017 with a 22.9% success rate for clinical pregnancies, and an 18.1% success rate for live deliveries from pregnancy. It is estimated that approximately 4% of Australian babies are born as a result of assisted reproduction treatment services, the availability of which is governed by legislation in the respective state or territory.21 Surrogacy Australia was estimated, in 2013, to be one of the highest per capita users of overseas commercial surrogacy22 and in 2016 was described described as “the world’s largest exporter of intended parents for surrogacy per capita”.23 This is associated with the absolute prohibition on commercial surrogacy arrangements across Australia, and residents in some Australian jurisdictions (the Australian Capital Territory, New 17 See https://www.abc.net.au/news/2017-12-13/the-rate-of-abortion-in-australia-is-lower-thanyou-think/9250122. 18 Newman, J.E., O. Fitzgerald, R.C. Paul, and G.M. Chambers. 2019. Assisted reproductive technology in Australia and New Zealand 2017. Sydney: National Perinatal Epidemiology and Statistics Unit, UNSW: https://npesu.unsw.edu.au/sites/default/files/npesu/data_collection/Assisted% 20Reproductive%20Technology%20in%20Australia%20and%20New%20Zealand%202017.pdf. 19 Australian Institiute of Health and Welfare. 2018. Adoptions Australia 2017–18. Canberra: Australian Institute of Health and Welfare, Australian Government: https://www.aihw.gov.au/get media/6d9374b3-974c-4ba3-8134-d59979733c87/aihw-cws-66-20190917.pdf.aspx. 20 See, further, at: http://www.aihw.gov.au/publication-detail/?id=10737423259. 21 See https://www.varta.org.au/regulation/legislation-and-guideline-overview. 22 See, Corderoy, A., ‘More Parents Defy Law with Overseas Surrogacy’, the Sydney Morning Herald, Sydney, 14th September 2013. 23 See https://www.bionews.org.uk/page_95560.

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South Wales and Queensland) are also prohibited from entering a commercial surrogacy arrangement outside Australia.24 Altruistic surrogacy (i.e. surrogacy undertaken on a wholly voluntary and not-for-profit basis) is legally recognized in Australia but is rarely used. Commissioning prospective parents have preferred to look outside Australia to the growing market of international commercial surrogacy notwithstanding, as noted in 2009 by the Standing Council of Attorneys-General, that this “risks the exploitation of poor families for the benefit of rich ones”.25 Re Evelyn26 emerged as the leading case at a time when surrogacy arrangements of any form were illegal throughout Australia.27 The Family Court of Australia upheld the ruling of the court at first instance which had broadly decided in favour of the biological mother who had reneged on the surrogacy arrangement; though both parties were ordered to share responsibility for long-term decisions regarding the child’s health, welfare and development. The decision was based squarely on the paramount welfare interests of the child and the court reiterated its ruling in Rice v. Miller 28 that there could be no presumption favouring a birth parent. On the other hand, in Re Michael: Surrogacy Arrangements29 the Family Court treated the parentage presumption arising from the donor’s name being on the birth certificate as rebuttable and determined that the gestational mother and her partner were the child’s lawful parents. However, it truth, by the time such matters reach the court the welfare of the child virtually dictates that, in the absence of evidence of actual harm, he or she should remain with their present carers. As Justice Ryan recently commented “it’s probably too late to ask whether—or to enquire into the legality of the arrangements that had been made. The court really needs to take children as it finds them”.30 Until 2006 those making surrogacy arrangements in Australia had to adopt the resulting child—necessitated by the need to counter the legal status of the child who would have been registered as born to the birth mother—but now that surrogacy has become a more accepted practice the law in most states usually automatically recognizes the commissioning parent/s as fully vested with parental rights and status— to the complete exclusion of the birth mother. Some have incorporated significant

24 See the Australian Government’s Department of Home Affairs website: https://immi.homeaffairs.

gov.au/help-support/glossary/international-surrogacy. the Standing Council of Attorneys-General, Australian Health Ministers’ Conference, Community and Disability Services Ministers’ Conference Joint Working Group, A Proposal for a National Model to Harmonise the Regulation of Surrogacy, January 2009, at pp. 4–5. 26 (1998) FLC 92–807. See, also, Re Evelyn (No. 2) (1998) FLC 92–187 where the High Court of Australia considered and dismissed the issue of appeal. 27 Commercial surrogacy continues to be illegal across Australia and adoption by gay people disallowed in South Australia. 28 (1993) FLC 92–807 at 85 106. 29 [2009] FamCA 691. 30 Ellison and Anor & Karnchanit [2012] FamCA 602 (1st August 2012), per Justice Ryan at para 87. 25 See,

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caveats: for example, in Western Australia under the Surrogacy Act 200831 and in South Australia under the Family Relationships Act 1975, altruistic surrogacy remains legal only for heterosexual couples (not for single persons or same sex couples).32 Such caveats, together with the ban on commercial surrogacy, are channeling the flow of commissioning prospective parents to seek surrogates overseas in countries such as the US, Canada, Greece, Ukraine, Georgia and Russia. Pascoe CJ has recently drawn attention to the scale of the phenomenon of Australians seeking commercial surrogacy services overseas and to the resulting legal issues33 : Over the past few years Australia has experienced a sharp rise in parents commissioning International Commercial Surrogacy (ICS) arrangements. In India alone, the number of Australian couples seeking surrogate mothers has risen by over three hundred per cent over the past five years. This growth has occurred in the context of widespread media support, focused on the personal narratives of commissioning parents, and in spite of Australian laws criminalizing the practice of commercial surrogacy.

He went on to warn that: This creates a tension between two significant policy goals. On the one hand there is the federal policy of protecting the best interests of children. However, on the other hand there is the state and territory policy goal of protecting women and children from ‘commodification’ and exploitation.

With commendable restraint he concludes: It is questionable whether developed countries should be involved in exploiting the vulnerability of women in developing countries.

Or, more bluntly: Are babies commodities to be planted and harvested?34

31 This was comprehensively reviewed by Dr. Sonia Allan for the WA Minister for Health, resulting in a two-part report (dated January 2019)—see https://ww2.health.wa.gov.au/Reports-and-public ations/The-Review-of-the-Western-Australian-Human-Reproductive-Technology-Act. The Allan Report made 122 recommendations, but it appears no subsequent legislative changes have yet been made in WA. 32 Following an extensive independent review of South Australia’s surrogacy laws by the SA Law Reform Institute (SALRI), the Surrogacy Bill 2019 was passed in December 2019. Effective from 2020, this Act allows single men and women to pursue or access a surrogacy arrangement, not only heterosexual or same-sex couples who are unable to conceive or carry a baby themselves. See https:// www.premier.sa.gov.au/news/media-releases/news/surrogacy-now-possible-for-more-families. 33 See, Pascoe, CJ., ‘Issues of Forced Adoption and International Commercial Surrogacy, Federal Court of Australia, Melbourne (2nd October, 2013). 34 Citing, Achmad, C., ‘Contextualising a 21st Century Challenge: Part Two Public International Law Human Rights: Why are the Rights and Interests of Women and Children at Stake in International Commercial Surrogacy Arrangements’, New Zealand Family Law Journal, 2012.

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While altruism may motivate many such prospective parents, others are engaging in what has recently been depicted by Justice Ryan in Mason v. Mason35 as “rampant forum shopping by couples seeking the best surrogacy prices and conditions”. The recent case of a Down’s Syndrome child being rejected by a commissioning Australian couple and left in the care of his impoverished Thai surrogate mother (who had earlier refused an abortion, when the condition became apparent, because of her Buddhist beliefs) has focused attention on such exploitive forms of surrogacy—not least because in this instance the arrangement was illegal in both countries: Australia and Thailand prohibit commercial surrogacy (the surrogate was paid $15,000); and Thailand restricts surrogacy to arrangements between relatives.36 In 2016, the Australian House of Representatives Standing Committee on Social Policy and Legal Affairs inquired into and reported on the regulatory and legislative aspects of international and domestic surrogacy arrangements in Australia.37 The Committee’s report made ten recommendations, the first and arguably most important of which was that the practice of commercial surrogacy should remain illegal in Australia.

10.2.1.5

Increase of Children in Public Care

In Australia in the 1980s and 90s, the emphasis the provision of statutory child protection and out-of-home care services was on prevention and early intervention. In the period 1983–1993 the number of children in care decreased by 29% but this trend reversed following a sharp increase in reported cases of child abuse in the early 1990s.38 In fact, as of 30 June 2012, according to the Australian Institute of Health and Welfare, almost 41,000 children across Australia were the subjects of care and protection orders. This represented nearly a doubling of such orders between 2000 and 2011.39 Between June 2015 and June 2017, the number of children in out-ofhome care rose 10% (from 43,400 to 47,900) before falling 5% to 45,800 in 2018 and then 2% to 44,900 in 2019.40 Foster Care On June 30th 1998 there were 14,470 children in out-of-home care systems across Australia of which 87% were in home based care arrangements (including foster care and relative/kinship care) rather than facility-based care. At that time, over 35 [2013]

FamCA 424 at para 4. further, BBC News, 2 August, 2014, at: http://www.bbc.co.uk/news/world-asia-28617912. 37 See https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_ Legal_Affairs/Inquiry_into_surrogacy/Report. 38 Between 1988 and 1994 there was an annual increase of approx 9% in substantiated child abuse cases. The subsequent downward trend in the rate of children subject to orders from 6.5 per 1000 children in 2007–08 to 6.1 in 2011–12 was reversed by a rise from 6.1 to 7.4 during the following year. 39 See, Australian Institute of Health and Welfare at: http://www.aihw.gov.au/child-protection/. 40 Ibid. 36 See,

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40% had been in care for two or more years. The Australian Institute of Health and Welfare statistics reveal that 12,240 children were admitted to out-of-home care during 2011/12. The total population in out-of-home care across Australia on 30 June 2012 was a record 39,621, of which 44% were in foster care. Almost 68% had been in out-of-home care for two or more years. In 2018–19, 12,223 children were admitted to out-of-home care and the total population in out-of-home care on 30 June 2019 was 44,906; the proportion in foster care was 39%, and 67% had been in out-of-home care for two years or more.41 Residential Care The Australian Institute of Health and Welfare statistics show that of the 39,621 children in out-of-home care on 30 June 2012, only 5% were placed in residential facilities. In 2018–19, while the statistics show that the number children in out-ofhome care had risen to 44,906, they also show that the proportion in residential care facilities remained at 5%. Family The most interesting fact revealed by the Australian Institute of Health and Welfare statistics is the proportion of children—taken into care under the authority of care and protection orders—that are placed in the care of relatives/kin: this was the case for 47% of the 39,621 children in out-of-home care on 30 June 2012. By 2018–19, the proportion of the 44,906 children in out-of-home care who were placed with relatives/kin had increased to 52%. Placed for Adoption The State Children’s Relief Act 1881 introduced a form of adoption as an early gateway for children to exit the public care system in New South Wales. As explained by Marshall and McDonald42 : The State Children’s Relief Act also authorised a form of adoption by which a person could apply to have a child placed in their care. Parents who applied in this way to adopt were subject to the same process of supervision as other boarding out parents, and to the same risks of the child being removed from their care. The difference was that they were not paid the boarding out allowance. Similar forms of adoption were practiced in all states… In all states some form of boarding out provided the pathway to later adoption legislation.

41 Ibid. 42 See,

Marshall, A. and McDonald, M., The Many—Sided Triangle, Melbourne University Press, Victoria, 2001 at p. 24.

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10.2.2 Resulting Trends in Types of Adoption In 2012–13, a snapshot of adoption in Australia revealed the following43 : • There were 339 adoptions in Australia (down from 384 in 2010–11; 576 in 2005– 06)—38% were intercountry (56% in 2010–11; 73% in 2005–06) and 62% were domestic of which 16% were ‘local’ and 46% ‘known’ (16% and 32% in 2010–11; 10% and 16% respectively in 2005–06). • 61 of intercountry adoptions were from Hague countries and 68 from non-Hague. • For ‘known’ child adoptions, 70 or 45% were by step-parents and 81 or 52% by carers, usually foster parents. • For all adoptions, half the children were less than 5 years old (91% of local and intercountry adoptions in 2005–06). 87% of Australian adoptions were ‘open’ (i.e. all parties agreed to some contact). The contrast with the findings reported earlier by Selman and Mason are interesting44 : The role of adoption as an option has declined in recent years with only 543 adoptions in 1998/9 of which 244 were intercountry adoptions, 127 were traditional ‘stranger adoptions, 48 carer adoptions and 124 step-parent adoptions. By 2002–03 the number of adoptions had fallen to 472, of which 278 (59%) were intercountry adoptions and 116 (25%) were ‘known’ (step-parent; carer or other relatives) adoptions. In Australia, in 1999 there were 14,667 children in out-of-home care (30 per 10,000 children under the age of 18) of whom 87% were in home-based arrangements. Almost half of the small number of adoptions from care were infants aged under 1.

By 2018–19, the Australian Institute of Health and Welfare was able to report a quite different picture45 : Over the past 25 years, adoption numbers declined by 64%—from 855 in 1994–95 to 310 in 2018–19—but since a low of 278 adoptions in 2015–16, there has been a rise of 12%. This is due to a 40% rise in known child adoptions from 2015–16 to 2018–19, which can be attributed to a higher number of adoptions by known carers.

In 2018–19, known adoptions comprised 68% of all finalised adoptions, with adoption by carers, such as foster parents, being the most common (67% of all known child adoptions). The majority of known child adoptions by carers (165, 43 See, Australian Institute of Health and Welfare, report ‘Adoptions Australia 2012–13’. See, further, at: http://www.aihw.gov.au/adoptions/. In this context, ‘known’ child adoptions, are adoptions of children who are Australian residents, who have a pre-existing relationship with the adoptive parent(s) and who are generally unable to be adopted by anyone other than the adoptive parent(s). ‘Known’ child adoptions include adoptions by step-parents, foster parents, other relatives and carers. ‘Local’ adoptions are those of Australian children adopted by Australian citizens who have no relationship to the adoptee. 44 See, Selman, P. and Mason, K., Alternatives to Adoption for Looked After Children, Report to Adoption Law Review Group of Scottish Executive, January 2005 at: http://www.scotland.gov.uk/ Publications/2005/06/27140607/07142#6. 45 See, further, at: https://www.aihw.gov.au/getmedia/d0c1e19c-881a-4176-829c-fa37d62f8bae/ aihw-cws-71.pdf.aspx.

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representing more than 78%, of 211) occurred in New South Wales. In 2018–19, nearly all (98%) of local adoptees, and 65% of intercountry adoptees were aged under 5. By comparison, less than 1 in 5 known child adoptees (17%) were aged under 5. In relation to previous decades, the children now being adopted tend to be older, with health or behavioural issues; be adopted by step-parents, foster parents or relatives; and are more likely to be born in Australia (82% in 2018–19) than overseas.46

10.2.2.1

Third Party Adoptions

Adoption in Australia peaked in the early 1970s. Thereafter, to satisfy their wishes for a family, prospective adopters found they often had to consider either Australian children with ‘special needs’ or intercountry adoption. This new and broader interpretation of a traditional practice was accompanied, often necessarily, by a move towards greater openness in adoption. Domestic The number of domestic adoptions fell from 1107 in 1989 to 132 in 2004, or from 74% to 26% of total annual adoptions.47 However, somewhat against the trend, there were 211 ‘known’ child adoptions in 2018–19. Nevertheless, by the turn of the century, adopting a ‘normal’ healthy baby born within the country had become an unlikely prospect for most infertile couples in Australia.48 Child Care and Protection A distinctive characteristic of adoption in Australia, relative to other modern western societies, has been the low rate of child care adoptions due to an alternative policy emphasis on family reunification. For example, in 2000, it was estimated that in Australia the rate of such adoptions was 1% compared with 6–7% in the U.S. and 4% in the U.K.49 There have been strong indications, in New South Wales at least, that the policy is changing to favour adoptions from care. Indeed in 2018–19, carer adoptions accounted for 67% of all ‘known’ adoptions, the majority of which (165, more than 78%) occurred in New South Wales. Whenever statutory intervention is necessary, the preferred policy has been to work towards family reunification rather than countenance the permanent severance of nonconsensual adoption. However, during the last decade or so there have been some strong indications that this policy may be changing to one of promoting adoption as a means of ensuring permanency for children in long term care where reunification

46 In

2012–13, 210 children were the subject of domestic adoptions and 129 were intercountry. U.N. Dept of Economic and Social Affairs, Child Adoption: Trends and Policies, 2009, at p. 72. 48 Ibid. at p. 106. 49 See, Report on Inquiry into Adoption of Children from Overseas’ at Appendix A, Section 1.6. 47 See,

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with family of origin is not feasible. As noted by the Australian Institute of Health and Welfare50 : Commencing around 2012–13, where reunification with the family of origin was not appropriate, some jurisdictions have increased the focus on adoption as a possible means of creating stability for children under the long-term care of state and territory child protection services. This, in turn, has resulted in an increase in known child adoptions by carers.

In 2018–19, the highest proportion of known adoptions (67%) were in favour of carers, usually foster parents: this reflects the recent championing of that policy, primarily implemented by the New South Wales Government, but also encouraged by the Australian Government. Overall, as adoption rates have declined, the proportion of orders made in favour of such carers has markedly increased: from 5% of all adoptions in 2003–04, to 24% in 2012–13 and reaching 67% in 2018–19.51 As in the UK and the US, for the children concerned the opportunity to exit the public care system through their adoption by those who have long cared for them may very well be in their best interests. However, the increase in numbers entering the system raises the perennial question—would increased state investment to support vulnerable families, and restore safe parental care following a child’s admission to the system, obviate the need for such an exit strategy and better serve the long-term welfare interests of many children? In Australia the statutory child care framework, and its constraints, do not always apply to the children for whom adoption placements might be sought. The legal status of many children in the care of the state was and is that of a ‘ward’ rather than the subject of a child care order.52 The decision as to whether to retain a child in wardship rather than seek a care order is one for the relevant state department. This contrasts with the equivalent situation in the U.K. where wardship is not a discretionary option for local authorities which must instead look to the statutory framework for designation of the legal status of a child for whom parental care is not available or is inappropriate. For many such children in Australia the full complement of parental rights and duties are vested through wardship in the state, which leaves the latter with full discretion to pursue the adoption option. Indeed, it has been observed that the authority of the Family Court of Australia is very similar in scope to the parens patriae jurisdiction of the Court of Chancery in England as devolved to the High Court when exercising its inherent wardship powers.53 So, in

50 Op

cit, at p. 38. 2016–17, there were 143 carer adoptions (representing 71.1% of all known adoptions); in 2017–18, the figures were, respectively, 147, and (63.1%); while in 2018–19, they were 142 and (67.3%). So, the proportion of carer adoptions is relatively stable. 52 See, further, Care Leavers Australia Network (CLAN), a support and advocacy group for people brought up in care away from their family as state wards or Home children raised in Children’s homes, orphanages or other institutions, or in foster care, at: http://www.clan.org.au. 53 See, AMS v. AIF; AIF v. AMS (1999) 199 CLR 160 per Gaudron J at p. 189. 51 In

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theory, more children in the Australian than in the UK public care system could be placed for adoption—which in practice clearly does not happen. Children with Special Needs Initially, adoption was not seen as applicable to children with special needs—defined as being more difficult to place due to emotional, health or behavioural difficulties, membership of a sibling group, being an older child or Aboriginal or belonging to a minority group or any combination of the foregoing.54 Instead such children were placed in specialist foster care or group care facilities.55 However, adoption was in due course extended to benefit disabled and other ‘hard to place’ children. From the late-1970s, the state child care departments began to successfully place for adoption increasing numbers of children with special needs who had been relinquished by their parents and had become wards of the state; parental consent in such circumstances was not an issue. In Queensland, for example, a Special Needs unit was set up in the early 1980s specifically to facilitate such adoptions. Attracting appropriate prospective adopters, however, could not be achieved by simply diverting the traditional type of applicant but most often necessitated actively recruiting people with relevant skills and providing them with ongoing support. While some government agencies established specialised units to further this work, many voluntary adoption agencies also contributed.56 In recent years the number of Australian children with special needs available for adoption has decreased57 due, it has been suggested, to the development of specialist foster care services to cater for such children.58 However, a noticeable trend in contemporary intercountry adoption has been the introduction by sending countries (e.g. China, India and the Philippines) of programs specifically catering for the adoption of special needs children and adjusting the criteria for adopters accordingly. It has been estimated that of the 112 children adopted from mainland China between 2009 and 10, seven had special needs. The Committee on the Rights of the Child has expressed its concern about the paucity of information available in Australia on disabled children, especially when it comes to data on disabled indigenous children, alternative care for children with disabilities and children with disabilities living in remote or rural areas.59 The Committee also noted that a governmental working group is addressing the issue 54 See, Australian Institute of Health and Welfare, report ‘Adoptions Australia 2012–13’ at para 2.3. See, further, at: http://www.aihw.gov.au/adoptions/. 55 See, Barth, M. (1998) who documents a clear trend towards the development of specialist foster care services to cater for children with special needs. 56 Barnardos in New South Wales, for example, established a ‘Find-a-Family’ Centre in 1985 which focussed exclusively on finding placements for children with special needs. 57 Whereas in 1990/91, 28 infants with special needs in Queensland required adoption, in 1999/00 there were none and only 1 required such a placement in 2000/01. 58 See, Barth, M.,1998, op cit. 59 See, Concluding Observations of the Committee on the Rights of the Child, Australia, op cit, 2005, at para 45.

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of sterilization of children with so-called “decision-making” disabilities and urges the State Party60 : To prohibit the sterilization of children, with or without disabilities, and promote and implement other measures of prevention of unwanted pregnancies, e.g. injection of contraceptives, when appropriate.

Certainly any government policy that mandated sterilizing children with a learning disability would seem an aberrant foray into eugenics. Intercountry The airlift of some 300 orphans from Vietnam in the mid-1970s marked the beginning of what became a significant trend—the adoption in Australia of children born elsewhere. The numbers of such children adopted in Australia peaked at 420 in 1989–90 and thereafter steadily decreased until 1992/3 when only 227 were adopted, before experiencing a resurgence at the turn of the century. A total of some 5000 children arrived in Australia as a consequence of intercountry adoptions over a 20 year period ending in 1999.61 Recourse to other countries resulted in a more than tripling of intercountry adoptions from 127 in 1980–81 to 421 in 2005–06; representing a proportionate increase from 4 to 73% in annual adoptions during that period. In 2009 there was a further surge when adoptions began from China, Ethiopia, South Korea and elsewhere. However, in recent years there has been a sustained decline in intercountry adoptions: down from 394 in 1988–89 to 129 in 2012–13, reaching 57 in 2018–19: a fall of 87% since the peak in 2004–05. This is attributable largely to traditional sending countries having increased their domestic coping capacity and consequently having fewer children available for foreign adopters. In 2018, the India–Australia adoption program was reactivated on a small scale and in April 2019, Queensland and the Northern Territory began assessing a small number of prospective adoptive parents for that program. The Australian Government continues to have a number of bilateral agreements with sending countries that are not parties to the Hague Convention but which it judges to be Hague compliant (from which there were 32 adoptions in 2018–19), and it accommodates a small number of ‘private’ adoptions granted overseas. By far the majority of children have traditionally come from Korea but recent years have witnessed an influx of children from China and the Philippines. By 2018– 19, 96% of finalised intercountry adoptions were for adoptees from Asian countries. The most common country of origin was South Korea (30%), followed by Taiwan and the Philippines (26% each).62 It is apparent that children adopted from outside the jurisdiction tend to be older than those adopted within. For example, in 2005–06 almost two-thirds of domestic adoptions were of infants (aged under 1 year), compared with less than half of 60 Ibid.,

para 46. report by the Post Adoption Resource Centre of New South Wales as cited in Marshall, A. and McDonald, M., The Many—Sided Triangle, op cit at p. 196. 62 See, Australian Institute of Health and Welfare at: https://www.aihw.gov.au/getmedia/d0c1e19c881a-4176-829c-fa37d62f8bae/aihw-cws-71.pdf.aspx. 61 See,

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children adopted from other countries, while in 2012–13 almost half of all domestic adoptions were in relation to children aged less than one year but this was true of less than a fifth of intercountry adoptions.63 This, as Penny Mackieson points out,64 is largely a consequence of the fact that in Australia the first preference is for domestic adoption, which mostly involves children relinquished as infants, often as newborns. The less popular option of intercountry adoption involves children who will have been through a process of matching with prospective local adopters in the country of origin before being made available for matching with overseas. So, ICA children tend to be older than domestic adoptees because the slow nature of the overseas country processes generally delays the placement of the child matched with their Australian adoptive parents.65 Transracial Its geographical location and immigration policy, coupled with the presence of the Indigenous people, has always provided opportunities for developing a cross racial and cross cultural dimension to the Australian adoption experience. Transracial adoption probably had its roots in settler adoptions of Indigenous children—discouraged since the introduction of the Aboriginal Child Placement Principle—which can be traced back to 1789 in the colonial history of New South Wales.66 In more recent years this strong history of transracial adoption has been further reinforced by intercountry adoptions from countries such as Vietnam and Korea. For example, the adoption agency Australian Families for Children Inc.,67 founded in 1980, had a record of facilitating the adoption of more than 400 children from Bolivia, Chile, Colombia, Costa Rica, Peru and India into Australian families.68 Indigenous The adoption of Indigenous children has a traumatic history. The ‘stolen generations’ scandal—from approximately 1869 to 1969—saw many thousands of children forcibly removed from their Indigenous parents of whom 17% were adopted by nonIndigenous Australians. The Aboriginal and Torres Strait Islander Child Placement Principle has, since the 1970s, required preference to be given to an Indigenous placement when a child has to be found a home away from their birth family. Currently, adoption is a rarity for Indigenous children: only 5 adoptions occurred in 2012–13; 3

63 See,

Australian Institute of Health and Welfare, Adoptions Australia 2012–13, at: http://www. aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129545513. 64 Note to author (20.06.2020). 65 See, also, Adoptions Australia 2018–19, (AIHW), op cit, at p. 18. 66 See, Harvey, I., ‘Transracial Adoption in Australia’, Adoption & Fostering, vol. 6 no. 1, 1982, pp. 43–49. 67 The charity registration of Australian Families for Children Inc. was revoked, effective 31 July 2017 [see https://www.acnc.gov.au/charity/e8685e36cf82437a8031794c5f580d50]. 68 See, further, at: http://www.australiansadopt.org/AboutUs.php.

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in 2015–16; and 12 in 2018–19 (the highest number in 25 years, equal to the number in 1994–95)69 (see, further, Sect. 21.4).

10.2.2.2

First Party Adoptions

Throughout Australia, s 98 of the Marriage Act 1961 provided, and ss 89–91 continues to provide, that the subsequent marriage of a child’s parents to each other ‘legitimated’ that child. However, adoption was the only legal means whereby a birth parent who married someone other than the child’s parent could ‘legitimate’ their pre-marital child. This led to adoption becoming an attractive option for step-parents. Nonetheless, as the Australian Institute of Health and Welfare reports70 : While the numbers of Australian children adopted by relatives and non-relatives fell overall from 1994–95 to 2018–19 (79% and 41% declines, respectively), and proportions of each fluctuated since the mid-1990s, the number of adoptions by non-relatives remained higher than adoptions by relatives in all but 2 of the 25 years. Of Australian children who had an adoption order finalised in 2018–19, 73% were adopted by non-relatives.

Many such arrangements are informally agreed between the parties or are formalized by written agreements or through recourse to other more appropriate private family law orders. Step-Parents From the early 1980s adoption by step-parents and other relatives declined.71 It has been estimated that in 1989 step-parents and other relatives accounted for some 500 children, or 45% of all domestic adoptions, but by 2004 the respective figures were 34 and 26%.72 As the Australian Institute of Health and Welfare reports73 : Between 2000–01 and 2018–19, the proportion of known child adoptions by step-parents fluctuated, peaking at 77% in 2000–01 and falling to a low of 28% in 2016–17. In 2018–19, step-parent adoptions accounted for 31% of known child adoptions.

The steady overall fall is largely due to the availability of alternative orders coupled with a general acceptance of the principle that adoption is seldom the most appropriate order in such circumstances. All Australian jurisdictions continue to retain 69 See https://www.aihw.gov.au/getmedia/d0c1e19c-881a-4176-829c-fa37d62f8bae/aihw-cws-71. pdf.aspx, p. 52. According to which 126 Indigenous children were adopted during the 25-year period from 1994–95 to 2018–19; and 52 (41%) of them were adopted by Indigenous Australians (at p. 53). 70 See, Australian Institute of Health and Welfare, Adoptions Australia 2018–19, at: https://www. aihw.gov.au/getmedia/d0c1e19c-881a-4176-829c-fa37d62f8bae/aihw-cws-71.pdf.aspx. 71 See, Turner, J.N., ‘Adoption or Anti-Adoption? Time for a National Review of Australian Law’, 2 JCULR 43 (1995) for evidence that applications from step-parents and relatives, during the 1970s and early 1980s, dominated adoption proceedings in Australia. 72 See, UN Dept of Economic and Social Affairs, Child Adoption: Trends and Policies, 2009, at p. 72. 73 See, Australian Institute of Health and Welfare, Adoptions Australia 2018–19, at: https://www. aihw.gov.au/getmedia/d0c1e19c-881a-4176-829c-fa37d62f8bae/aihw-cws-71.pdf.aspx.

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legislative provisions for step-parent and other forms of family adoption but access is now subject to a ‘best interests’ or exceptional circumstances test.74 An assessment of a step-parent’s attitudes and understanding is now required together with the exploration of matters such as motivation, the alternative options, and the understanding of all parties regarding the effect of adoption on relationships within the family and extended family. The quality and duration of an applicant’s relationship with the child concerned will be of crucial significance.75 Kinship Generally, the use of the statutory adoption process by relatives is now discouraged partly due to a perception that this may cause confusion and distortion to biological relationships.76 The use of that process for Indigenous children has been similarly discouraged in line with the Aboriginal and Torres Strait Islander Child Placement Principle. However, customary adoption has always played, and continues to play, a prominent role within the Indigenous communities.77 In that context ‘kinship’ has a wide interpretation and refers not just to family and blood relations but also includes other significant community relationships (see, further, Sect. 21.4.3.4).

10.3 Overview of Adoption Law and Policy Adoptions in Australia peaked in 1971–72 and have since, in common with all other western societies, decreased steadily. This has been accompanied by much policy deliberation but little in the way of transformational legislative developments.

10.3.1 Adoption Principles, Policy and Alternatives Modern adoption law, policy and practice in Australia has been greatly influenced by the fact that all states and territories subscribed to the principles outlined in the Council of Social Welfare Ministers’ National Minimum Principles in Adoption 74 In 1999/00, only 114 children were adopted by step-parents in Australia. See, further, Bates, F., ‘Children of Mansoul Adopted Children and Natural Parents: Some Comparative Developments’, (1989) 63 Australian Law Journal 314. 75 See, for example, the Adoption Act 2000 (NSW) which makes an adoption order in favour of a step-parent conditional upon an established three year care relationship between applicant, birth parent and child and requires that the child be at least 5 years of age. In addition, relevant consents must be available and it must be proven that adoption is better than any other legal option for promoting the child’s welfare interests. 76 In Western Australia, for example, adoptions by relatives other than step–parents are no longer permitted under the 2003 amendments made to the Adoption Act 1994. 77 See, for example, McKillop, K. ‘Torres Strait Islander customary adoption: Providing legal recognition for alternative paradigms of family in Australia’ (2009), Chapter 7 in Other people’s children: Adoption in Australia, Spark, C., and Cuthbert, D. (eds).

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1993, as well as to the U.N. Convention on the Rights of the Child 1989 and the Hague Convention 1993. The result has been a broad consensus among the states and territories as to the principles, policy and parameters of adoption law and a strong similarity in adoption practice.

10.3.1.1

Principles

The Welfare Interests of the Child There is a presumption in Australian family law that the birth parent/s are best placed to safeguard the welfare interests of their child and consequently there is a strong preference for retaining ties to birth parents. Section 63E of the Family Law Act 1975, as amended, requires the court to treat the best interests of the child as the paramount consideration; in so doing the court will have due regard to the wishes of that child. As was explained by the Family Court of Australia in R and R: Children’s Wishes78 where it was “clear that a court must take children’s wishes into account, but is not bound by them”.79 Openness In the latter half of the 1970s most states and territories began to move away from the traditional or ‘closed’ model of adoption. The use of orders subject to contact conditions and the gradual recognition of post-adoption information rights contributed to the development of a more ‘open’ approach which first gained legislative recognition in Victoria with the introduction of the Adoption Act 1984. Thereafter, as has been said, “‘openness’ became the leitmotiv of the reformers”.80 Open adoption, usually involving some form of contact between birth and adoptive families after a child is adopted, is now practiced in varying degrees throughout Australia. In New South Wales, following recommendations made by the Law Reform Commission (NSW), the provisions of the Adoption Act 2000 (NSW) enable the parties to jointly agree in advance of proceedings a plan for post-adoption contact and exchanges of information.81 In Western Australia and Queensland82 ‘openness’ is given legislative effect through similar provisions. In Victoria and the Australian Capital Territory while there is no requirement in relation to adoption plans, legislative provision does allow for the making of adoption orders subject to agreed conditions regarding information exchange and ongoing contact. Again, in Tasmania and 78 (2002)

FLC 93–108. 096 at 88.297. per Nicholson, C.J., Holden, J. and Monteith J. 80 See, Turner, J.N. , ‘Adoption or Anti-Adoption? Time for a National Review of Australian Law’, 2 JCULR 43, 1995 at p. 45. Also, see, Barth, M., ‘Risks and Benefits of Open Adoption’, in The Future of Children, vol. 3, no. 1, 1993. 81 See, Law Reform Commission Report 81, Review of the Adoption of Children Act 1965 (NSW), (1997). 82 The Adoption Act 2009 is the primary adoption legislation in Queensland. The Adoption and Other Legislation Amendment Bill 2016—passed by the Queensland Parliament on 02 November 2016—introduced adoption plans. 79 Ibid.,

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the Northern Territory there is no provision for adoption plans but before making an order the court is required to be satisfied that any proposed arrangements for information exchange and/or contact have been taken into account. In South Australia there is provision for open adoption and for this and other matters with a bearing on a child’s welfare interests to be formally agreed by the parties after the issue of an adoption order. Family group conferences have a legislative basis in the child protection laws of South Australia, New South Wales and Queensland which facilitates openness in planning adoption or other forms of permanency placement. Since 1989–99, “the proportion of local adoptions where the birth and adoptive families have agreed to allow some form of contact or information exchange has generally been more than 80%”.83 In 2005–06, agreements made at the time of adoption indicated that the majority of domestic adoptions were ‘open’, with only 5% requesting ‘no contact or information exchange’. By 2012–13, this was true of 87% of local adoptions. Moreover, as carer adoptions—where openness is axiomatic— rose by 306% between 2008–09 and 2018–19, this served to further dispel secrecy from the Australian adoption process.

10.3.1.2

Policy

Throughout Australia, the policy issues arising for consideration during the different adoption law review processes, conducted at different times, were much the same. These included: • Determining the objectives and principles underpinning contemporary, child focused adoption legislation. • The development and application of the Aboriginal and Torres Strait Islander Child Placement Principle in adoption legislation and practice. • The circumstances under which the making of an adoption order in favour of a relative or step-parent is warranted. • Accommodating within any future legislative framework the Government’s responsibilities in respect of intercountry adoption under the United Nations Convention on the Rights of the Child 1989 and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. • Provision for how and when consent is obtained, the counselling and information required before consent is given, who can or should give consent (i.e., parents aged under 18, birth fathers, older children), and the revoking and dispensation of consent.

83 See,

Australian Institute of Health and Welfare, report ‘Adoptions Australia 2012–13’ at p. 26. See, further, at: http://www.aihw.gov.au/adoptions/.

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• The identification of reasonable and relevant eligibility criteria for selecting prospective adoptive parents that do not exclude people solely because of their age,84 marital status, impairment or sexuality. • Provision for birth parents’ preferences when matching children requiring adoption with prospective adoptive parents, including circumstances where overseas adoption authorities have criteria regarding the placement of overseas born children with adoptive parents in Australia. • Determining whether the legal process of adoption, including the making of adoption orders, should be governed by courts and tribunals or by an administrative body. • The role of the state as provider of ongoing support services for adopted children, birth families and adoptive parents once an adoption order is made. • Options for the future delivery of adoption services including provision of counselling and support services, the accreditation of non-government agencies to provide some adoption services, fees for and the cost of adoption services and data collection. However, a recent and significant change of policy in New South Wales may well eventually also influence developments in other states and territories. The government there decided to give legal preference for vulnerable children to be available for nonconsensual adoption, rather than leave them exposed to the probability of multiple foster-care placements, if their birth parents are deemed unable or unwilling to care for them. As the Community Services Minister has explained85 : The first preference is for children to have lived with their own families, but when that is clearly not possible, when there are clearly no relatives available who could look after the child and would become the child’s guardian, then in my view we are better to consider adoption than to go to foster care where the child inevitably has a range of carers and a very unstable childhood.

The intervening years indicate that these views may not necessarily reflect the opinions and policies of governments in other Australian jurisdictions. Indeed, there has been significant resistance to an apparent change in policy favouring adoptions from care.86 In relation to intercountry adoption, government policy currently has a focus: on streamlining the process relating to Hague compliant countries; while also continuing to manage and streamline its existing bilateral agreements with non-Hague countries such as Taiwan and South Korea so that full adoptions will be recognised automatically in Australia. Given that 56% of intercountry adoptions in Australia were from 84 The National Minimum Principles in Adoption refer to a maximum age difference of 40 years between adopter and child for a first placement and 45 years for any subsequent placement (para 6(1)). 85 See, the Community Services Minister Pru Goward interview on ABC Radio (Thursday, March 20th 2014), at: http://www.theaustralian.com.au/news/latest-news/no-forced-adoption-for-aborig inal-children/story-fn3dxiwe-1226860324697. 86 For example, in Victoria. See, further, at: https://ccyp.vic.gov.au/upholding-childrens-rights/sys temic-inquiries/permanency-amendments-inquiry/.

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Taiwan and South Korea in 2018–19, the latter policy is important though, as Penny Mackieson comments “not as important as expatriate adoptions”.

10.3.1.3

Adoption Alternatives

The availability of alternative orders has contributed to the overall trend of annual decline in recourse to adoption. Custody/Care Orders These place a child into the custody of the state or territory minister, or department responsible for child protection, or a non-government agency. This order usually makes the child protection department responsible for the daily care requirements of the child, while the parent retains legal guardianship. This has traditionally been the preferred court option for abused or neglected children in need of care and protection away from their birth family until they reach adulthood but without permanently severing family ties. It does not affect the child’s name, birth certificate or inheritance rights and in most cases contact with birth parents continues. Parental Responsibility Order This transfers all duties, powers, responsibilities, and authority to which parents are entitled by law to a nominated third party who might be a relative, or foster carer. Finalised third-party parental responsibility orders can be long-term or short-term. Most states and territories have policies that promote the use of such orders instead of adoption in circumstances where relatives are wishing to make permanent care arrangements; for example, the Permanent Care Orders used extensively in Victoria since 1992, and more recently in the Northern Territory and Queensland. Over the 5year period to 2016–17, the total number of third-party parental responsibility orders issued in Australia rose by 54%, from 1058 to 1627.87 Guardianship Orders Guardianship vests responsibility for the welfare of the child in a guardian, enabling that person to take decisions relating to matters such as the child’s education, health, religion, accommodation, and finances. It does not necessarily grant the right to daily care and control of the child.

87 See, Australian Institute of Health and Welfare, Australian Adoptions, 2018–19, (at p. 54). Though

this data must be used cautiously due to inconsistencies across states and territories (at p. 46).

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10.3.2 Contemporary Adoption Related Legislation A more or less common baseline of adoption legislation was gradually introduced throughout Australia, following a co-ordinated approach by the Attorneys-General of all states and territories in 1961, to regulate practice88 This was taken a stage further, in the late 1990s, when all states and territories began the process of reviewing the 1960s statutory framework for adoption and introducing new adoption legislation to address their common policy concerns. This began when Victoria commenced reviewing its Adoption of Children Act 1964 in the late 1970s and subsequently enacted the Adoption Act 1984. Other states and territories followed on driven by the necessity to co-ordinate the National Minimum Principles in Adoption 1993, the U.N. Convention on the Rights of the Child and the Hague Convention together with the provisions of relevant family and child care legislation such as the Family Law Act 1975 and the Children and Young People Act 1999.

10.3.2.1

The Family Law Act 1975 (Amended in 1995)

This statute, as administered by the Family Court of Australia, provides a framework for establishing principles and developing practice on a nationwide basis.

10.3.2.2

The Statutory Framework

This is now provided: in the Australian Capital Territory by the Adoption Act 1993; in South Australia by the Adoption Act 1988 and the Adoption Regulations 2004; in Western Australia by the Adoption Act 1994 and the Adoption Regulations 1995; in Queensland by the Adoption Act 2009 and the Adoption of Children Regulation 2009; in Tasmania by the Adoption Act 1988 and the Adoption Regulations 2016; in Victoria by the Adoption Act 1984 and Adoption Regulations 2019; and in the Northern Territory by the Adoption of Children Act 2006 and the Adoption of Children Regulations 2016. In 1997 the New South Wales Law Reform Commission published the Review of the Adoption of Children Act 1965 and followed up with the Adoption Act 2000 in which its objects were stated as follows in s 7: (a) (b) (c)

to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice, to make it clear that adoption is to be regarded as a service for the child concerned, to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,

88 See, Turner, J.N. , ‘Adoption or Anti-Adoption? Time for a National Review of Australian Law’, 2 JCULR 43 (1995) for an analysis of the relative conformity in adoption law across all jurisdictions in Australia in the 1960s.

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(d) (e) (f) (g) (h) (i)

467

to recognise the changing nature of practices of adoption, to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas, to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements, to encourage openness in adoption, to allow access to certain information relating to adoptions, to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.

10.3.3 International Law Adoption practice in all states and territories has been affected by Australia’s ratification of both the United Nations Convention on the Rights of the Child which came into effect in 1991 and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption which was given effect by the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 and has been signed, ratified and implemented since 1998. The latter, together with the bilateral agreement signed with China in 1999, has succeeded in streamlining the processes for adoption of intercountry children. Provisions of other instruments— such as the International Covenant on Civil and Political Rights (ICCPR) and the Declaration on the Rights of Indigenous People 2006—have a varying relevance. The Attorney-General’s Department broadly provides the Central Authority for ensuring national compliance with the Hague Convention, while each state and territory has also established their own Central Authority. Subsequently, the Australian Citizenship Act 2007 simplified the process of obtaining Australian citizenship for children who were adopted overseas in accordance with Hague. In each state and territory the legal framework for intercountry adoption is now provided by a combination of the Immigration (Guardianship of Children) Act 1946 together with the local adoption legislation and the relevant provisions of the U.N. Convention, the Hague Convention and other international instruments (see, further, Sect. 5.6). Australian states and territories can arrange adoptions with the central authority of any of the 99 countries that have acceded to or ratified the Hague Convention but the majority of domestically-arranged intercountry adoptions continue to be arranged with countries with which Australia has negotiated adoption agreements. The Australian Government maintains a firm policy of only contracting with countries whose practices it deems Hague compliant. Yet, as Penny Mackieson points out,89 the Australian Government also continues to allow numerous ‘expatriate adoptions’ from countries that have not been assessed as Hague compliant through an adoption-specific visa application process. In 2016, the Australian Government established an intercountry adoption family support service to provide a range of 89 Note

to author (20.06.2020).

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counselling support and post-placement services to families involved in the intercountry adoption process, including expatriate adoptions.90 An expatriate adoption is an intercountry adoption that “occurs when an Australian citizen or Australian permanent resident living abroad adopts a child through an overseas agency or government authority. Australian adoption authorities are not responsible for expatriate adoptions, and do not assess nor approve applicants for such adoptions”.91 The state and territory governments consider expatriate adoptions to be private adoptions and, as such, do not support them. Expatriate adoptions are thus reported separately to intercountry adoptions that are arranged domestically by the states and territories. In 2018–19, there were 57 domestically-arranged intercountry adoptions, compared with 99 adoption-specific visas issued for children adopted in 30 different countries through expatriate adoptions. Only 25% of these expatriate adoptions occurred in countries with which Australia had an official and active intercountry adoption program, whereas about 61% occurred in countries with which Australia has never had a formal intercountry adoption program. This recourse to ‘expatriate’ adoption— mostly bypassing all domestic and international filtering processes—accounts for a large proportion of annual adoptions and has become a significant characteristic of the Australian adoption process.

10.4 Regulating the Adoption Process Adoption in all states and territories is a modern, statutorily defined92 and regulated process. Although similar in many respects to that of the U.K. it is not so tightly regulated and lacks many of the formal mechanisms for monitoring standards and protecting the interests of the parties that have long been features of adoption in the U.K.93

90 See https://www.intercountryadoption.gov.au/post-adoption-support/intercountry-adoption-fam ily-support-service/. 91 Australian Institute of Health and Welfare, Adoptions Australian 2018–19, p. 22. 92 See: Adoption Act 1993 (ACT) and Adoption Regulations 1993 (ACT); Adoption Act 2000 (NSW) and Adoption Regulation 2003 (NSW); Adoption of Children Act 1994 (NT) and Adoption of Children Regulations 1994 (NT); Adoption Act 2009 (Qld) and Adoption Regulation 2009 (Qld); Adoption Act 1988 (SA) and Adoption Regulations 2004 (SA); Adoption Act 1988 (Tas) and Adoption Regulations 2006 (Tas); Adoption Act 1984 (Vic) and Adoption Regulations 2008 (Vic); and Adoption Act 1994 (WA) and Adoption Regulations 1995 (WA). 93 For an alternative view, see the British Association of Social Workers, ‘The role of the social worker in adoption—ethics and human rights: An enquiry’ (2018) at: https://www.basw.co.uk/res ources/role-social-worker-adoption-ethics-and-human-rights-enquiry.

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10.4.1 Length and Breadth of Process In order to manage waiting lists, many states and territories have now introduced ‘an expression of interest’ procedure and in effect the process does not start until an adoption agency receives such a notification. The relevant agencies periodically issue a public invitation for prospective adopters to declare an interest and their names are then entered in an Expression of Interest Register. In due course those registered are usually offered an opportunity to attend an education and adoption awareness programme after which applications are submitted and assessments commence.

10.4.2 Role of Adoption Agencies and Other Administrative Bodies Currently, in all states and territories, legislation requires an adoption agency to be approved and in practice, as these are mainly sited within the relevant government department, the adoption process is, in effect, largely channelled through government agencies.

10.4.2.1

Adoption Agencies

The involvement of voluntary agencies in the adoption process began to fade in the mid-1970s and by 1978 only two remained—the Anglican and the Catholic. Currently, every state and territory appears to have a government-based adoption service for intercountry adoptions, and usually also for local adoptions. Some state/territory governments also fund non-government-based adoption service providers for local adoptions. For example, in NSW, there are three non-governmentbased accredited adoption services for local adoptions, Anglicare Adoption Services, Barnardos Australia Adoptions (Find-a-Family), and Family Spirit Adoption Services.94 Some jurisdictions permit accredited non-government adoption agencies to arrange local or ‘known’ adoptions and some agencies now rely on an Adoptions Application Committee (or Panel) to assist in the decision-making process prior to placement. Private adoptions, however, are illegal throughout Australia and have been since the 1960s. There are no commercial adoption agencies as no payments of any kind are permitted for the purpose of acquiring a child through adoption.

94 See,

ally.

further, at: https://www.facs.nsw.gov.au/families/adoption/adopting-a-child/adopting-loc

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10.4.3 Role of the Determining Body As in the UK, the court forms the centrepiece of the adoption process; all states and territories (with the exception of Queensland) have long relegated the determinative function to the judiciary in courts of different levels.

10.4.4 Registrar General In all states and territories, the Registrar General is required to maintain an Adopted Children Register into which must be entered the particulars of every adoption order issued. All access to the information recorded in this register and access to an original birth certificate is through the office of Registrar General.

10.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria In Australia, the essentially consensual nature of adoption is evident in the criteria determining entry to the process.

10.5.1 The Child As elsewhere, there is a legislative requirement in most Australian adoption legislation that the child concerned must be present—though not necessarily domiciled— within the jurisdiction and must not have attained his or her 18th birthday.95 In both Queensland and South Australia the legislation prohibits the adoption of adults while in the Australian Capital Territory, the Northern Territory, Tasmania and Victoria it is permitted with some caveats.96 Northern Territory, Tasmania and Western Australia disallow the adoption of any person who is or has been married. Most states and territories have a legislative requirement that when considering adoption, consideration must be given to a child’s ethnic, religious, cultural and linguistic background. All states and territories have endorsed the Aboriginal and Torres Strait Islander Child Placement Principle in an adoption context and the view that adoption of

95 See,

Charlesworth, S., Turner, J.N. , and Foreman, L., Disrupted Families, Federation Press, Sydney, 2000 at p. 177. 96 See, Blore, K., ‘A Gap in the Adoption Act 2009 (QLD): the Case for Allowing Adult Adoption’, QUTLJJ, Vol 10, Issue 1, pp. 62–86.

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Aboriginal children should only occur in the most exceptional circumstances (see, further, Sect. 21.4.3.2). Consent Where a child aged 12 years or older is to be the subject of adoption proceedings then their wishes and views in relation to this matter must be sought in advance, following counselling. While there is rarely any specific requirement that their consent be obtained, in practice proceedings are unlikely to be commenced in circumstances where the child concerned adamantly refuses to consent.

10.5.2 The Birth Parent/s In Australia, the voluntary relinquishment of a marital child for the purposes of adoption requires the consent of both parents. This is necessary even in circumstances where a spouse is not the birth parent of the child. However, this is not to imply that the law gives any particular preference to the locus standi of birth parent/s. As was explained by the Family Court of Australia in Rice v. Miller 97 : …while the fact of parenthood is an important and significant factor in considering which of the proposals best advance a child’s welfare, the fact of parenthood does not establish a presumption in favour of a natural parent nor generate a preferential position in favour of that parent from which the Court commences the decision-making process.

10.5.2.1

Unmarried Mother

Basically, a pre-condition for the commencement of an adoption process in all Australian jurisdictions is the consent of the birth parent/parents or guardian/guardians of the relevant child. This should only be sought and acquired after counselling regarding the legal meaning and implications of adoption and advice as to any available alternatives. Consent The consent of such a mother is always a minimum legislative requirement for consensual adoption in Australia and is usually accompanied by time constraints: it will be inoperative if given before the birth of the child or within a short period afterwards. Under the South Australian Adoption Act 1988, for example, maternal consent to adoption cannot be given until the child is at least fourteen days old. After consent there is a period of twenty-five days (which may be extended by a further fourteen days) during which the consent may be revoked. In some states, notice of an unmarried mother’s consent to the adoption of her child must be served on the child’s father. 97 (1993)

FLC 92–807 at 85 106.

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Unmarried Father

Traditionally the legal rights and responsibilities of an unmarried father were restricted to the payment of alimony or maintenance in respect of his child. He could only hope to gain locus standi in adoption proceedings by leave of the court on evidence of his having borne direct and sustained care responsibility for the child. Essentially, equality legislation now ensures that he has a right to at least be heard by the court in any such proceedings; though for this to happen he first needs to be served with notice, which in practice is often dependant upon the mother disclosing his identity and contact details to the appropriate authorities. Consent Whether the consent of an unmarried father should be required has been the subject of a number of conflicting decisions in different jurisdictions, and has been a difficult question of interpretation. In all states and territories, except Queensland, there is now a legislative requirement that the consent of an unmarried father to the adoption of his child be either acquired or dispensed with. The recognition of such a father’s locus standi in adoption proceedings was affirmed in New South Wales by the decision of the Family Court in Hoye v. Neely98 where it was ruled that he was a ‘guardian’ and as such his consent was required for the purposes of adoption. In Western Australia the court may dispense with the consent of a father where he does not have day-to-day care responsibility, or a parental relationship, and is unreasonably withholding consent. In Victoria, the Adoption Act 1984 gave such fathers the right to be informed of pending adoption proceedings and the right to intervene. By the early 1990s, most states had legislated to include birth fathers in the adoption process. They were required to be at least informed of the proposed adoption, their involvement was generally required and in many states their consent was necessary. In Queensland, until 2010, it remained unnecessary to obtain the birth father’s consent nor was he required to be informed of prospective adoption proceedings.99 In that year a new adoption law introduced a requirement that “all reasonable steps” be taken to identify, locate and serve notice on a birth father when adoption proceedings were to be initiated in respect of his child.

10.5.3 The Adopters: Eligibility and Suitability Criteria The minimum eligibility criteria for adopters are invariably set out in the primary adoption legislation of the states and territories while criteria for assessing the suitability of prospective adopters are most often to be found in ancillary regulations. It

98 (1992)

107 FLR 151. The relevant statutory provision being s 26(3) of the Adoption of Children Act (NSW) 1965. 99 Arguably any such practice would be in breach of the Anti-Discrimination Act 1991 (QLD).

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is a legislative requirement that assessment of all third party applicants be undertaken by an approved adoption agency. Australia, in common with other modern western countries, specifies matters such as citizenship, residency, age,100 marital status, health, period of care responsibility for the child concerned and an age differential between that child and their prospective adopter/s as constituting minimum eligibility criteria. In Queensland, Tasmania and the Northern Territory, only married couples are allowed to adopt, whereas married and de facto couples are eligible to do so in all other jurisdictions. Same sex couples, married or not, have been able to apply since 2016. The circumstances under which single people can apply vary for each state and territory, with most only accepting applications under special circumstances. In some states and territories it is the duration of a couples’ relationship that is important regardless of marital status: varying from two to five years.101 It is also customary for the adoption legislation in Australia to specify infertility as among such criteria. Applicants are usually required to have had care responsibility for the child concerned for at least the 12 month period immediately prior to application. Some eligibility criteria, as stated in the Australian adoption legislation of the 1960s, are now incompatible with modern anti-discrimination provisions prohibiting discrimination on grounds of age, marital status, impairment or sexuality. The review of 1960s adoption legislation has seen the transfer of certain matters formerly listed under eligibility, such as health and infertility, to their current redefinition as suitability criteria. Other matters to be taken into account include criminal conduct, character references, religion, child protection information and participation in adoption awareness programmes. In addition, an assessment is required of each applicant’s attitudes to and understanding of: children and their physical and emotional development; the responsibilities of parenthood; and the significance of adoption and the importance of birth parents and their families.

10.5.3.1

Third Party Adopters

Most third party adopters are either adopting a child they have fostered for some time or a child from overseas. In either case they must satisfy the eligibility criteria outlined above. Similarly, much the same suitability criteria must be met but additional criteria apply in relation to intercountry adoption, or in relation to the adoption of a child from 100 In

Australia the specified age limits are varied: South Australia, 18–55; New South Wales, at least 21 years of age or more than 18 years older than the child; in the Northern Territories, at least 25 years of age and more than 25 years older than the child and no more than 40 years older than the first adopted child and no more than 45 years older than any subsequently adopted child. See, also, the Council of Social Welfare Ministers, National Minimum Principles in Adoption at para 6.1 (1995) which requires a maximum age difference between adopters and adopted of 40 years for a first child and 45 years for subsequent children. 101 Victoria, the Northern Territory, Tasmania, New South Wales, Western Australia, the Australian Capital Territory and South Australia.

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a different culture or one with special needs. When prospective adopters are being assessed in relation to the proposed adoption of a child in care, who by definition will have some degree of health or social care needs, then their potential capacity to work with a team of professionals and to maintain contact arrangements with members of the child’s family of origin will also be assessed.

10.5.3.2

First Party Adopters

Where a step-parent, or a relative, decides to commence adoption proceedings then the above eligibility and suitability criteria are considerably relaxed though there may be requirements regarding duration of marriage and of care responsibility for the child concerned. The consents of both birth parents and of the child (age permitting) are usually required. However, generally in all states and territories, legislative provisions only allow for adoptions by carers or relatives other than step-parents in exceptional circumstances, that is, when a guardianship or custody order would not adequately provide for the welfare of the child.102 Adoption by relatives other than step-parents is less common because most states and territories have policies that promote the use of parental responsibility orders (e.g. permanent care and other third-party parental responsibility orders), rather than adoption.

10.5.3.3

Intercountry Adopters

In relation to a proposed intercountry adoption, the commitment of applicant/s to nurturing the child’s particular cultural identity will form an additional part of their assessment. Also, the fact that some sending countries have their own specific criteria (e.g. in respect of age, obesity or marital status) will have to be taken into account.

10.5.3.4

Single and Same Sex Adopters

All Australian jurisdictions allow adoption applications from single persons, though in some this is subject to a condition such as ‘exceptional circumstances’ or the birth parent’s consent. As in other countries, adoption law in Australia initially neither facilitated nor obstructed adoption by gay or lesbian couples; it had nothing to say on the matter as this was simply outside the contemplation of legislators at that time. So, in particular, the definition of ‘parent’ in s 60H of the Family Law Act 1975, as amended in 1996, understandably makes no allowance for such a possibility. Gay or lesbian couples were left in a situation whereby only a single applicant could apply under traditional legislative provisions while more modern legislation such as the Adoption 102 In

Western Australia, adoptions by relatives other than step–parents are no longer permitted.

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Act 2000 (NSW) placed them in the same position as other applicants with the requirement that they satisfy the 3 year co-habitation rule. In response to the lack of any legislative provisions specifically addressing the issue, the Australian Capital Territory introduced legislation early in 2004 to permit adoption by gay or lesbian couples.103 This was followed by similar legislation in New South Wales,104 Western Australia105 and to an extent also in Tasmania106 and by 2018 eligibility for samesex couples to adopt had become legal in every state and territory.107 The first gay adoption occurred in Western Australia in June 2007. However, it remains the case that some sending countries such as China and Russia will not accept applications from same sex couples.

10.6 Pre-placement Counselling In Australia, pre-placement counselling is a legislative requirement in most states and territories. It is also provided even in those, such as Queensland, where there is no legislative requirement to do so. Under the South Australian Adoption Act 1988, for example, counselling is compulsory and must be completed at least three days prior to consent. The mother of the child must also be given information in writing regarding the consequences of the adoption. Australia, as a signatory to the U.N. Convention on the Rights of the Child, is obliged to ensure the provision of counselling to those whose consent is required. Consent is only legally valid if given by a mother after the birth of her child, it must not be induced by payment or compensation and it may be withdrawn.

10.6.1 The Adoption Applications Committee Some states and territories, such as Western Australia and South Australia, have established an Adoption Applications Committee (or Panel) which meets to consider applications from prospective adopters. It will base its decision on the family assessment report completed by the assessing social worker together with such other expert advice or consultations as it deems necessary.

103 An

initiative promptly condemned by John Howard the then Australian Prime Minister. For evidence of a positive judicial approach to same sex parental care, see Re Patrick: An Application Concerning Contact (2002) FLC 93–096. 104 See, the Adoption Amendment (Same-Sex Couples) Act (NSW) 2010. 105 See, the Adoption Act 1994, s 39, as amended by the Acts Amendment (Lesbian and Gay Law Reform) Act 2002. 106 See, the Adoption Act 1988, s 20, (as amended). 107 See, https://www.hrlc.org.au/news/2018/4/20/australia-now-has-adoption-equality.

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10.7 Placement Rights and Responsibilities Australia prohibits the private placement of a child for the purposes of adoption and has done so since the 1960s.

10.7.1 Authority to Place In Australia as elsewhere, the number of approved adopters far exceeds the number of children available. This normally results in ‘closed’ application lists and approved adopters waiting for long periods before a child is placed with them.108 This now also applies in relation to those adopting from overseas. Where the placement decision is taken by a registered adoption agency then adoption procedures require specified matching criteria to be applied.109 Where the placement is in respect of a proposed intercountry adoption then the decision is taken in accordance with the requirements of the Hague Convention, usually by the relevant adoption authority in the sending country.

10.7.1.1

Placement by Birth Parent

In Australia, the law prohibits the private placement of a child for adoption. Penny Mackieson adds110 : ‘Model’ adoption legislation was implemented across Australia in the 1960s (for example, the Adoption of Children Act 1964 in Victoria), which included the banning of privately arranged adoptions because of widespread concerns about unethical practices and unauthorised placements111 : “many people held concerns about the operation of private adoption agencies as well as the placement of children with unapproved adoptive applicants.”112 Those prohibitions on private adoption have remained in place ever since.

108 For

example in Queensland in March 2003 approved couples had been waiting 10 years for a placement. 109 In Queensland, for example, an amendment to the Adoption of Children Act 1964 effective from July 2002 specifies that the decision may only be made after consideration is given to matters concerning the needs of the particular child, the characteristics of the prospective adopters and the preferences expressed by the child’s birth parents. 110 Note to author (20.06.2020). 111 See Victorian Law Reform Commission, Review of the Adoption Act 1984 Consultation Paper (August 2016): [https://www.lawreform.vic.gov.au/sites/default/files/VLRC_Adoption_Act_ Consultation_Paper-Web_final.pdf]; and Quartly, M., Swain, S. and Cuthbert, D., The Market in Babies: Stories of Australian Adoption, Monash University Publishing, 2013. 112 Senate Community Affairs References Committee, Commonwealth contribution to former forced adoption policies and practices (February 2012), p. 143, https://www.aph.gov.au/parliamen tary_business/committees/senate/community_affairs/completed_inquiries/2010-13/commcontribf ormerforcedadoption/report/index.

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However, most states and territories provide for ‘open’ adoptions. This allows the birth parent/s an opportunity to be involved in the process of selecting the adopters of their child.113 Additionally, in most circumstances they may select the type and level of contact they want with their child during placement and following the issue of an adoption order. Thus, while they are not permitted under statute law to make a direct adoption placement, birth parents are often intimately engaged in the arrangements for placement.

10.7.2 Placement Supervision In Australia there is a statutory requirement that prospective adopters complete a minimum period of direct care for the child concerned immediately before lodging an adoption application. In Queensland, as in other states and territories, a 12 month care period is specified. All children entering Australia for the purposes of intercountry adoption do so under the guardianship of the Commonwealth Minister for Immigration under the Immigration (Guardianship of Children) Act 1946. An interim custody order is then issued in favour of the prospective intercountry adopters while the relevant government body gives effect to its guardianship duties by supervising the placement. Under the Hague Convention all states and territories are required to provide both placement supervision in respect of intercountry placements and reports at specified intervals to the relevant overseas authority. Once an authorised placement has been made, each child is then the named subject of ‘an adoption plan’ which, when duly registered, has the authority of a court order. In all states and territories except South Australia and Western Australia there is legislative provision for interim care orders to be made in respect of all children in adoption placements. Supervision, placement review procedures and powers to remove a child are generally available.

10.8 The Hearing The judicial hearing of an adoption application is favoured by all states and territories, because of the inherent focus of a court on procedural fairness, its independence from government policy and independence also from the decision-making processes of adoption agencies. This applies in respect of all adoption applications whether first party, third party, domestic or intercountry.

113 See,

for example, the Adoption Act 2000 (NSW).

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10.8.1 Where Consent Is Available The principle that any consent must be informed, given in circumstances free from financial or other rewards and from duress, guides practice throughout Australia.114 In step-parent applications, the consent of the non-custodial parent must also be obtained.

10.8.1.1

Timing/Validity

Issues most commonly arise in relation to those who are underage or suffer from mental illness or intellectual impairment. It is then customary to ensure parental consent in respect of the former and independent representation for such other person whose needs require it. The witnessing of any such consent is a general legislative requirement in Australia. All states and territories have a legislative provision allowing for retraction of consent within a stated period during which an adoption order cannot be made.

10.8.2 Where Consent Is Not Available All states and territories legislatively provide that consent may be judicially dispensed with in much the same sets of circumstances. In practice the following are the grounds most often relied upon: • • • •

the person concerned cannot be found after reasonable inquiry; lack of capacity to give a valid consent; child conceived as a result of rape or incest; and/or where domestic violence by the father causes the mother to be fearful for the physical, psychological and emotional safety of herself and her child.

New South Wales, in the Adoption Act 2000, has reduced the grounds to the first two above together with an alternative criterion that it is justified by a serious concern for the welfare of the child and by his or her best interests. The latter is explicitly synchronised with grounds in child protection legislation; the focus is on a child’s needs rather than on parental fault/failure.

114 In Queensland, for example, the Adoption of Children Act 1964 permits maternal consent at any

time after 5 days from giving birth but in practice the concern to ensure a reasoned and informed consent has resulted in no consents being sought until 10–14 days after birth. In New South Wales the Adoption Act 2000 specifies a period of 30 days after birth and a further period of 14 days to retract.

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10.9 Thresholds for Exiting the Adoption Process In Australia, as elsewhere in most modern western jurisdictions, there is no general right to adopt or be adopted.

10.9.1 The Welfare Interests of the Child In many states and territories there is a legislative requirement that an adoption order cannot be made unless the court is satisfied that this rather than any other order is best suited to promote a particular child’s welfare interests. The following range of factors are generally recognised as constituting those welfare interests115 : (I) The expressed preferences of the child’s birth parent/s including: • the preferred religious upbringing of the child; • the characteristics of prospective adoptive parents and the composition of the adoptive family; and • the desire to participate in a voluntary exchange of information or contact. However, the expressed wishes of abusive birth parents that their 4 year old daughter be raised in the Catholic faith did not prevail in an adoption application by same sex foster parents who had cared for the child since she was 18 months old but refused to comply with those wishes.116 The adoption agency acting on behalf of the applicants stated that it wasn’t in the child’s best interests to be baptised or christened because her adoptive parents would “not be able to facilitate her involvement and development with Catholicism due to their sexual orientation”. Justice Sackar found that while the law required cultural and religious ties to be preserved “as far as possible” the fact remained that “religion of course is only one of a multitude of factors the court has to consider” and ruled that despite parental opposition adoption by the couple was in the child’s best interests. (II) The specific needs of the child, including: • • • • •

emotional, physical, educational, recreational and social needs; the child’s age, maturity and level of understanding; Indigenous or cultural background; birth circumstances; and medical needs, including known medical conditions, disabilities, or potential future health conditions or disabilities.

115 See,

DHCS/ACT, Dept of Disability, Housing & Community Services, ‘A Better System for Children Without Parents to Care for Them: Discussion Paper on the Adoption Act 1993’, ACT Government, May 2006. 116 [2016] NSWSC 1926.

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Further, a statement of the principle that adoption is a service for children rather than for adults seeking to acquire the care of a child generally prevails.

10.9.1.1

The Paramountcy Principle

The UN Committee on the Rights of the Child in the ‘Concluding Observations’ of its 2012 report117 expressed its concern “that adoption proceedings are not undertaken with the best interests of the child as the paramount consideration”.

10.9.1.2

Voice of the Child

In New South Wales, South Australia, Western Australia and Queensland the consent of a child aged 12 years or more is a legislative requirement for his or her adoption. All other states and territories have no such legislative requirement in relation to consent but instead require the child’s views and wishes to be ascertained and taken into account. In New South Wales, South Australia and Western Australia a court may dispense with a child’s consent where satisfied that he or she lacks capacity to give a valid consent while in Queensland the child’s welfare interests provide sufficient grounds for doing so but there is no legal requirement to ascertain the wishes of a child aged less than 12. The UN Committee on the Rights of the Child in the ‘Concluding Observations’ of its 2012 report118 noted with concern that: “only three out of eight jurisdictions in the State party require the consent of the adopted child (as of 12 years of age) prior to adoption”. The Committee had expressed its concern nearly a decade earlier regarding the limited extent to which the voice of the child may be heard in Australian courts on matters concerning his or her welfare.119

10.9.2 Representing the Child’s Welfare Interests A number of jurisdictions provide for legal or separate representation of the relevant child in adoption proceedings in certain circumstances.120 If the child concerned is 117 See, Concluding Observations of the Committee on the Rights of the Child, Australia, U.N. Doc.

CRC/C/Aus/CO/4, 2012, at para 53. 118 Ibid. 119 See, Concluding Observations of the Committee on the Rights of the Child, Australia, U.N. Doc.

CRC/C/15/Add.268, 2005. The Committee then noted the efforts of the State party to implement fully article 12 of the Convention, but was concerned that the views of the child were not always sufficiently taken into account in judicial and administrative proceedings affecting the child (at para 29). 120 See: Adoption Act 1993 (ACT) s 107; Adoption Act 2000 (NSW) s 122(2); Adoption of Children Act 1994 (NT) s 80; Adoption Act 1984 (Vic) s 106; and Adoption Act 1994 (WA) s 134.

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under 15 years of age, then a legal representative is appointed to protect their interests, though the family court may hear opinions of the minor at its discretion. Among the interests to be considered is whether the order, if made, would disadvantage the child in relation to any succession rights to property; state and territory laws ensure that adoption does not deprive a child of any vested or contingent property right they would otherwise have.121 The National Minimum Principles in Adoption agreed by the Social Welfare Ministers in 1993 recognise the child’s right to independent representation throughout the adoption process. However, this principle has still to be fully implemented and it remains the case that Australian adoption law does not always provide for an independent child advocate in adoption proceedings. In New South Wales and Western Australia the provision for representing a child’s welfare and legal interests, involving a guardian ad litem and lawyer respectively, is fairly similar to that in the U.K. In New South Wales, for example, there is provision under Sections 122 and 123 of the Adoption Act 2000 for the interests of the child to be independently represented in court by a lawyer. Only in the Northern Territory is the child a party to adoption proceedings.

10.10 The Outcome of the Adoption Process The outcome of a contemporary adoption application is not necessarily the granting of the order sought with its traditional permanent and absolute legal effects on all parties. The courts are now increasingly questioning the appropriateness of such applications and even when granted the traditional effects of the order may well be compromised by the rights of others to contact and information.122

10.10.1 Adoption Order Non-consensual third party adoption orders are seldom made. This characteristic feature of the adoption process in Australia, which differentiates it from contemporary practice in the U.S. and in the U.K. but corresponds with practice in Ireland, is due to the traditionally low level of child care adoptions. 121 See: Adoption Act 1993 (ACT) s 43; Adoption Act 2000 (NSW) s 97; Adoption of Children Act

1994 (NT) s 45; Adoption Act 2009 (Qld) s 214; Adoption Act 1988 (Tas) s 50; Adoption Act 1984 (Vic) s 53; Adoption Act 1994 (WA) s 75. 122 For many, the legal security and finality offered by the traditional absolute adoption order was the reason why it was to be preferred over all other relevant orders and the modern introduction of compromises (contact, access to identifying information etc.) have greatly reduced its attractiveness. For a thoughtful analysis of the reasons for the growing unpopularity of adoption see: Bates, F., ‘Adoption or Anti-Adoption’, 2 James Cook University Law Review 43 and ‘Review of the Adoption Information Act 1990 (NSW)’, 19 Monash University Law Review 343, 1994.

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Most orders made in the context of ‘family’ adoptions are in favour of step-parents. Otherwise, modern statutory law in Australia, unlike the U.S. or U.K., generally treats ‘kinship’ adoption as not necessarily in the best interests of the child. Applicants are usually required to show special circumstances and convince the court that none of the alternative orders available would be more appropriate.123 In Western Australia, adoptions by relatives other than step–parents are no longer permitted while in all other states and territories, legislative provisions allow for adoptions by carers or relatives other than step-parents only in exceptional circumstances, that is, when a guardianship or custody order would not adequately provide for the welfare of the child. Under the Family Law Amendment Act, which came into effect on 24 April 1991, an adoption order cannot be made in favour of a step-parent or relative if a parenting order made by the Family Court of Australia can better serve the child’s interests. In Queensland, a number of challenges to adoption applications have been made by grandparents who have succeeded in persuading the Supreme Court to instead issue Family Court orders that protect their interests. In New South Wales the Supreme Court, found that a person not party to an adoption (a paternal grandmother) had standing to enforce an adoption plan registered under the Adoption Act 2000 (NSW) but not to review or amend it.124

10.10.1.1

Conditional Adoption Order

In practice, most local adoptions are given effect by conditional adoption orders: in some states and territories this is governed by legislation; but more often they are informal agreements.125 The conditions make specific provision for ongoing information exchange and often specify agreed contact arrangements in the form of a registered ‘contact plan’ between the adopted child and members of his or her birth family. In Adoption of JLK and CRK,126 that plan was complicated: two-hour visits, six times a year, for two children (aged eight and six); sometimes exclusively with birth parents; at other times with siblings; and possible overnight stays. Justifying post-adoption contact, Brereton explained in Adoption of RCC and RZA127 that: “[birth] parent contact is an important aspect of satisfying the identity needs of children who do not reside with their birth family, and mitigating the risks of later identity

123 See, for example in Queensland where s 12(5) of the Adoption of Children Act 1964 (as amended)

states that in such circumstances an adoption order shall not be granted unless “the welfare and interests of the child would be better served by such an order than by an order for guardianship or custody”. 124 Re JLR [2015] NSWSC 926. 125 See, Castle, P., ‘Collaboration in Open Adoption: the Birth Mother’s Experience’, Australian Journal of Adoption, Vol 6, No 1. 126 [2017] NSWSC 7. 127 [2015] NSWSC 813.

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issues”.128 The positive judicial assertion of post-adoption contact arrangements— often formally embedded in the adoption order—as being conducive to furthering the welfare interests of the adoptee is an interesting characteristic of the Australian adoption process.

10.10.2 Alternative Orders The courts in Australia have a well-established practice of preferring the less interventionist order of guardianship to the finality of adoption where circumstances permit. Additionally, in Victoria, permanent care orders were introduced in 1992 as the preferred alternative to adoption from out-of-home care.129 These orders grant permanent guardianship and custody of a child to a third party and expire when the child turns 18 or marries. They are usually the final step in the process of permanent family placement for children who have been abused or neglected, or who are in need of care and protection for other reasons and are unable to remain safely within the birth family, but for whom ongoing contact with that family is judged to be an essential means of promoting their welfare interests. In the Australian Capital Territory, the Northern Territory, New South Wales, Tasmania and Victoria the legislation requires the court when responding to step-parent adoption applications to instead make such lesser orders unless satisfied that the circumstances warrant the extra security of an adoption order. The Family Court of Australia, either in response to an application or of its own initiative in the course of adoption proceedings, now has the power to grant a parenting order instead of an adoption order in favour of ‘other people significant to the care, welfare and development’ of the child. The court may make any of the following orders: Residence Order Authorising a child to reside with a specified person, including shared parenting arrangements. Contact Order Authorising contact between the child and other named person/s, including duration and location of contact. Child Maintenance Directing that financial support be paid for the maintenance of a child. 128 As

cited in Monahan, G. and Hyatt, J., ‘Adoption Law and Practice in Australia’, (2018) 30 SAcLJ pp. 484–517, at p. 488. 129 See, Mackieson, P. The introduction and implementation of Permanent Care Orders in Victoria, [Thesis], University of Melbourne, 2019, https://minerva-access.unimelb.edu.au/handle/11343/ 225705.

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Specific Issues Directing that a specified area of parental responsibility be undertaken in a specified manner, including matters such as day to day care, welfare and development, religion, education, sport or other such significant aspects of a child’s upbringing. These alternatives are very similar to those available in U.K. family proceedings.

10.11 The Effect of an Adoption Order Whether consensual or otherwise and whether made in favour of parents, relatives or third parties, adoption orders are now quite likely to be influenced by the ‘openness’ ethos and be made subject to agreed contact arrangements. The making of an adoption order has direct legal effects on all three parties as well as affecting their extended families.

10.11.1 The Child In New South Wales, in 1977, a test case involving the adoption of a 10 year old girl by her mother and step-father established the legal precedent that a child has the right to know the facts relating to their adoption and to their birth family. In due course this right, available to those aged at least 18 and subject to prior counselling, accompanied by a ‘contact veto’ clause, was underpinned by legislation throughout Australia.130 In Queensland, significant additional caveats were attached.131

10.11.1.1

Name

The Adoption Act 2000 in New South Wales states as a principle that a child’s given name should be preserved. It also requires that for a child aged more than 12 months, there should be no change to the first name unless special reason is shown to the court, a child aged 12 years or more must consent and before a court approves a change to either a first name or a surname it must ascertain and take into account the wishes of the child. In some other states a child’s consent is required or their wishes must be ascertained and given due consideration.

130 Right

to know legislation was introduced as follows: Victoria enacted legislation in 1984 and implemented it in 1985; New South Wales and Queensland in 1990 and 1991 respectively; the Australian Capital Territory in 1992 and 1993; and the Northern Territory in 1993 and 1994. 131 Effective lobbying by the Queensland Adoption Privacy Protection Group, during the legislative process, succeeded in making this right subject to a condition enabling adopters to veto any divulging of information and any attempts by an adoption agency to contact an adopted person.

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Nevertheless, as Penny Mackieson comments,132 it remains standard practice for the child’s surname to be changed on the granting of an adoption order in all states and territories. Meanwhile, in 2012, the report of the Australian Senate Community Affairs References Committee’s inquiry into former forced adoption policies and practices133 recommended that: • all jurisdictions adopt integrated birth certificates, that these be issued to eligible people upon request, and that they be legal proof of identity of equal status to other birth certificates, and • jurisdictions investigate harmonisation of births, deaths and marriages register access and the facilitation of a single national access point to those registers. There has since been a growing campaign by adult adopted people, adoptee groups and post-adoption organisations to introduce integrated birth certificates134 for adopted adults who want them, and to cease the practice of changing the legal identity of a child on the granting of any future adoption order. For example, such recommendations were made in most submissions to the Victorian Law Reform Commission’s Review of the Adoption Act 1984 and were considered in some detail in the Commission’s final report published in 2017,135 which endorses those recommendations. Indeed, the Victorian Law Reform Commission’s report indicates that forms of integrated birth certificate are now available in South Australia, Western Australia and New South Wales.

10.11.1.2

Citizenship

Under the Australian Citizenship Act 2007, s 13, a person adopted under a law in force in a State or Territory of Australia by a person who is an Australian citizen at the time of the adoption (or by two persons, at least one of whom is an Australian citizen at that time) is an Australian citizen automatically if present in Australia as a permanent resident at the time of adoption. This has simplified the process of obtaining Australian citizenship for children who were adopted overseas in accordance with the Hague Convention.

132 Note

to author (20.06.2020). cit., at f/tnote 12. 134 An integrated birth certificate is “a birth certificate which records both the birth and adoptive parents of an adopted person.” (Victorian Law Reform Commission, Review of the Adoption Act 1984, Report February 2017, Melbourne, p. x, https://www.lawreform.vic.gov.au/all-projects/ado ption-act). 135 Victorian Law Reform Commission, Review of the Adoption Act 1984, Report February 2017, Melbourne, https://www.lawreform.vic.gov.au/all-projects/adoption-act. 133 Op.

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10.11.2 The Birth Parent/s The effect of an adoption order is, as always, to terminate the rights and duties of a birth parent but the consequences are no longer necessarily exclusive and permanent. Its absolute nature may now be compromised by implicit or explicit contact conditions136 while its permanent effects are subject to the information rights of other parties. In particular, the ‘right to know’ legislation has impacted upon birth parent/s by seriously compromising their traditional right to insist on permanent confidentiality. An adoption information service may now contact an adopted person aged 18 or older to inform, or confirm they have been informed, as to the identity of their birth parent/s. There has been some debate regarding the fairness of this legislative provision, which Queensland failed to enact. However, in general, the ‘right to know’ issue has not generated anything like the same level of vigorous resistance that continues to polarise views in the U.S.

10.11.3 The Adopters The traditional legislative intent, to fully vest the adopters with the rights of marital parents in respect of their adopted child, is broadly continued by contemporary legislation. Its essentially consensual character in this jurisdiction, however, coupled with the restrictions on its use, has allowed adopters to more freely accommodate aspects of ‘openness’ than is the case in other countries. The position of step-parent adopters is somewhat different. Under the Family Law Amendment Act, an adoption order will not be made in favour of a stepparent unless the Family Court considers that in the particular circumstances this would be in the best interests of the child concerned and grants leave. Should an adoption order be issued to a step-parent this will not automatically extinguish the rights and responsibilities of birth parents; the child does not cease to be a child of the earlier marriage, and existing rights of custody, guardianship and access are not, altered.

10.11.4 Dissolution of an Adoption Order As in other common law jurisdictions, an adoption order can only be set aside in Australia on the grounds of impropriety. So, for example, s 44 of the Adoption of Children Act 2006 in the Northern Territory provides that a court may discharge an adoption order if the adoption was obtained by fraud, duress or other improper means or where the consent to the adoption was obtained by such means. The 2006 Act 136 The

Victorian Adoption Act 1984 first made legislative provision for adoption orders subject to a condition permitting contact, direct or indirect, between the relinquishing birth parent/s and child but only with the agreement of the adopters.

10.11 The Effect of an Adoption Order

487

states that the court shall not make such an order if the child has attained 18 years or such an order would be prejudicial to the welfare and interests of the child. When the court makes such an order it may make further ancillary orders as it thinks necessary for the welfare and interests of the child including orders relating to their name, ownership of property, the care, custody and guardianship of the child and their domicile.

10.12 Post-adoption Support Services Traditionally, in keeping with the essentially private nature of adoption, the focus for service provision was on the pre-adoption stage; once an order was made then no further professional intrusion was generally either available or wanted. This has changed with the growing awareness that the interests of an adopted person need to be safeguarded and supported throughout their life.137 In 2009 the Intercountry Adoption Harmonisation Working Group completed the Nationally Consistent Core Curriculum which sets out a framework of training to outline realistic expectations for adopters. Since then, New South Wales, through its Adoption Act 2000 No. 75 (effective on 1 March 2020) appears to be the only state or territory so far to have introduced a legislative requirement to provide post-adoption services.

10.12.1 Adoption Support Services Most states and territories now provide financial and/or other forms of support at least to adopters.138 For example, in South Australia, Post Adoption Support Services (PASS) is a government funded agency which provides counselling, information and support to persons and families that have experienced adoption.139 Another example is the establishment, by the Australian Government in 2016, of the Intercountry Adoption Family Support Service—a free, independent, nationwide service providing counselling support to those engaged in the intercountry adoption process, and post-placement (including case management) services to intercountry adopted children and their families, including expatriate adoptions.140

137 In

Queensland it continues to be the case that there is no legislative requirement upon the state nor upon adoption agencies to offer any support services after the making of an adoption order to any of the parties concerned. 138 See, further, at: http://www.ag.gov.au/FamiliesAndMarriage/IntercountryAdoption/PostAdopt ionSupport/Pages/contactdetails.aspx. 139 See https://www.rasa.org.au/information-for-adoptive-parents/#. 140 See https://www.intercountryadoption.gov.au/post-adoption-support/intercountry-adoption-fam ily-support-service/.

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10.13 Information Disclosure, Tracing and Re-unification Services The Association of Relinquishing Mothers (ARMS), an Australia-wide organisation, successfully campaigned for access to information141 leading to both Victoria and New South Wales making legislative provision for such access. In 1976 the Adopted Persons Contact Register in New South Wales was established providing a means whereby adopted persons and their birth parent/s could, with mutual consent, register their wishes for contact. Two years later similar provision was made in South Australia. The Adoption Act 1984 now gives adult adoptees the right to a copy of their original birth certificates, as well as access to information contained in their adoption records.142 It also confers rights on the birth parents and the adoptive parents to access certain information.143 Other states and territories have since followed suit. Indeed by “2018–19, all states and territories had legislation that granted certain information rights to adopted people aged 18 and over, and to their adoptive and birth families” though “the extent of these rights, and of the protection of the privacy of parties to the adoption, varied among the jurisdictions”.144

10.13.1 Information Disclosure On the one hand, there is no general right of unconditional access to identifying information contained in the records held by adoption agency, court or Registrar. On the other, a limited amount of non-identifying information has always been provided to the birth parent/s and adoptive parents prior to placement and at the time an adoption order is made.145 Further, the importance of information to the parties involved in an adoption process has been legislatively acknowledged.146 As a general rule, adopted adults in Australia now have access to their original birth certificates and other documentation pertaining to their adoption, when they are eighteen years old. The original birth certificate has details of their parents, including their names and addresses at the time of the adoption. They may have access prior to the age of eighteen with the consent of their adopters. The mother of the adopted child also has access to the replacement birth certificate when the adopted child becomes an adult, at the age of eighteen years. This document has details of the child’s adopted name and the names of the adopters and their address at the time of the adoption. 141 See,

Winkler, R. and Van Keppel, M., Relinquishing Mothers in Adoption, 1983. Act 1984 (Vic) ss 92–94 and 96A. 143 Ibid., ss 95–98. 144 Australian Institute of Health and Welfare, ‘Adoptions Australia 2018–19’, at p. 32. 145 See, further, Harper, P., ‘Adoption Law Reform: In Search of Self-Identity—Access to Information, 6 Legal Service Bulletin 52 (1981). 146 See, for example, the Adoption Act 1994 (WA). 142 Adoption

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In South Australia there is provision under the Adoption Act 1988 for open adoption and for this practice to be retrospectively legitimated; so all adoption records, regardless of when an adoption occurred, are available to all parties concerned. The only caveat is that the release of information is subject to a five year embargo, if a party has registered their veto. In New South Wales, the Adoption Information Act 1990, which became fully effective on April 2, 1991, made original birth certificates accessible by right to adoptees.

10.13.2 Adoption Registers Each of the eight states and territories have now established their own data collection systems, adoption information services or information and contact registers (or other similar systems) that provide information to adoptees aged 18 or over and to their adoptive and birth families. The requirements for accessing these registers differ for each jurisdiction and are usually conditional upon the absence of a veto. In some states a court order is required to access adoption records. For example, in Victoria, Tasmania and the Northern Territory, people requesting information must attend an interview with an approved counsellor before the information can be released. In New South Wales, adopted persons and birth parents have the right to information without mandatory counselling, except when the information to be released will be distressing (e.g. the death of the other party Nationwide, the Australian Institute of Health and Welfare reports that, in 2016–2017, there were 2755 applications for access to information147 ; in 2017–18, there were 2627 such applications; and in 2018–19, there were 2691. The UN Committee on the Rights of the Child has acknowledged the special position of Indigenous People in in relation to accessing information about and tracing their families of origin.148

10.13.2.1

The Adopted Children Register

Each state and territory has its own Registry of Births, Deaths and Marriages together with an Adopted Children Register.149 147 See,

Australian Institute of Health and Welfare, ‘Adoptions Australia 2016–17’, Table S22. Concluding Observations of the Committee on the Rights of the Child, Australia, U.N. Doc. CRC/C/15/Add.268, 2005. The Committee notes the national inquiry carried out in 1997 by HREOC into the separation of Aboriginal and Torres Strait Island children (the Bringing Them Home report), which acknowledged the past policies whereby indigenous persons were deprived of their identity, name, culture, language and family. In this respect, the Committee welcomes the activities undertaken by the State party to assist family reunification and improve access to records to help indigenous persons trace their families (at para 31). 149 Anyone seeking identifying information about someone from whom they have been separated by an adoption in Australia would be advised to begin by contacting the respective state/territory (i.e. 148 See,

490

10.13.2.2

10 Australia

The Adoption Contact Register

By the early 1990s, such registers were established in most states and territories. They facilitate the reunion of adopted persons and birth parents following matched listings of registered wishes for contact. Contact vetoes, whereby the birth parent may place on record their wish not to be contacted by the adoptee and to which the adoptee must comply or be subject to criminal penalties, were first introduced when New South Wales passed its Adoption Information Act of 1990. Currently, the Australian Capital Territory, New South Wales, Queensland, Tasmania and Western Australia all have some form of contact veto, and, with the exception of Queensland, have formally set up ‘contact veto’ registers. These vetos are legally binding and if a person receives identifying information and goes on to contact another party when a contact veto is in place, legal action can be taken.

10.13.3 Conditional Access Usually, as in Queensland, the law tries to strike a balance between the concerns of those involved in adoption when it was a closed and confidential process and those who in recent years would have experienced it as a more open and informative process. The rights of the former are protected by legal provisions enabling access to identifying information only where other parties to the adoption in question have not registered an objection to disclosure and/or to contact. In contrast, all adult parties to an adoption dating from the early 1990s usually have an unqualified right to access identifying information as adoption records across Australia were then generally declared ‘open’ to the parties involved.150 There is no longer any provision for vetoes in Victoria.151 In New South Wales a contact veto cannot be lodged in respect of adoption orders made after 26 October 1990, nor in South Australia on orders made after 17 August 1989 and not in Western Australia, as a result of legislative changes made in 2003.152 In the latter jurisdiction, when a person wishes to gain access to information that was previously restricted by an information veto, and where a contact veto is in place, he or she is required to be interviewed by an approved counsellor and sign an undertaking not to contact the vetoer.153 Consequently, the number of vetoes lodged each year has significantly decreased. government authorised) adoption information service—see https://guides.slv.vic.gov.au/adoption/ victoria and https://guides.slv.vic.gov.au/adoption/otherstates. 150 See, further, Australian Adoption Links (Adoptee Searcher’s Handbook) and at: http://www.aia tsis.gov.au/fhu/adoption.html. 151 Contact vetoes were removed from Victoria’s adoption legislation with the passage of the Adoption Amendment Act 2015. 152 As cited in Adoptions Australia 2005–06, op cit at p. 28. 153 See, further, Australian Institute of Health and Welfare, Adoptions Australia 2005–06, Canberra, 2006, at p. 25.

10.13 Information Disclosure, Tracing and Re-unification Services

491

10.13.4 Tracing and Re-unification Services The Australian Institute of Health and Welfare Statistics reports that across Australia some 2600 applications for identifying information are received annually. For example, in Western Australia, people can register their details with Past Adoption Information & Services. Where two or more parties to the same adoption have done so then each will be advised accordingly. The majority of applicants, understandably, are adopted persons with only a minority of applications (at best a third) being from birth parents.

10.13.4.1

The Adoption Agency

As in other countries, adoption agencies remain pivotal to the provision of information relating to an adopee’s family of origin and to the circumstances prevailing at the time of their adoption (see, also, Sect. 10.4.4). To a varying degree, adoption agencies are engaged in ‘origins inquiries’.

10.13.4.2

The Role of Adoption Support Agencies

In some states and territories, agencies have been established to provide counselling and support services for adopted persons and birth parents seeking information. In Western Australia, the Past Adoption Information & Services, a government agency, provides free but limited support and counselling to relevant parties. There are now many nonprofit agencies involved in post-adoption service provision throughout Australia.

10.13.4.3

Agency Records

While many historical adoption records have been lost or destroyed over the intervening years, and record-keeping and archiving practices were variable, since the 1980s the general rule in all states and territories has been that adoption records must be retained.154 In Victoria, for example, the Adoption Act 1984 requires the records in respect of each adoption to be maintained and preserved, and specifically prohibits the destruction, removal or concealment of adoption records. In Western Australia, the Adoption Act 1994 requires all documentation relating to an adoption to be preserved indefinitely and any destruction must be authorised by the court registrar. In New South Wales, the Adoption Act 2000 requires a complete record to be 154 See, the Senate Community Affairs References Committee’s 2012 report on the ‘Commonwealth

contribution to former forced adoption policies and practices’ (at p. 5): https://www.aph.gov.au/ parliamentary_business/committees/senate/community_affairs/completed_inquiries/2010-13/com mcontribformerforcedadoption/report/index.

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kept of birth and adoption information which can be accessed by adopted children, their birth parents and adopters.

10.14 Conclusion The adoption process in Australia broadly conforms to that of other modern western societies which share a common law tradition; much the same issues of policy and practice have been, and continue to be, confronted by its legislators and judiciary. The Family Law Act 1975 (as amended in 1995) administered by the Family Court of Australia provides a framework for resolving adoption issues in accordance with established principles on a nationwide basis. Nonetheless and unsurprisingly, developmental progress has never proceeded uniformly across the quite different cultures of the states and territories that constitute this vast continent. For example, in the 1980s, Victoria was at the forefront of opening up adoption practices in Australia, both in terms of providing adopted people with access to their historical adoption records and in enabling ongoing information exchange or contact between the parties to any new adoptions. More recently, New South Wales has promoted policy, legislation and practice initiatives designed to increase adoptions from the statutory child protection and care system. Nevertheless, there is minimal evidence to indicate that other states and territories are following that example which, arguably, makes New South Wales an outlier. There are some interesting differences, largely of emphasis, in the Australian experience of adoption as viewed from the U.K. Most noticeably, non-consensual adoption is comparatively rare. This is largely due to an established non-interventionist tradition in relation to family matters; other factors being equal, the state will favour the order that authorises least intervention. This can be seen in the historically low rate of child care adoptions, although there have been definite signs of a different approach, primarily in New South Wales. The emphasis on family reunification, which seems out of step with current trends in the U.S. and the U.K., is perhaps in keeping with the earlier (and equally against the trend) experience of single mothers choosing to retain rather than relinquish their parental responsibilities. Moreover in Australia, unlike the U.S. and the U.K., the use of long-term foster care is encouraged for children with special needs which reduces the number identified as requiring child care adoption. The relatively low level of non-consensual adoption is also attributable to what appears to be a clearer and firmer policy in respect of family adoptions. Adoption by a birth parent and spouse or by a relative is generally viewed by the judiciary as being not necessarily in the best interests of the child concerned. Unlike the U.S., for example, there is a clear legislative presumption against adoption and a range of alternative orders has been made available. There is a presumption in favour of parenting orders and where ‘step parent’ adoption is proposed, leave to adopt must be obtained from courts exercising jurisdiction under the Family Law Act 1975. This diverts many would-be adoption applicants towards other proceedings.

10.14 Conclusion

493

The broadly consensual nature of adoption in this jurisdiction, perhaps also coupled with exposure to the experience of Indigenous people (see, further, Sect. 21.4), has facilitated the development of aspects of ‘openness’. To a greater degree than most other countries and probably influenced by its neighbour New Zealand, an ‘open’ model of adoption is now practiced throughout Australia. This not only permits varying degrees of post-adoption contact between birth and adoptive families but often allows the birth parent/s to be involved in the process of selecting adopters. This ‘openness’ has also permitted the introduction of legislation facilitating access to adoption information and the provision of related services.

Chapter 11

New Zealand

11.1 Introduction New Zealand is a multicultural Pacific nation with over 200 ethnic groups and 160 languages though English is the lingua franca. According to the latest national census, as at March 2020, it has a population of 5 million, of which: approximately 71% identify with European ethnic groups, mostly British or Irish, compared with 80% in 2003; while the 17% who identify as M¯aori, constitute the largest non-European ethnic group.1 The indigenous M¯aori, with their distinctive culture—featuring openness and transparency, commitment to extended family relationships, practices of shared parenting and family group conferences etc.—together with the proximity of diverse Pacific Island cultures, have combined to give this jurisdiction a well established and distinctive approach to adoption which long preceded the introduction of the present statutory system. The M¯aori ‘customary’ approach to adoption has, for the past century and more, functioned alongside the statutory process (though officially prohibited), challenging some of its more fundamental principles. This twin track approach makes the adoption process in New Zealand particularly intriguing and instructive. Beginning with background information on the social and legal contexts and the emerging characteristics of adoption, the chapter continues by considering the main elements of current law and policy before outlining the prevailing legislative framework and examining governing principles. The template of legal functions (see, Chap. 3) is then applied to reveal the regulatory mechanics, as illustrated by caselaw, in operation at different stages from entry to exit of the adoption process. The chapter concludes with a summary of the more distinctive characteristics of the adoption process in New Zealand.

1 See,

further, at: https://www.stats.govt.nz/information-releases/national-population-estimates-at31-march-2020-infoshare-tables.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_11

495

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11.2 Background Adoption as a statutory process began in the late 19th century when New Zealand became the first common law nation to introduce adoption legislation viz. the Adoption of Children Act 1881. Customary adoption, as practised by M¯aori, was not recognised under the 1881 Act, was prohibited in 1909 and remained so until incorporated within the statutory process by the Adoption Act 1955 (see, further, Sect. 21.5).2 This small nation experienced some 103,000 domestic adoptions in the period 1940–90 and has since been the recipient of very many overseas adoptions, which together have impacted upon most New Zealand families.

11.2.1 The Social Context Giving Rise to Adoption For the traditionally Anglo-centric government in New Zealand, the presence of M¯aori with their distinctive culture and spiritual beliefs, together with the proximity of the Pacific Islands and the consequent influence of a mix of cultures, legislating for family matters—including adoption—has always been a challenge.3

11.2.1.1

Marriage and Family Breakdown

New Zealand’s reputation for demonstrating leadership by legally adjusting traditional family roles, which began 130 years ago when it granted women the right to vote, has continued with early initiatives such as legalising abortion in 1977 and again in 2020, de-criminalising homosexuality in 1986 and enabling same-sex marriage in 2013. However, this country has not been immune to the same pressures causing family breakdown, child abuse and neglect, leading to more children becoming vulnerable and in need of out-of-home care. For decades the annual marriage rate has been falling: by 2019 it had reached 9.8 couples marrying per 1000 people eligible to marry (or form a civil union); less than half the rate in 1988, 40% lower than in 2004, and continuing a general decline since the peak in 1971 when the marriage rate was 45.5 per 1000.4 This has been matched by a fall in annual divorce rates: falling continuously from its highest rate in 1977; to reach 8.6 divorces for every 1000 estimated existing marriages and civil unions in 2018. Marriage and divorce are far less common than in the past. The legal status of families may, however, be beside the point. The 2019 UN HRC universal periodic review drew attention to the current “unacceptably high levels of family violence … one in three women in New Zealand experienced physical, emotional or sexual 2 See, Moody, C., ‘Adoption Law in New Zealand: The Righta and Well-Being of the Child’, [2008]

NZLawStuJl 7; (2008) 1 NZLSJ 487 at: https://www.nzlii.org/nz/journals/NZLawStuJl/2008/7.html. Yeoman, A., Cook, L. and Wong, K., The Kiwi Nest: 60 years of Change in New Zealand Families, the Families Commission, 2008. 4 See, further, at: https://www.stats.govt.nz/information-releases/marriages-civil-unions-and-div orces-year-ended-december-2019. 3 See,

11.2 Background

497

violence from a partner in their lifetime”.5 Undoubtedly there will be a correlation between such violence, family breakdown and children coming into care; this in turn impacting upon the probability of foster care and possible foster parent adoption. The traditional legal concept of ‘marriage’ was challenged by the introduction of the Marriage (Definition of Marriage) Amendment Act 2013 legalising marriage for gay, bisexual, lesbian, trans-sexual and intersex couples. This legislation represented a much delayed government response to the ruling in Quilter v. Attorney-General6 which concerned three lesbian couples who claimed that the reading of the Marriage Act 1955 as excluding same sex couples—and therefore denying such couples the right to marry—was discriminatory. The court then found that it was bound by the traditional interpretation of marriage as construed in that Act; it fell to the legislature and not the court to change that interpretation. Two of the couples subsequently took their case to the United Nations Human Rights Committee claiming that the ban on same-sex marriage violated the ICCPR. The 2002 decision of the UN HR Committee, in Joslin v. New Zealand,7 to uphold the domestic court’s decision seemed to refute the rationale asserted 20 years earlier in Dudgeon8 and, arguably, marked a low point in the Committee’s jurisprudence. Not until the Civil Union Act 2004 was equality of rights for same sex and heterosexual couples established. This was followed almost immediately by the Relationships (Statutory References) Act 2005 which extended that principle to most other legislation. Then came Gay and Lesbian Clergy AntiDiscrimination Society Inc v. Bishop of Auckland 9 which concerned an assertion by the respondent that the Christian doctrine on marriage as traditionally understood was defined as being between a man and a woman and that sexual relationships could only be approved of within such a marriage. In refuting that claim the Tribunal was at pains to stress that “the separation of Church and State must be maintained”.10 On April 17, 2013, parliament eventually passed the Marriage (Definition of Marriage) Amendment Act 2013 thereby enabling 4872 same-sex marriages to occur between August 2013 and December 2018. The 2013 Act also granted same-sex married couples eligibity to become joint adoption applicants. As the HRC have advised11 : If, for any reason, living with a same sex couple would be detrimental to the child/children, then this should be taken into consideration when deciding on custody rights. In no case should the sexual orientation of either parent be the sole reason for making a final decision on which parent is awarded custody.

5 A/HRC/WG.6/32/L.1

at para. 24. 1 NZLR 523. 7 Communication No 902/1999, (2002). 8 Dudgeon v. United Kingdom Application No. 7525/76, (1981). 9 [2013] NZHRRT 36. 10 Ibid. at paras. 33 and 42. 11 See, further, at: https://www.hrc.co.nz/our-work/sexual-orientation-and-gender-identity/faqs/. 6 [1998]

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11.2.1.2

11 New Zealand

Unmarried Mothers

Before 1939 fewer than 2% of all babies born each year in New Zealand were adopted, but by 1944 the figure had doubled to 4%. As in many other developed nations, the proportion of children in the care of single mothers and unmarried couples started rising in the mid-1960s as did the percentage of ex-nuptial births all contributing to the rise in non-family adoptions. By 1970 the percentage of all babies born that year and adopted was over 6% and that year adoptions reached their highest level— 3837—of which nearly early three-quarters (2831) involved ex-nuptial births, and over half (2286) were third party adoptions by ‘strangers’.12 By 1972/73 more babies were being cared for by their single mothers (2293) than were adopted by unrelated people (2128).13 This was a period—as in Ireland—when changes in social attitudes towards single mothers, coupled with improvements in law and welfare benefits, made continuing maternal care a feasible option to relinquishment.14 Most notably, the Domestic Proceedings Act 1968 and the Legal Aid Act 1969 made it easier for a single mother to obtain maintenance from the child’s father. From mid-1968 single mothers became eligible to claim an emergency benefit, and in 1973 the Domestic Purposes Benefit (now called “sole parent support”) was introduced which provided an entitlement to benefit for every parent raising a child alone, whether or not they had ever been married.15 Moreover, contraceptives and abortion were accessible from 1976. As a result there was a strong growth in the number of single-parent families during the late 1970s and early 1980s.16 By 2006, 10% of all households were headed by single parents, mostly women, compared with 9.5% in 1996, 7% in 1986 and 5% in both 1981 and 1971.17 Statistics New Zealand predict that18 : The number of one-parent families is projected to increase by 48,000 (an average of 0.8 percent a year), from 219,000 in 2006 to 267,000 in 2031. This increase is because of population growth, changes in population age structure, and an assumed higher rate of single parenting. The latter is due to increasing numbers of separations and divorces, increasing rates of childbearing outside couple relationships, and more complex shared-care arrangements with parents residing in different households.

Anne Else, ‘A question of adoption: closed stranger adoption in New Zealand, 1944–1974 , Wellington: Bridget Williams Books, 1991, Table 1, p.xii (as cited by TeAra ‘The Encyclopedia of New Zealand’ at: https://teara.govt.nz/en/adoption/print). 13 https://teara.govt.nz/en/adoption. 14 See, Goodger, K., ‘Maintaining Sole Parent Families in New Zealand: An Historical Review’, Also, see, Hutt, R., ‘New Zealand’s Sole Parents and their Marital Status: Updating the Last Decade’, New Zealand Population Review, Issue 38, pp. 77–93. 15 Note that the DPB was abolished in 2013. A sole parent would now get”sole parent support” in Part 1B of the Social Security Act 1964 (as amended). 16 See, Pool, I., et al., ‘The New Zealand Family from 1840: A Demographic History’, Auckland University Press, Auckland, 2007. 17 Statistics New Zealand 2005, 2007e. 18 See, further, Statistics New Zealand at: https://www.stats.govt.nz/browse_for_stats/population/ estimates_and_projections/projections-overview/nat-family-hhold-proj.aspx. 12 See,

11.2 Background

499

Consequently, the surplus of babies available for adoption disappeared. Indeed, there has been something of a reversal in the role played by unmarried mothers in the New Zealand adoption process: whereas in the post-war decades they were the main contributors of babies to the domestic adoption process; now single women are quite often the prospective adopters in both domestic and intercountry adoption. In 1971, for example, the peak year for adoptions, 3,976 babies were relinquished by young unmarried mothers of which more than half were adopted by ‘strangers’.19 By 2013, however, “an increasing number of successful single well-educated professional women in their 30s and 40s are arriving at motherhood by choice and through adoption”.20 Access to family planning services has served to decrease unwanted pregnancies among single women. Between 1972 and 1982 the number of births to women under 20 more than halved, from 70 per 1000 to 30 per 1000 annually. In 2002 the teenage birth rate reached a historical low of 25.5 per 1000. By 2008 it had increased to 33.1 per 1000, but it dropped again to reach a new low of 18.5 births per 1000 in 2015. This period has seen a corresponding decrease in the placement of children for adoption outside their birth families: fewer than 200 annually in most years since 1993.

11.2.1.3

Abortion

The availability of abortion was, until 2020, governed by the Crimes Act 1961 and the Contraception, Sterilisation and Abortion Act 1977 and regulated by the Abortion Supervisory Committee. This controlled public service, unavailable on demand,21 has nevertheless resulted in New Zealand having one of the highest abortion rates in the world, relative to the size of its population which clearly must adversely impact upon the corresponding rates of domestic adoptions. It is noteworthy that the New Zealand courts have ruled that a foetus can come within the legal definition of ‘child’ and as such is entitled to protection22 with further constraints flowing from the Supreme Court decision in Right to Life New Zealand Inc v. Abortion Supervisory Committee.23 This confirmed that the Abortion Advisory Committee had the power to enquire as to how the consultants involved in such procedures approached their decision-making and could revoke their appointments if it found that the consultants’ views were incompatible with the tenor of the Act.

19 See,

Te Ara—The Encyclopedia of New Zealand at: https://www.teara.govt.nz/en/adoption/ page-2. 20 See, Osborne, M., ‘Single Parent Adoption and Women’ at: https://adoption.about.com/od/non traditional/a/singleapar.htm. 21 See, Auckland Medical Aid Trust v. Commissioner of Inland Revenue [1979] 1 NZLR 382. 22 See, In the Matter of Baby P (an unborn child) [1995] NZFLR 577. This is not disimilar to the interpretation in Irish law. 23 [2012] NZSC 68.

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11 New Zealand

In practice, 98.2% of all abortions are authorised on the basis of the risks of nonintervention on the pregnant woman’s mental health. Numbers of abortions peaked at 18,500 in 2003 but had fallen to 12,800 by 2016,24 indicating that planned pregnancies had become more the norm and consequently the far fewer unwanted pregnancies resulted in correspondingly fewer babies being relinquished for adoption. The UN HRC in its 2019 universal periodic review recommended that abortion be removed from the Crimes Act 1961 and that the Contraception, Sterilisation and Abortion Act 1977 be reviewed to ensure that abortion is decriminalized in all circumstances to allow all women and girls to have access safe and legal to abortion.25 As Bill Atkin points out26 : This was largely achieved with the passage of the Abortion Legislation Bill in 2020. The purpose of the Bill was to decriminalise abortion, better align the regulation of abortion services with other health services, and modernise the legal framework for abortion currently set out in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977.

11.2.1.4

Assisted Reproduction Services

IVF is available, under the Human Assisted Reproductive Technology Act 2004 but the outcome can lead to legal complications. For example, in Re An Application by T ,27 which concerned a second parent adoption by the lesbian mother of her partner’s child by donor insemination, the court refused the application. Moreover, the complications are particularly fraught for M¯aori who place considerable importance on the purity of bloodlines (see, further, Sect. 21.5.1.4). Surrogacy The Human Assisted Reproduction Technology Act 2004 provides that altruistic surrogacy is legal in New Zealand—with the prior approval of the Ethics Committee on Assisted Reproductive Technology (ECART)—and that commercial surrogacy is prohibited. Under the Status of Children Act 1969 the birth mother is in law the recognised parent. Adoption, surrogacy and IVF are often linked in practice and increasingly so in legal proceedings: a child born via surrogacy must then be adopted by the commissioning parents if they are to be vested with parental rights under New Zealand law; the consent of both the surrogate mother and her partner (if she has one) are essential; the commissioning parents must undergo the usual assessment process and be approved as adopters; and no improper payments may be made. The resulting difficulties were apparent in Re Adoption of P28 when the court was asked to make an adoption order in favour of commissioning parents four years after a surrogacy 24 See,

further, at: https://www.nzherald.co.nz/lifestyle/news/article.cfm?c_id=6&objectid=118 23208. 25 A/HRC/WG.6/32/L.1 at para. 122.96. 26 Bill Atkin, note to author (06.06.2020). 27 [1998] NZFLR 769. 28 [1990] NZFLR 385.

11.2 Background

501

arrangement. Despite concerns that the applicant couple had breached the Adoption Act by advertising and paying money to the birth mother and by assuming care of the child without approval from the Department of Child, Youth and Family (now Oranga Tamariki), the court made the order for adoption on the basis that the commissioning parents were suitable candidates and that the money was paid for maintenance purposes during pregnancy, not for adoption. A similar approach was taken in Re Adoption of G29 where the court made final orders for adoption on the basis of the suitability of parents, despite the facts of the case showing a number of apparent breaches of the Adoption Act 1955. The commissioning parents had entered into a surrogacy arrangement after being declined on two previous occasions by the CYF as adoptive parents because of their poor financial situation and marital conflict. They had paid $12,000 to the surrogate mother, had care of the child since its birth and had possibly made some untrue statements to the adoption social worker when interviewed. There have been fewer difficulties where the adopting parents were full genetic parents to the child. In Re Adoption of H 30 a final order for adoption was made in respect of a baby girl born as the result of a full (IVF) surrogacy arrangement. The judge made a final order immediately on the grounds that “special circumstances” existed because the baby was the full genetic child of the commissioning parents. The gestational mother had consented to the adoption. In both Re Adoption of G and Re Adoption of P the court’s approach was that breaches of the Adoption Act 1955 did not bar the making of an adoption order, though these factors were matters to be taken into account by the Court when assessing the suitability of the applicants as parents. Surrogacy has resulted in many lesbian couples raising children31 and being supported under the provisions of the Care of Children Act 2004 but not without much litigation.32 However, where one of the lesbian partners is the birth mother, her partner is also a legal parent under the Status of Children Act 1969 (s 18). The position is more difficult for gay men, who must adopt to become their child’s legal parents. In Re Application by BWS,33 this happened in relation to two children born while the two men were living in the United States.

29 Unreported

(3 February 1993) DC Invercargill Adopt 6/92 Neal J. (13 August 2003) FC Wanganui FAM-2003-034-17. See, also, Re An Application by BWS to adopt a child [2011] NZFLR 621. For a full account of surrogacy case law in New Zealsnd see Atkins, B., ‘Adoption law: The courts outflanking Parliament’, New Zealand Family Law Journal, (2012) 7 NZFLJ No 5. 31 See, in VP v. PM (1998) 16 FRNZ 61 where a lesbian mother retained custody of her two children. 32 See, further, Clifford, L., ‘“ARE YOU MY MOTHER?” A More Complicated Question than Distinguishing Birds from Barnyard Animals: The Determination of Legal Parentage in Surrogacy Arrangements in New Zealand ‘, University of Otago, (2016) at: https://www.otago.ac.nz/law/ota go638187.pdf. 33 [2011] NZFLR 621. 30 Unreported

502

11.2.1.5

11 New Zealand

Increase of Children in Public Care

The OECD reports that rates of child abuse and neglect are high in New Zealand relative to other developed nations.34 In 2019 the number of children in care reached a record high: 6150 compared with 4960 in 2013 and 5312 in 2016.35 M¯aori children are disproportionately represented in this increase. For example, 60% of children in care in 2017 were M¯aori, while between 2008 and 2019 Oranga Tamariki (formerly, Child, Youth and Family services or CYF) had taken more than 4300 babies under the age of one into care, of which 62% were M¯aori.36 Foster Care The state foster care system in New Zealand is essentially a voluntary service, reliant upon approved foster parents who are only very seldom remunerated on a fee basis: payments are restricted to reimbursements for maintenance costs; this leads to placement breakdowns coupled with difficulties in recruitment and matching. In 2019, of the 6150 children in care,1029 were in a non-family/wh¯anau placement. This compares with: 1298 of 3844 children in 2013; and 1368 of 4716 in 2017.37 Foster parents can only make everyday type decisions for a child under 16; anything else— from dental treatment to a haircut—requires parental consent. Even that level of decision-making ceases when the child becomes 16 and the foster parents lose their legal guardianship rights. Residential Care In 2013, of the 3949 children receiving out-of-home care, 44 were in residential placements and a further 207 in ‘other supported accommodation’. By 2019, of the 6150 children in care 696 were in placements that included residential facilities, family/group homes, and contracted NGO services arrangements. Family Of the 6150 children in care in 2019, by far the majority—2589—were in a family/wh¯anau placement, representing 34% of all placements on entry to the care

34 See, Gilbert et al., ‘Child maltreatment: variation in trends and policies in six developed countries’, Lancet, (2011) at: https://scholar.google.com/scholar_lookup?hl=en&publication_year= 2011&author=R+Gilbert&author=J+Fluke&author=M+O%27Donnell&author=A+Gonzalez-Izq uierdo&author=M+Brownell&author=P+Gulliver&title=Child+maltreatment%3A+variation+in+ trends+and+policies+in+six+developed+countries. 35 For example, P v. K. [2003] 2 NZLR 787, [2003] NZFLR 489 (HC); [2004] NZFLR 752 (FC); [2004] 2 NZLR 421 (HC). See, further, at: https://www.msd.govt.nz/about-msd-and-our-work/pub lications-resources/statistics/cyf/. 36 See, https://www.rnz.co.nz/news/national/393208/oranga-tamariki-stats-increase-in-maori-chi ldren-taken. 37 https://www.msd.govt.nz/about-msd-and-our-work/publications-resources/statistics/cyf/kids-incare.html.

11.2 Background

503

system. This compares with: 1698 of of 3844 children in 2013; and 2515 of 4716 in 2017.38 Placed for Adoption It is a feature of adoption in New Zealand that, ordinarily, children do not come into state care as a formal preliminary to being placed for adoption. Instead the very few third party adoptions that occur are essentially “private” arrangements between birth parents and prospective adopters where full legal authority, and the right to give or withhold consent, remain with the birth parent/s. This restricts the role of the state to approving the eligibility/suitability of adopters and the placement arrangements but leaving intact all legal authority relating to the child until this is transferred by the court from birth parent/s to adopter/s. The state does, however, take responsibility for facilitaing ‘homes for life’ placements. By mediating between birth families and long term foster carers in respect of children the subjects of care orders, the state—as represented by Oranga Tamariki— is increasingly encouraging foster parents to apply for parental orders, guardianship orders, or special guardianship orders as a means of securing and protecting home life for such children.

11.2.2 Resulting Trends in Types of Adoption Annual adoptions in New Zealand peaked in 1971 when almost 4000 children were adopted. By 1998 that number had fallen to less than 600 and by 2016 there were just 128. The numbers of children adopted annually in the period 2006–15 were: 2006, 286; 2007, 261; 2008, 205; 2009, 206; 2010, 170; 2011, 173; 20,012, 193; 2013, 142; 2014, 151; and in 2016, 136.39 In 2016 of the 873 adoptions registered, only 128 were in respect of children born in New Zealand. An interesting if anomalous aspect of adoption in this jurisdiction is the fact that the eligible ‘children’ may be aged up to 20 years and may even be married.40

11.2.2.1

Third Party Adoptions

There has been a marked and continuing decline in the annual number of nonfamily adoptions which, after growing from about 1000 in the 1950s to over 2500 in the late 1960s, steadily diminished thereafter.41 In 1955 most adoptions—67.6%— were third party or ‘stranger’ adoptions. In 1970, when numbers peaked at 3837, 38 Ibid. 39 https://fyi.org.nz/request/4843/response/15944/attach/4/59610%20Mr%20de%20Geest%20resp

onse.pdf. 40 Re E (1991) 7 FRNZ 530 (FC). 41 See, further, at: https://www.cyf.govt.nz/about-us/who-we-are-what-we-do/adoptions-data-backup.html.

504

11 New Zealand

nearly three-quarters (2831) involved ex-nuptial births and over half (2286) were adoptions by strangers. By 1996 the social role of adoption had been transformed and only 21.1% fell into the latter category.42 In 2009, less than 45 children were adopted by non-relatives.43 A number of reasons for the fall in adoptions have been given including: – – – – – – – –

Abolition of illegitimate status (1969) and loss of stigma It being easier to be a single mum (including the introduction of the DPB) De facto relationships becoming more accepted Less pressure to adopt (medical, religious, legal, family) Better contraception Easier access to contraception and abortion Negative perceptions of the impact on people’s lives of adoption A misunderstanding about adoption today (many think it doesn’t happen at all or happens as it did in the 1960s).44

Domestic In 2002, of the total of 789 adoptions 389 were domestic, by 2016 there were only 138 domestic adoptions, a third of those recorded in 2006, and currently numbers have fallen to perhaps 2–3 dozen annually.45 Child Care Between 1994 and 2002, only 1.6 per cent of all adoptions granted or recognised by New Zealand were foster parent adoptions.46 In the 2001/2002 fiscal year only nine of the 636 children adopted were adopted by their foster parents. In 2013 there was only 1 adoption by a foster parent. Kinship care is the long established preferred permanence option. As most children in care are placed with family members, the need for the additional security of an adoption order is probably viewed as not worth the price of the added complexities this would introduce to extended family relationships. Moreover, as has been rightly pointed out47 : The law in New Zealand does create barriers to foster parent adoption. The requirements for dispensing with birth parent’s consent are dependant on the birth parent’s actions rather than the child’s welfare. CYFS policy has also impeded foster parent adoption through its over emphasis on the blood tie and under emphasis on permanence. 42 See,

Henaghen, M. and Atkin, B., Family Law Policy in New Zealand, (5th ed.,) LexisNexis. Butterworths, Wellington, 2020. 43 See, Gibbs, A, ‘Parenting adopted children and supporting adoptive parents: Messages from research’, Aotearoa New Zealand Social Work, Issue 22(2), 2010, pp. 44–52. 44 See, further, at: https://www.adoptionoption.org.nz/adoption/new-zealand-adoption-prof/. 45 See, https://www.newshub.co.nz/home/politics/2020/03/nz-s-adoption-laws-outdated-criticssay.html. 46 Child Youth and Family Website < https://www.cyf.govt.nz > As cited in Wilson, M., ‘When Blood is Thicker than Water: Foster Parent Adoption in New Zealand’, LLB thesis, Victoria University, Wellington, New Zealand (2003). 47 Ibid., at p. 30.

11.2 Background

505

As of 2020, the numbers of children coming into care has for some years been steadily climbing. This is matched by a sharp decline in the children being adopted; very few foster parents proceed to adoption. Adoption of Children With Special Needs While there are no specific statistics on special needs children being adopted, it seems fair to presume that some must be included within the numbers of children adopted by their foster parents and among those adopted overseas. Intercountry New Zealand is not a sending country for intercountry adoptions: where a New Zealand child is adopted by foreign adopters the latter are likely to be relatives of that child. As a receiving country New Zealand only began its involvement when domestic sources started drying up in the late 1980s. Between 1989 and 1991 New Zealanders adopted more than 150 Romanian children and since 1992 have adopted more than 670 from Russia. In the early 2000s, 500–600 children were adopted annually from other countries, over half of which were Samoans adopting related older children— mostly so the children could become New Zealand citizens.48 Currently, New Zealand has adoption agreements with seven countries through the Hague Convention: Chile, China, Hong Kong, India, the Philippines, Lithuania and Thailand. In 2002 of the 789 adoptions 401 were ICA: 243 children from Samoa, Russia and India (ie largely bypassing Hague); no special needs children being included. In 2013 there were only 24 intercountry adoptions of which a mere 6 were by non-relatives. By 2018 the total had fallen to 28 ICAs, 5 of the latter being non-Hague and 21 recorded as having special needs. Transracial In New Zealand, transracial adoption was for some time interpreted to mean the domestic adoption of Mäori children by white Caucasians.49 As Collins has pointed out, this was a very significant issue50 : Between 1955 and 1985, approximately forty-five thousand closed stranger adoptions took place in Aotearoa New Zealand, with adoption directly affecting twenty-five per cent of the total population. A significant proportion of closed stranger adoptions involved children who could claim Mäori ancestry through at least one of their birth parents. The majority of these Mäori children were placed within P¯akeh¯a families.

48 See,

further, at: https://www.teara.govt.nz/en/adoption/page-6. for example, Newman, E., ‘History of Transracial Adoption: A New Zealand Perspective’, American Indian Quarterly, Vol 37, Issue 1–2, University of Nebraska Press, 2013. 50 See, Collins, M.H., ‘Belonging and Whakapapa: The Closed Stranger Adoption of Mäori Children into P¯akeh¯a Families’, thesis, Massey University, at: https://mro.massey.ac.nz/bitstream/handle/ 10179/3195/02_whole.pdf?sequence=1. 49 See,

506

11 New Zealand

Given its reliance on ICA, and its location on the Pacific Rim with its vibrant racial mix, the adoption process in New Zealand has inevitably had a considerable transracial dimension.51 Children from Indigenous Communities Wh¯angai, the process whereby M¯aori traditionally organised the informal ‘adoptions’ of their children within kinship networks, has been established for centuries: legally prohibited for many years; but nonetheless functioning alongside statutory procedures and now recognised and regulated in law (see, further, Sect. 21.5.1.4).

11.2.2.2

First Party Adoptions

In 1955, no more than a third of all adoptions were first party—by a birth parent, immediate family or other blood relations—by far the majority were in favour of ‘strangers’. By the end of the twentieth century this was wholly reversed with nearly 80% of adoptions being first party.52 Step-parents Historically, step-parent applicants have been a prominent characteristic of the adoption process in New Zealand. In the 1980s and 1990s “reconstituted and blended families had become far more common and seem to have, at least in their manifest dimensions, been one of the more important changes to the nuclear family occurring during this period”.53 It is probable that these will now decrease proprtionately—as well as the inevitable numeric reduction—as the judiciary increasingly lean towards guardianship as being a more appropriate legal framework for such relationships. Indeed, in 2013 there were only 17 adoptions by one parent and their spouse. Kinship Adoption in New Zealand is largely kinship adoption: even when categorised as ‘intercountry’ it is still often in reality kinship. In 2013, for example, out of a total 154 adoptions, 50 were by relatives and in addition although there were only 24 intercountry adoptions that year, 18 were in favour of relatives. However, it is the informal system of customary adoption or whängai, practised by some Mäori outside the statutory process that has traditionally given adoption in this jurisdiction its strong association with kinship (see, further, Sect. 21.5.1.4).

51 See, for example, Newman, E., ‘History of Transracial Adoption: A New Zealand Perspective’, American Indian Quarterly, University of Nebraska, Vol, 37, No, 1–2, pp. 237–257. 52 Henaghan, M. and Atkin, B., Family Law Policy in New Zealand, (5th ed.) op cit. 53 See, Pool, I, Dharmalingam, A. and Sceats, J., The New Zealand Family From 1840: A Demographic History, Auckland University Press, 2007 at p. 239.

11.3 Overview of Principles, Policy and Law

507

11.3 Overview of Principles, Policy and Law New Zealand acquired a measure of independence in 1840 with the Treaty of Waitangi, the broad umbrella of which has come to accommodate the common law, statute law, international treaties and conventions, and has set the boundaries for evolving law and public policy which increasingly gives weight to Mäori culture and interests. At the signing of the Treaty Governor Hobson had declared that “Mäori custom shall alike be protected”, a promise largely ignored, nonetheless the Mäori culture did come to exercise considerable influence on adoption law and practice in New Zealand.

11.3.1 Adoption Principles and Policy This founding document provided a broad statement of principles for building a nation-state and government. It offered a ‘constitutional’ basis for recognizing legal rights and for testing government policy in respect of all citizens but it “has to be seen as an embryo rather than a fully developed and integrated set of ideas.”54 Articles 2 and 3 provide protection for M¯aori to observe and practise their religions and beliefs: the first does so by reference, in the M¯aori version, to taonga, that is, ‘everything that is held precious’; the second by providing for M¯aori to have ‘the same rights as those of the people of England.’

11.3.1.1

Principles

Essentially, the principles embodied in the 1955 Act are no longer aligned with the social norms of the twenty-first century, nor are they aligned with principles embodied in international instruments—to which this country is a signatory nation—and to an increasing extent they are also nonaligned with actual practice. Adult Adoption Although adult adoption is not possible, the fact that this option is available for young persons aged up to 20 years lessens any associated difficulties and is a distinctive feature of adoption in this jurisdiction. The Welfare Interests of the Child The Adoption Act 1955 requires only that the child’s welfare and interests be promoted by the adoption; there is no mention of paramountcy nor of any other weighting to be given to this principle; and no specific mention of when exactly the principle is to be applied. The Oranga Tamariki Act 1989, s 4A, states that 54 New

Zealand M¯aori Council v. Attorney-General, [1987] 1 NZLR 641, (1987) 6 NZAR 353, per Cooke P.

508

11 New Zealand

‘the well-being and best interests of the child or young person are the first and paramount consideration’. The Care of Children Act 2004 specifies that the welfare and best interests of a child must be the first and paramount consideration and the judiciary have repeatedly referred to the similar UN CRC requirement as binding upon domestic law. Openness The focus on ‘openness’, attributable largely to the M¯aori culture, has been a charateristic of adoption law and practice that was very largely pioneered in New Zealand.55 This was evident in the features of the initial 1881 legislation which was very much driven by a concern for the adoptee: adoptee birth certificates would include birth names, and birth parents names; adoptive parents and birth parents were to have access to each other’s identity; and the adoptees birth surname would be retained and hyphenated to the adoptive surname.56 Paradoxically, however, statutory law continued to enforce the ‘closed’ model—featuring birth parent veto on information disclosure and sealed records——until the closing years of the twentieth century. This is largely attributable to s 7(6) of the Adoption Act 1955 which declares a parental right to give consent to an adoption without knowing the identity of the prospective adoptive parents. As Blanchard J said in Re Adoption of PAT 57 this approach was designed “to protect the child and adoptive parents from what were regarded as the stigmas of illegitimacy and infertility.” As most adoptions in New Zealand are now intra-family in nature they are also necessarily more ‘open’ as birth parents and adoptive parents inevitably maintain ongoing relationships. In many cases birth parents continue to have a part in the child’s life, with the agreement of all concerned. The agreed arrangements are set out in a contact agreement but are not legally enforcible. ‘Openess’ has now become a characteristic feature of adoption practice. However, the legal protections granted to birh parents in the 1955 Act continue to impose real restrictions on adoptee access to identifying information; though less so since the introduction of the 1985 Act. Family for Life The New Zealand concept of ‘permanency planning’ has for sometime now been termed ‘family for life’. As in the UK, it refers to decisions taken by social workers and judiciary to provide a legally protected family upbringing for a child following a Family Court decision that he or she cannot be cared for by their birth family. Usually, this takes the form of long-term foster care—perhaps involving a guardianship order or special guardianship order—or it could mean adoption. 55 It must be borne in mind, however, that ‘open adoption’ has traditionally been a term used in reference to the M¯aori practice of informally and directly placing a child to be reared by others but without any compliance with legal procedures. This is now prohibited (all direct placements must involve Oranga Tamariki). 56 See, Griffiths, K., ‘Adoption History and Reform in New Zealand’, 1996, at: https://adoptionnz. com/?page_id=118. 57 [l995] NZFLR 817, 819.

11.3 Overview of Principles, Policy and Law

11.3.1.2

509

Policy

Adoption policy is in general governed by the principle that it should be consensual. This is illustrated by the continuing right of birth parents to place their child with whomsoever they wish—subject to recipients being approved by the authorities as eligible and suitable—in essence this permits ‘private’ adoptions. Currently, the drive is directed towards modernising the 1955 Act with particular reference to loosening the constraints on access to identifying information, but with little concern for expediting the adoption of children in the care system.

11.3.1.3

Adoption Alternatives

While these orders are available, there is as yet no legal presumption that applicants—or social workers and judiciary—should be diverted to them as alternatives to adoption in specific circumstances. Nonetheless there are indications that policy and practice are firming up to favour such options when adoption might serve to blur familial relationships, perhaps especially as regards step-parents. For example, Re Adoption Application by PLL 58 concerned three Hong Kong sisters whose parents were heroin addicts and who were looked after by a couple who moved to New Zealand. Adoption was proposed but this did not work out for the eldest sister. The question was whether a parenting order could be made under the Care of Children Act 2004 providing for contact between that sister and the other two. Granting the application, Judge Murfitt stated that the 2004 Act “altered the landscape of the law” and represented “a sea change”59 by allowing a wider range of people to apply for a parenting order, which included contact. A “legally recognised familial link”, which an adoption may otherwise sever, is not required.60 Guardianship Instead of pursuing an adoption application Oranga Tamariki may advise that a guardianship order, under the Care of Children Act 2004, would in the circumstances offer a more appropriate means of legally securing the applicant/s relationship with a particular child. As Ward has explained61 : In New Zealand guardianship is the most prominent means of achieving a permanent placement for a looked after child. Plans for adoption apply, almost without exception, to infants relinquished voluntarily by their birth parents.

58 [2009]

NZFLR 1081. at paras at [29] and [32]. 60 Ibid., at para [30]. See, further, Atkin B, ‘Adoption law: The courts outflanking Parliament’, New Zealand Family Law Journal, (2012) 7 NZFLJ No 5, from which this account was taken. 61 See, Ward, P., ‘Achieving permanence for looked after children through special guardianship: a study of the experience of New zealand guardians with implications for special guardianship in England’, Adoption & Fostering, Vol 28, Issue 4, 2004, pp. 16–26, at p. 18. 59 Ibid.,

510

11 New Zealand

Appointing a person as guardian gives them the day-to-day care and all operative rights and responsibilities in respect of the child until the latter reaches the age of 18. The legal status of child and birth parents remains unchanged.

11.3.2 Contemporary Adoption Related Legislation Not until 2010 did New Zealand decide to support the UN Declaration of Rights of Indigenous Peoples.62 The second New Zealand universal periodic review in 2014, recorded concerns that included the delay in signing or ratifying certain Conventions and the lack of any overarching protection for human rights while the third, reiterating the latter concern, also urged the ratification of the Optional Protocol to the Convention on the Rights of the Child on a communications procedure. In 2016 the Human Rights Commission ruled that New Zealand’s adoption laws were discriminatory and outdated and called for urgent reform.63 As of 2020 there has been no legislative change.

11.3.2.1

The Family Dispute Resolution Act 2013

This provides for parties to attend mediation as the first step in disputes involving the care of children, though not for adoption.

11.3.2.2

The Care of Children Act 2004

This statute reforms and replaces the Guardianship Act 1968, introduces significant new provisions dealing with the guardianship of children and with the resolution of disputes about shared parenting. It also implements the Hague Convention on the Civil Aspects of International Child Abduction and, importantly, it states, in s 4, the rule that the welfare and best interests of the child must be treated by the court as the first and paramount consideration in any dispute regarding the upbringing of that child.64 The six principles that the court must take into account when determining what constitutes the welfare and best interests of a particular child are set out as follows in s 5:

62 On 13th September 2007, the General Assembly adopted this landmark declaration outlining the rights of the world’s estimated 370 million indigenous people and outlawing discrimination against them: 143 Member States voted in favour; 11 abstained and four – Australia, Canada, New Zealand and the United States – voted against the text. 63 Adoption Action Incorporated v. Attorney-General [2016] NZHRRT 9, [2016] NZFLR 113. 64 The paramountcy principle has been upheld in cases such as Hamlin v. Rutherford (1989) 5 NZFLR 426.

11.3 Overview of Principles, Policy and Law

(a)

(b) (c)

(d) (e)

(f)

511

a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in section 3(2) to (5) of the Domestic Violence Act 1995) from all persons, including members of the child’s family, family group, wh¯anau, hap¯u, and iwi: a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians: a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order: a child should have continuity in his or her care, development, and upbringing: a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, wh¯anau, hap¯u, or iwi should be preserved and strengthened: a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

Within these principles a multitude of other factors may exercise varying influence depending on the circumstances.65 Subsequent case law established that blood-ties though important did not raise a presumption that biological parents had a right to custody or care of their child.66

11.3.2.3

The Adoption (Intercountry) Act 1997

This was an Act to implement the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, to provide for the approval of organisations as accredited bodies and to make provision for intercountry adoption and other matters related to adoption.

11.3.2.4

The Births, Deaths, Marriages and Relationships Registration Act 1995

As amended by the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2009, the 1995 Act provides for the registration of information about births, adoptions, changes of name, sexual assignment and reassignment, marriages, civil unions, and deaths.

65 See,

further, D v. W (1995) 13 FRN 336 (HC), per Fisher J. K v. G [2005] 3 NZLR 104 (HC) and B (CA204/97) v. The Department of Social Welfare [1998] 16 FRNZ 522 (HC). 66 See,

512

11.3.2.5

11 New Zealand

Children, Young Persons and Their Families Act 1989 Now Called the Oranga Tamariki Act 1989 or the Children’s and Young People’s Well-Being Act 1989

This statute—like its UK counterpart the Children Act 1989—is oriented towards the concepts of ‘families in need’ and support for ‘good enough parenting’ rather than ‘child rescue’. Its provisions govern the care and protection of children and provide for the support of families in need. It provides for the permanent placement of children, who cannot be cared for by their birth parents, by means of guardianship rather than adoption. It includes procedures for: convening family group conference as authorised or required; seeking court orders for children in need of care and protection; and for placements in a residential centre, family home, group home, foster home, family resource centre or other designated place.

11.3.2.6

Adult Adoption Information Act 1985

This allowed adoptees aged 20 or more to apply for their original birth certificates and for assistance to trace and contact the named birth parent(s). Birth parents could also apply to identify and contact their children. All other persons were denied access to such information. In 2016 the Human Rights Review Tribunal ruled that sections of New Zealand adoption laws were discriminatory and outdated. The Human Rights Commission has also advocated for reform. Despite these criticisms, the Adoption Act 1955 and the Adult Adoption Information Act 1985 continue to dominate the New Zealand adoption process.

11.3.2.7

The Status of Children Act 1969

The 1969 Act provides for the status of children, abolishes the status of ‘illegitimacy’ and determines the parentage of children born with the aid of assisted reproductive procedures.

11.3.2.8

The Adoption Act 1955

Founded on concepts of ‘secrecy’ and ‘clean break’, this outdated legislation confers rights of anonymity on relinquishing birth mothers with accompanying rights to seal birth records and identifying information from adoptees, subject to the 1985 Act. It mandates the ‘closed’ adoption model and continues to outline the law and procedures that govern adoption in New Zealand in the very changed social context from that which prevailed 65 years ago.

11.3 Overview of Principles, Policy and Law

513

11.3.3 Other Relevant Legislation A considerable range of legislation has a bearing on adoption, including: the New Zealand Marriage (Definition of Marriage) Amendment Act 2013, the Family Proceedings Act 1980; and a raft of equality statutes such as the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990 (BORA), the Privacy Act 1993, the Equal Pay Act 1972, the Children’s Commssioner Act 2003, the Children’s Act 2014, and the Child Poverty Reduction Act 2018.

11.3.4 International Law New Zealand is a signatory state to the Universal Declaration of Human Rights, has ratified the International Covenant on Civil and Political Rights (ICCPR) and is subject to the CERD and ICCP monitoring processes. It has supported the UN Declaration on Child Placement67 but has not incorporated UN CRC as part of domestic law. Nonetheless, as Keith J stressed in New Zealand Airline Pilots’ Association Inc v. Attorney-General 68 : We begin with the presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand’s international obligations … That presumption may apply whether or not the legislation was enacted with the purpose of implementing the relevant text.

The following are among the main international instruments relevance for adoption in New Zealand (see, further, Chap. 4).

11.3.4.1

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993

Signed by New Zealand in 1997, this Convention is of diminishing significance as annual intercountry adoptions continue to fall and adopters often choose children from non-Hague countries.

11.3.4.2

The UN Convention on the Rights of the Child

New Zealand ratified the UN CRC with reservations on 6 April 1993. In particular, the government considers that the rights of the child as provided for in Article 32(1), are adequately protected by existing domestic law. UN CRC has not been implemented as part of New Zealand law but it is included in a schedule to the 67 See,

further, at: https://www.nzlii.org/nz/other/nzlc/pp/PP38/PP38-6_.html. 3 NZLR 269, 289.

68 [1997]

514

11 New Zealand

Children’s Commissioner Act 2003, it is relevant to the writing of a children’s wellbeing “strategy” under s 6A of the Children’s Act 2014, and, from 1 July 2019, it is included in the principles of the Oranga Tamariki Act 1989. Its relevance and importance to adoption have been emphasised in a number of cases.69 In T v. J the Court referred to the commitment made by New Zealand to implement the principles of UN CRC in domestic legislation and noted that while Declarations are not binding, they have moral force which requires domestic legislation to be read and interpreted, to the extent it permits, in a manner consistent with New Zealand’s international obligations under the Treaty.

11.3.4.3

The International Covenant on Civil and Political Rights

New Zealand ratified the ICCPR on 28 December 1978 but it has yet to be incorporated into domestic legislation. Nonetheless, its provisions are frequently relied upon by the judiciary. Together with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR) these instruments constitute the International Bill of Rights.

11.3.4.4

Other

Such international instruments as the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally 1986 and the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography 2000 (Sex Trafficking Protocol) 2000 may also have a bearing on adoption law in New Zealand.

11.4 Regulating the Adoption Process The regulatory framework for adoption in New Zealand is to be found in the Adoption (Intercountry) Act 1997, the Adoption Act 1955, the Adoption Regulations 1959, the Adult Adoption Information Act 1985 and the Births, Deaths, Marriages, and Relationships Registration Act 1995. Other legislation such as the Care of Children Act 2004 is also relevant. It is a singularly archaic and disparate assortment of statutory provisions, ill-suited to the needs of children in contemporary society.

69 For

example, see: GM v. T [1996] NZFLR 817, 827, Re Adoption Application by JLH [1994] NZFLR 798, 805 and T v. J [2000] 2 NZLR 236.

11.4 Regulating the Adoption Process

515

11.4.1 Length and Breadth of Process Over time the population of this nation has perhaps been disproportionately affected by adoption, largely due to its prevalence in the M¯aori community. However, the adoption process is now shrinking so fast, in terms of volume of annual orders made, that the significance of its length and breadth is being correspondingly reduced. Nevertheless, the recommendations made repeatedly by the Law Commission and other bodies for modernising the process would clearly be beneficial to it and to the parties involved—particularly as regards the needs of the many adoptable children in the public child care system.

11.4.2 Role of Adoption Agencies and Other Administrative Bodies Oranga Tamariki is central to the adoption process in New Zealand. Unlike other jurisdictions there are no independent accredited adoption agencies, though there are some organisations that offer ancillary services. Catholic Social Services in Christchurch and the Latter Day Saints Social Services, for example, both engage in ancillary adoption work but their beliefs exclude the possibility of contracting with same sex prospective adopters and they are therefore excluded from registration and regulation by government as adoption agencies.

11.4.2.1

Adoption Agencies

Adoption law in New Zealand prohibits the making of improper payments in the arranging of adoption placements; evidence of such payments would be considered to breach the principle of the welfare interests of the child. Therefore, no commercial adoption agencies are permitted. Oranga Tamariki is the sole agency for mediating the needs of birth parent/s, children in need of families and prospective adopters in the context of domestic adoptions. It also acts as the country’s Central Authority (NZCA) for the purposes of the Hague Convention. Voluntary or Independent Adoption Agencies Adoption First Steps (AFS)70 is the agency that conducts adopter assessments for overseas adoptions. Accredited Bodies Under the Adoption (Intercountry) Act 1997, s 6, specific agencies have been delegated to function as ‘accredited bodies’ to work in countries with which the NZCA 70 See,

further, at: https://adoptionfirststeps.org.nz.

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11 New Zealand

has a working relationship for the purpose of facilitating ICA. Inter-Country Adoption New Zealand (ICANZ)71 and Compassion for Orphans (CFO)72 are accredited bodies that currently serve that purpose in New Zealand.

11.4.3 Role of the Determining Body Oranga Tamariki is required to submit a ‘home background’ report on the circumstances of the birth family, including an assessment on factors having a bearing on the welfare of the child concerned, in respect of every adoption application.

11.4.3.1

The Judiciary

As in the UK, adoption in New Zealand is a judicially determined process. All adoption applications must be heard and resolved by the Family Court which is the sole authority for issuing adoption orders.

11.4.4 Registrar General The Births, Deaths, Marriages, and Relationships Registration Act 1995 which has provided the legal framework for the responsibilities of the Registrar General for the past 25 years is about to be replaced by the Births, Deaths, Marriages and Relationships Bill. The latter will re-enact the majority of the 1995 Act but with some additions and amendments which in the main address transgender issues. As before, the Registrar General will maintain a separate register of adoptions to which there will be restricted access. Once an adopted person reaches the age of 19, that person can request the Registrar General to have the original birth certificate endorsed to the effect that they do not desire any contact with either a particular birth parent or both birth parents. In the case of adoptions for which no section 7 endorsement has been requested by the adopted person, and adoptions before the commencement of the Adult Adoption Information Act for which no veto has been placed, information that identifies an adult adopted person or a birth parent can be requested by either party.73

71 https://www.icanz.gen.nz. 72 https://www.cfo.org.nz. 73 Adoption

Act 1955, s 16(1), (1A) and (1B).

11.5 Threshold for Entering the Adoption Process: Eligibility …

517

11.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria Adoption in this jurisdiction largely continues to rest on traditional characteristics: mostly they begin with private consensual arrangements: the procedural requirements of which remain governed by the Adoption Act 1955 and the Adoption Regulations 1959. This confines other agencies, including government bodies, to a relatively marginal role.

11.5.1 The Child The “child” may be up to 20 years of age and be married; though this is very seldom the case. There is no requirement that the child be resident within the jurisdiction74 : this can be generously interpreted. In Re Application of L,75 for example, concerned an adoption application in New Zealand in respect of a baby born in Australia. The Australian birth mother (a surrogate acting in accordance with an arrangement made with her sister in New Zealand) gave birth in Australia and then, after 7 days, brought the baby to her sister’s home. Judge von Dadelszen, considering the preliminary issue of jurisdiction, held that “it would be ignoring reality to suggest that the child’s habitual residence could be any country other than New Zealand”.76 The consent of the child is not a requirement for their entry into the adoption process.

11.5.1.1

The Welfare Threshold

The relevant welfare threshold is that set by s 11 of the 1955 Act which merely requires that the interests of a child be promoted by a decision as to whether or not he or she should enter the adoption process. Where that decision relates to a step-child, the step-parent may now be advised to consider options other than adoption as being more conducive to promoting the welfare of the particular child in the long run. In all situations where parties are contemplating adoption arrangements, Oranga Tamariki must be notified in advance in order for it to conduct the assessments necessary to ensure the child’s welfare.

74 The

Adoption Act 1955, ss 2, 3(1). NZFLR 529. 76 Ibid., para 16. 75 [2003]

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11 New Zealand

11.5.2 The Birth Parent/s Adoption being essentially a consensual process, the consent of the birth mother and/or of any guardian is required for it to begin. At this stage, the birth parent and/or guardian can exercise a right to make their consent subject to conditions about the prospective parents’ religion and the child’s religious upbringing. Once given, consents may not be withdrawn while an application is pending.

11.5.2.1

Unmarried Mother

The Adoption Act 1955 allows a birth mother to give a valid legal consent 10 days after birth of the child; a period many believe to be too short. She will be regarded as the sole guardian of a child conceived on or after 1 July 2005 if: she was not married to, or in a civil union with, the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child; and she was not living with the father of the child as a de facto partner at any time during that period. If the child was conceived before that date, the mother will be regarded as the sole guardian if the first condition is satisfied and she was not living with the father of the child as a de facto partner at the time the child was born.77

11.5.2.2

Unmarried Father

If the mother is the child’s sole guardian then the consent of the father to the proposed adoption of their child is not required unless the court considers obtaining it to be “expedient”.78 If such a father wishes to be heard by the court in relation to the proposed adoption, he must first acquire guardianship status either by agreement with the mother that he be so registered79 or by application to the Family Court to be appointed guardian. However, the father may not be known, or his whereabouts may be unknown, or the birth mother may refuse to disclose his identity.

11.5.2.3

Failed Parental Rehabilitation

Under the Oranga Tamariki Act 1989, s 5, it should be recognised that:: (c)(iv) wherever possible, the relationship between a child or young person and their family, wh¯anau, hap¯u, iwi, and family group should be maintained and strengthened.

77 The

Care of Children Act 2004, s 17. Adoption Act 1955, s 7(3)(b). 79 The Care of Children Act 2004, s 18. 78 The

11.5 Threshold for Entering the Adoption Process: Eligibility …

519

This is binding on both court and Oranga Tamariki. It is reinforced by: s 5(1)(c)(i) which states that ‘the primary responsibility for caring for and nurturing the wellbeing and development of the child or young person lies with their family, wh¯anau, hap¯u, iwi, and family group’; s 13(2)(b)(i) that support or services ‘should strengthen and support the child’s or young person’s family, wh¯anau, hap¯u, iwi, and family group’; and s 13(2)(b)(ii) that ‘intervention into family life should be the minimum necessary to ensure a child’s or young person’s safety and protection’. Under s 13(2)(d) ‘a power under this Part that can be exercised without the consent of the persons concerned is to be exercised only to the extent necessary to protect a child or young person from harm or likely harm’. Further, should Oranga Tamariki have cause to remove a child, then s 13(2)(h) adds that: …the child or young person should, wherever that is possible and consistent with the child’s or young person’s best interests, be returned to those members of the child’s or young person’s family, wh¯anau, hap¯u, iwi, or family group who are the child’s or young person’s usual caregivers.

An onus is clearly placed on Oranga Tamariki to give preference to supporting the continued care of a child within their birth family; non-consensual adoption must be a last resort when all efforts to rehabilitate safe parental care have failed. This is extremely rare.

11.5.2.4

Kinship Placement

Such placements, whether initiated by the birth parent/s or following a care order by Oranga Tamariki, are a long standing characteristic of child rearing in M¯aori communities (see, further, Sect. 21.5.3.1).

11.5.3 The Adopters: Eligibility and Suitability Criteria Applicants can be single or joint, gay or heterosexual but it is unclear whether civil union partners can adopt80 and it was noted above that there are conflicting decisions on whether an unmarried gay couple can do so. In an unusual decision, a divorced couple was allowed to adopt a young person whom they had continued to foster despite their divorce.81 One of the applicants must be aged 25 or older and at least 20 years older than the child; or aged 20 or older and a relative of the child; or be a birth parent of the child. The usual age limits, applicable to adopters in other countries, do not apply in New Zealand: there is no upper age limit. The situation where applicants are an unmarried couple was considered by the Family Court in Re Application by AMM and KJO to adopt a child 82 a case where 80 Re

Application by AMM and KJO to adopt a child [2010] NZFLR 629. Gordon and Archer [2019] NZHC 184. 82 [2010] NZFLR 629. 81 Re

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11 New Zealand

there was nothing militating against an adoption except for the fact that the applicants were unmarried. The woman was the child’s birth mother, the child was born by means of donor insemination and the genetic father was unknown. The male applicant had lived with the mother for 10 years and had been the child’s father-figure from the age of 18 months. The court found that the anti-discrimination provision of the New Zealand Bill of Rights Act 1990, and in particular the marital status ground,83 would be breached if adoption was restricted to married couples as suggested by the ordinary meaning of “spouse” in the 1955 Act and explained84 : We conclude that a meaning more consistent with the right to freedom from discrimination can be found. It is to interpret "spouses" as including de facto couples of the opposite sex. Although not the meaning that was intended at the time of enactment, it is a meaning that is consistent with the purposes of the Act, is not a strained meaning of ""spouse", and is workable within the other parts of the Act. It will have quite limited consequences beyond the area of adoption.

Ultimately, an adoption order was granted. Following submission of an application (accompanied by names of two referees, medical information and permission to conduct police checks) to the local Oranga Tamariki office, prospective adopters are invited to attend an adoption education and preparation programme after which they undergo a period of assessment conducted by specialist social workers. On submission of a satisfactory ‘Home Study Report’ and approval of their eligibility and suitability as adopters, applicants are then assisted to compile a personal and family profile—explaining their motivation, interests and particular strengths—for presentation to birth parents, who then choose who is to adopt their child. LP and JP v. Department of Child, Youth and Family Service85 concerned a couple seeking to adopt N, a 2-year-old child from Thailand. In the course of proceedings an issue arose relating to the Home Study Report. The authorities had advised the plaintiffs they would be able to respond to concerns raised—in what turned out to be a negative report—before it was finalised, but in fact this never occurred. The plaintiffs asked the court to rule that the adoption authorities had acted unreasonably and in breach of the laws and rules of natural justice; arguing that the principle of the best interests of the child should only be a consideration and not paramount. The court ruled that: the authorities had been correct to treat the welfare and interests of the child as the paramount consideration; but that by denying them a fair opportunity to respond to the report’s findings, the authorities had not treated them in accordance with the principles of natural justice; the report was held to be unlawful and declared invalid.

83 New

Zealand Bill of Rights Act 1990, s 19, with the anti-discrimination grounds appearing in Human Rights Act 1993, s 21. 84 Re Application by AMM and KJO to adopt a child, op cit at [50]. 85 [2001] NZHC 601; [2001] NZFLR 721.

11.5 Threshold for Entering the Adoption Process: Eligibility …

11.5.3.1

521

Third Party Adopters

‘Stranger’ adoptions—where the prospective adopters are unrelated in any way to the child concerned—require applicants to undergo the full eligibilty/suitability assessment as outlined above. As such domestic adoptions peter out, this process is now more typically associated with ICA. The contemporary form of third party adoption is more likely to be represented by foster parent applicants whose eligibilty/suitability is already well known to Oranga Tamariki. Nonetheless, that agency will be required to attest to the capacity of the applicants to further the paramount welfare interests of the child in the usual Home Study Report. A sole male applicant will be unable to adopt a female child unless the Family Court is satisfied that the applicant is the child’s father or that there are special circumstances.

11.5.3.2

First Party Adopters

The Adoption Act specifically declares the following to be eligible adopters: a birth parent alone86 ; a birth parent applying jointly with a step-parent (the spouse of a birth parent)87 ; a grandparent; a brother or sister; or an uncle or aunt.88 Proposed adoptions by a step-parent, other family member, or as sequel to surrogacy arrangements adoptions, are exempted from the full approval and training process with the effect of expediting such applications. Typically, third party adoptions occur most often within the M¯aori community when private arrangements are made between birth parent/s and a relative. The parties are required to serve notice of their intentions on Oranga Tamariki which must then undertake the usual eligibilty/suitability assessment and satisfy itself that a placement for that purpose would be compatible with the paramount welfare interests of the child concerned (see, further, Sect. 21.5.3.1). Step-parents Step-parents are encouraged to consider the appropriateness of less radical alternatives to adoption such as parenting orders or guardianship. The Family Court, in stepparent adoption applications, will request an adoption social worker report which assesses the child’s relationship with both birth parents and the step parent, and their understanding of the adoption process. The birth parents will also be interviewed.

11.5.3.3

Intercountry Adopters

An application is made to the local Oranga Tamariki office providing: the names of two referees; medical information from the family doctor; permission to conduct a Police check; a psychological report if required; and financial details. A specialist 86 The

Adoption Act 1955, ss 3(3), 4(1)(c).

87 Ibid. 88 The

Adoption Act 1955, s 2, s 4(1)(b).

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11 New Zealand

social worker from Oranga Tamariki will then undertake an assessment programme and complete a Home Study Report assessing applicant eligibility and suitability.

11.5.3.4

Single and Same Sex Adopters

The Marriage (Definition of Marriage) Amendment Act 2013 was enacted with a provision extending adoption eligibility to married same-sex couples. However existing adoption legislation presented obstacles. This had been evident in Re application of AMM and KJO to adopt a child 89 when the court demonstrated a willingness to extend the meaning of “two spouses” in the Adoption Act 1955 to include opposite-sex couples in a stable committed relationship, but doubted whether this interpretation could stretch to include same sex couples. Such doubts were laid to rest in Re Pierney and Hsieh90 when Judge McHardy of the Auckland Central Family Court interpreted “spouse” to include same-sex de facto couples for joint adoption application purposes so as not to discriminate on the grounds of sexual orientation and thereby breach the HRA. This was followed by Adoption Action Incorporated v. Attorney-General,91 when the HR Review Tribunal found, in a forthright ruling, that the Adoption Act 1955 and the Adult Adoption Information Act 1985 contradicted the Human Rights Act and the Bill of Rights Act by discriminating against people based on sex, age, marital status and disability. Among other consequences, this out-dated adoption legislation prevented same-sex unmarried couples from adopting. These were landmark decisions in New Zealand adoption law, even though they took opposite approaches to adoption by same sex unmarried couples.

11.6 Pre-placement Counselling As the Law Commission pointed out “the current law does not require prospective adoptive parents and the birth parents to undergo any counselling or assessment prior to the adoption of a child”.92 This, as it goes on to note, is contrary to UN CRC, Article 21, to which New Zealand is a signatory state. The availability of counselling services is considered essential in other countries, such as the UK where the offer to provide such is a mandatory responsibility of the statutory authorities. Oranga Tamariki provides a programme of education and training as a standard preliminary for all prospective adopters but have no statutory responsibility to offer pre-adoption counselling. In relation to international adoptions, ICANZ—an 89 [2010]

NZFLR 629. NZFC 9404, [2016] NZFLR 53. 91 [2016] NZHRRT 9, [2016] NZFLR 113. 92 See, further, New Zealand Law Commission ‘Ancillary Services’ p. 38 at: https://www.nzlii.org/ nz/other/nzlc/pp/PP38/PP38-14_.html. 90 [2015]

11.6 Pre-placement Counselling

523

accredited body working in accordance with Hague Convention requirements—does provide pre-adoption counselling and training.

11.7 Placement Rights and Responsibilities The fact that adoption is a consensual process in New Zealand, coupled with the birth parent/s right to select adopters for their child, places them in a singularly powerful position in the adoption process; certainly relative to their U.K. counterparts. Because such a high proportion of domestic adoptions are kinship or step-parent in nature, this decision is one that attracts minimal professional scrutiny.

11.7.1 Authority to Place A Placement Approval Certificate, issued by Oranga Tamariki to approved prospective adopters, is a prerequisite for the adoption placement of any child in New Zealand, whether domestic or ICA. No child may be legally placed for adoption, nor may any relative receive or maintain a child for that purpose, unless such a certificate has been issued.

11.7.1.1

Placement by Birth Parent

The decision to place a child for adoption, and the choice as to with whom to place, is that of the birth parent/s, but they are unable to act unilaterally—unless it is to place their child with a relative. Every year a small number of such adoption placements are made. The decision is usually taken after face-to-face meetings between birth parent/s and prospective adopter/s. Under the Adoption Act 1955, s 6, children under 15 years of age may not be placed by a birth parent nor kept in the home of a non-relative, for the purpose of adoption, without the advance approval of Oranga Tamariki or under an interim order for adoption.93 Legal consents must be sworn and health and safety checks completed. Where, as a sequel to surrogacy, a child is to be adopted, the birth mother may directly place, or authorise the placing, of that child with the prospective adopters who, with her agreement, are legally permitted to assume care responsibility immediately after birth.

93 LP

721.

and JP v. Department of Child, Youth and Family Service [2001] NZHC 601; [2001] NZFLR

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11 New Zealand

11.7.1.2

With Consent

The birth parent/s consent decision—to place their child for adoption—cannot be taken within 10 days of the birth of that child. The consent is for a specific placement with prospective adopters chosen by the birth parent/s. At this stage the recipients may also make a contact agreement about any form of post-adoption contact the birth parents wish to have with the child. Once parental signed consent is available a direct placement can be made on the strength of a 6 month interim adoption order; a social work report to the court is a prerequisite for such an interim order.

11.7.1.3

Without Consent

Adoption is a consensual process in this jurisdiction: a placement for that purpose is illegal if made without the consent of the birth parent/s or guardian unless the court has dispensed with the need for it under s 8.

11.7.1.4

Placement by Accredited Body

An accredited adoption agency social worker is authorized under the Adoption Act 1955, s 6(2), to make adoption placements. The agency is crucially positioned to set the parameters for placement as it will present the birth parent/s with a selected portfolio of profiles, personally compiled by prospective adopters, which portray their family and circumstances in as favourable a light as possible.

11.7.1.5

Placement by Local Authority

Oranga Tamariki will authorise the change in status—from foster care placement to an adoption placement—in circumstances where it has agreed that foster parents should apply to adopt a child in their care. “However”, Bill Atkin adds, “this is rare”.94 It will also be involved with placement agencies such as ICANZ and Compassion for Orphans in relation to ICA placements.

11.8 Placement Supervision While an interim adoption order is in force (or where a placement has been approved by a social worker) a legal duty rests on the agency involved to supervise the placement and report to the court. As stated in the 1955 Act95 : 94 Note 95 The

to author, 06.06.2020. Adoption Act 1955, s 15(2).

11.8 Placement Supervision

525

So long as an interim order remains in force in respect of any child— (a)

(b) (c) (d)

the person or persons in whose favour the order is made have the role of providing day-to-day care for the child; and must comply with all terms (if any) specified in the order in respect of the role of providing day-to-day care for the child: any social worker may, at all reasonable times, visit and enter the residence in which the child lives: the child shall not be taken out of New Zealand without leave of the court: the person or persons in whose favour the order is made shall give to a social worker at least 7 days’ notice before changing his, her, or their residence: provided that where an immediate change of residence is necessitated by an emergency it shall be sufficient if notice is given within 48 hours after leaving the residence occupied prior to the change.

11.8.1 Removal of Child An adoption placement is under court protection from the time an adoption application is lodged in court. The child concerned may not be removed except by Oranga Tamariki or as directed and authorised by the court.

11.9 The Hearing The Family Court has exclusive responsibility for all domestic adoption applications. The requirements regarding attendance are stated in the 1955 Act, s 22, which provides for the hearing to be held in camera with the parties and the subject child in attendance and, in some circumstances, the birth parent/s may also be present.

11.9.1 Where Consent Is Available The 1955 Act, ss 7–9, govern consents by birth parents and guardians. Under the 1955 Act, ss 7(6) and 11(c), consents may be made subject to conditions about the prospective parents’ religion and the child’s religious upbringing. When a person is applying alone to adopt a child then, if married, their spouse must also consent to the adoption unless they are permanently separated. The Family Court will only make an adoption order with the consent of of the birth mother and sometimes the birth father unless grounds exist for dispensing with it. It is a criminal offence to induce

526

11 New Zealand

consent—by fraud, duress, undue influence (by payment or otherwise), or by other improper means—to an adoption.96 A consent validly given may be withdrawn at any time while neither an interim order nor an adoption order is in effect. However, the right to withdraw ends once such an order has been made.97

11.9.1.1

Consent of Birth Mother

Before 1955 the mother’s consent was not legally valid unless she knew the names of the adopters. This is no longer necessary but her consent is a legal necessity unless the need for it can be dispensed with under the Adoption Act 1955, s 8, on the grounds of inapacity or child abuse/neglect.

11.9.1.2

Consent of Child

Under the Adoption Act 1955, s 11(b), the consent of the child is not a requirement for their adoption. However, consideration must be given to the wishes of the child having regard to the age, maturity. Given that adoption is available for young persons up to the age of 20, and given that he or she may be married, the fact that any need for their consent can be dispensed with seems a remarkable anomaly.

11.9.1.3

Consent of Unmarried Father

If the child’s birth father has lived with the mother at any time during the pregnancy, or his name is on the registered birth certificate, then he is a legally recognised guardian and his consent is required. Otherwise, under s 7(3)(b), his consent is required if expedient, or else if he is to contest proceedings he must apply for guardianship.

11.9.2 Where Consent Is Not Available The Court may dispense with the need for the consent of the birth parent/s and/or guardian where it is satisfied under the 1955 Act, s 8(1), that: (a)

… the parent or guardian has abandoned, neglected, persistently failed to maintain, or persistently ill-treated the child, or failed to exercise the normal duty and care of parenthood in respect of the child:

96 Ibid., 97 Ibid.,

s 27A(1). s 9(2).

11.9 The Hearing

(b)

527

… the parent or guardian is unfit, by reason of any physical or mental incapacity, to have the care and control of the child; that the unfitness is likely to continue indefinitely; and that reasonable notice … has been given

In Director-General of Social Welfare v. L 98 the subordinate role of the welfare principle was illustrated in the court ruling that s 8 required: that the grounds for dispensing with consent be first satisfied; only after that issue was settled should the welfare test then be applied. Where the birth parents have had very little contact with the child, a finding of neglect under s 8(1)(a) is more probable. In bothL and L v. J 99 and Rayner v. Morris100 little contact by the birth parents over two years was decisive in dispensing with consent. By contrast in Director-General of Social Welfare v. H,101 a mother’s persistent visits and requests for the return of her twins were persuasive in the court’s decision not to dispense with her consent despite the Department’s contrary arguments. That parental incapacity can be determinative was evident in Application by W (adoption)102 where both birth parents suffered from mental illness and were found to be unable to perform normal parental duties. A foster parent adoption application is more likely to succeed where they can show an ability to maintain and nourish the child’s relationship with his or her birth family.103 Material considerations are secondary to stability and security, and the quality of the care and relationships.104 Other critical factors are the child’s psychological status and development, and the quality of parenting. Psychological issues have also been held to take precedence over culture.105 In the matter of B (adoption)106 it was held that the long-term advantages to the child of being adopted by foster parents outweighed the immediate stress of being returned to his birth mother; though there might have been a different outcome if both birth parents had been in agreement.

11.10 Thresholds for Exiting the Adoption Process Provided the court is satisfied that the necessary consents are available (1955 Act, s 8) or can be dispensed with (1955 Act, s 7(2)(a)), that the applicant/s meet the eligibility and suitability criteria (1955 Act, s 11)(a)), that the order if made would be in keeping with the subject’s welfare interests (1955 Act, s 11(b)) and that there 98 [1989]

2 NZLR 314. 4 FRNZ 497. 100 [1990] NZFLR 313. 101 (1984) 3 NZFLR 183. 102 [2002] NZFLR 913. 103 Walker v. Walker [1981] NZ Recent Law 257, per Hardie Boys J. 104 C v. C [1995] NZFLR 562. 105 Powell v. Duncan [1996] NZFLR 721. 106 [1999] NZFLR 161. 99 1988)

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11 New Zealand

is no evidence of improper payments, then there is little likelihood of an order being refused.

11.10.1 The Welfare Interests of the Child The court must be satisfied, under the 1955 Act, s 11: (b) That the welfare and interests of the child will be promoted by the adoption, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child;

Notwithstanding the above rather cursory reference to welfare, the Court of Appeal at an early stage established that welfare interests were to be given a paramount weighting.107 In applications from foster parents the welfare interests of the child are particularly crucial. The court will grant such an application when the consent of birth parents is available, or the need for it can be dispensed with, and the adoption is clearly in the child’s best interests. Where, for example in L v. G,108 a nine-year-old girl had lived with her foster parents for most of her life, with little contact from her birth parents, Judge Mahony dispensed with consent and granted the application. He added that before contact could be re-established with her birth family, the child must be assured of her position within the foster family as, if not, the contact could be unsettling and detrimental to the child’s welfare. LP and JP v. Department of Child, Youth and Family Service109 concerned a couple who sought to adopt N, a 2-year-old child from Thailand, whose parents had visited and as pre-arranged left N with them before returning to Thailand. Oranga Tamariki (then the Department of Child, Youth and Family Services) refused to support the couple’s adoption application, considering it to be neither in the best interests of N or in compliance with her rights under UN CRC, and instead ordered her return to her family in Thailand. The couple persisted with their adoption application and when the matter came before the court it made two important findings in relation to the relevance of international Conventions to New Zealand adoption law. Firstly, it found that the authorities had been correct to consider the interests of the child as being of paramount importance as required under UN CRC, Article 21, even though no mention of paramountcy then existed in domestic adoption law. Secondly, it found that while the ICCPR, Article 23, provides for a ‘right to found a family’ this did not include a right to adoption. On the facts before it, the court expressed the view, in compliance with UN CRC, that ICA should be considered as an alternative only where a child cannot be placed in foster or an adoptive family or other suitable manner in country of origin, but in this instance the child was from an intact family, with no 107 Director-General

of Social Welfare v. L [1989] NZCA 130; [1989] 2 NZLR 314 (CA). I DCR171. 109 [2001] NZHC 601; [2001] NZFLR 721. 108 (I980)

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evidence that her parents were unable to provide for her welfare and interests, and some evidence that her mother may not have given a free and informed consent to the adoption. Further, the court found that the arrangement between LP and JP and N’s family was unlawful: under New Zealand law (as such a child may not be placed and maintained in the home of another for the purpose of adoption without a social worker’s approval or interim order); and under Thai law (which does not permit private intercountry adoptions). However, as there had been a procedural error, the court did not reach a conclusion on the application before it but remanded the matter back to Oranga Tamariki for the deficiency to be corrected.

11.10.1.1

The Paramountcy Principle

In the above case of LP and JP110 the High Court found that the paramountcy principle was the correct test to apply when determining whether or not an intercountry adoption should proceed. This was the case notwithstanding the fact that it was not then stated as such in any domestic legislation and despite UN CRC—which establishes that principle (Article 21) —not being incorporated into Australian law. The Adoption Act 1955 goes no further than to require the court to be satisfied that the welfare and interests of the child will be promoted by the adoption—which falls well short of making paramountcy the operative test.

11.10.1.2

Unlawful Payments

The court must be satisfied that no payments have been made to any person ‘to give or receive or agree to give or receive any payment or reward in consideration of the adoption or proposed adoption of a child or in consideration of the making of arrangements for an adoption or proposed adoption’.111

11.10.2 Representing the Child’s Welfare Interests The Adoption Act 1955 has no provision requiring a lawyer to be appointed to act for the child.

11.10.2.1

Voice of the Child

The Oranga Tamariki Act 1989, s 11, requires participation from the child in most instances. The Care of Children Act 2004, s 6(2), states that “a child must be given 110 Ibid. 111 The

Adoption Act 1955, s 25(1).

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reasonable opportunities to express views on matters affecting the child” and that “any views the child expresses (either directly or through a representative) must be taken into account”. There is no equivalent in the Adoption Act 1955 although s 11 requires consideration to be given to the child’s wishes. In practice, the judiciary will most usually seek to explore a child’s wishes by directly engaging with them during the hearing. As Moody points out “there is also inherent jurisdiction for a Family Court Judge to interview the child through R 54 of the Family Court Rules”.112 Nonetheless, statute law fails to make room for the ‘voice of the child’ to play anything like a central part in a matter of such fundamental importance to their future.

11.11 The Outcome of the Adoption Process The adoption process, determined by the Family Court, takes a very traditional form in New Zealand: the court may only grant or refuse the adoption order; there is no provision in the 1955 Act for judicial discretion to instead issue an alternative order.

11.11.1 Adoption Order Under the 1955 Act, s 5, in any application for an adoption order, “if the court considers that the application should be granted, it shall in the first instance make an interim order in favour of the applicant or applicants”. All matters being favourable, it will finalise the adoption usually within 12 months of the interim order being issued. A right of appeal is a distinctive characteristic of adoption in this jurisdiction. Where a court has refused to make an interim order or an adoption order the applicant/s have one month to appeal that decision to the High Court which may, if it thinks fit, grant the order sought.113 The order is one that is unqualified in any respect other than the traditional deference to birth parent’s wishes regarding their child’s religious upbringing. The latter is a seemingly archaic remnant of patriarchical rights—inadequately representative of contemporary concerns for cultural identity—which, arguably, must give way to a broader concern for a child’s welfare interests where necessary.

112 Moody,

C., Adoption Law in New Zealand: The Rights and Well-Being of the Child’, [2008], op cit. 113 Ibid., at s 13A.

11.11 The Outcome of the Adoption Process

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Conditional Adoption Order

The birth parent/s or guardian are entitled under the 1955 Act, s 11(c), to attach a condition specifying the religious upbringing of the child. Post-adoption contact arrangements are the norm but are not legally binding unless included in a parenting order relating to contact under the Care of Children Act 2004.114

11.11.2 Alternative Orders As stated, at this stage in the process there is no possibility of an alternative order being issued. The advisability of diverting a prospective adopter to proceedings for an order more appropriate in the circumstances for their relationship with a particular child—such as a parenting order or guardiianship—needs to be addressed before adoption proceedings are commenced.

11.12 The Effect of an Adoption Order The 1955 Act, s 16, specifically addresses the legal effect of an adoption order on the parties concerned.

11.12.1 The Child As throughout the common law jurisdictions, on adoption the child in New Zealand is henceforth considered in law to be ‘the child of the adoptive parent, and the adoptive parent shall be deemed to become the parent of the child, as if the child had been born to that parent in lawful wedlock’. The adoptee will automatically acquire the domicile of the adopters115 and ‘shall be deemed to cease to be the child of his existing parents’.116 However, and unlike the law in many other jurisdictions, any legacy or inheritance under a will or other such instrument, to which the adoptee would have been entitled had it not been for the adoption, will continue to be valid.117

114 Gordon

v. Campbell [2015] NZHC 1264, [2015] NZFLR 841. Adoption Act 1955, s 16(2)(f). 116 Ibid., s 16 (2)(a) and (b). 117 Ibid., s 16 (2)(d). 115 The

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11.12.1.1

Name

The 1955 Act, s 16(1), declares that the adoptee shall bear the surname of the adopter/s who have the discretion to determine such Christian name as they consider appropriate.

11.12.1.2

Citizenship

Normally an adopted child will automatically acquire citizenship. However, since 1992, following a change in the law, this is now restricted to adoptees aged 14 or less. For children under that age and adopted overseas by New Zealand citizens, Immigration New Zealand will need to see evidence that an application for New Zealand citizenship for the child has been made, as well as evidence of the adoption order for a visitor visa to be considered.

11.12.2 The Birth Parent/s Upon an adoption order being made, ‘the adopted child shall be deemed to cease to be the child of his existing parents (whether his natural parents or his adoptive parents under any previous adoption), and the existing parents of the adopted child shall be deemed to cease to be his parents, and any existing adoption order in respect of the child shall be deemed to be discharged’.118 Any affiliation order or maintenance order in respect of the adopted child will similarly cease to have effect.119

11.12.3 The Adopters As is clear from the above, the effect of an adoption order is that the adopter/s step into the shoes of the birth parents and are fully vested with the latter’s legal responsibilities in respect of the child; this may include an obligation to ensure that the child’s religious upbringing will conform to that of the birth parents. However, unlike the traditional interpretation of that transfer, the former exclusiveness of the adopter/s status will now be compromised by the adoptee’s legal right to eventually acquire identifying information regarding their birth family. Moreover, and again unlike formerly, the adopter/s will almost certainly be required to maintain some level of contact between adoptee and their birth parent/s.

118 Ibid., 119 Ibid.,

s 16 (2)(b). s 16 (2)(i).

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11.12.4 Dissolution of an Adoption Order Under the 1955 Act, s 20(1), ‘the court may in its discretion vary or discharge any adoption order … subject to such terms and conditions as it thinks fit’. The Registrar General will, on notification of any such variation or discharge, amend the register accordingly.120 This wide discretionary remit is unusual and a singular characteristic of the New Zealand adoption process.

11.13 Post-adoption Support Services There is no legal duty resting on any agency under the 1955 Act or other legislation to provide post-adoption support services. The Hague Convention—enacted in New Zealand by the Adoption (Intercountry) Act 1997, effective from January 1999, requires—under Article 9—that postadoption services be developed and made available in respect of ICAs. While Oranga Tamariki, in its capacity as Central Authority (NZCA), will respond to requests for assistance from ICA parents in the same manner as it would in relation to the parents any child whose welfare is at risk, it has no particular suite of post-adoption services available and there is no statutory entitlement to avail of any such services in domestic statutory law.

11.13.1 Adoption Support Services Third party adoption in New Zealand derives largely from foster care and ICA, both of which are now likely to involve older children with some level of special needs. As regards the former, support in terms of resources and counselling is available from Oranga Tamariki on request while ICANZ offers support to the latter and Open Adoption Network is also available.121 Jigsaw Inc. is another organization that since its inception in 1976 has been a significant advocate on behalf of the interests of adopters while Compassion for Orphans provides a more specialised focus for those who have adopted an overseas child.122 Unlike countries such as the UK, there is no statutory entitlement to post-adoption support available to all parties in the adoption triangle, nor is there a structured system of support and multi-disciplinary expertise that can be readily accessed by right. This has attracted criticism.123 120 The

Births, Deaths, Marriages and Relationships Registration Act 1995, s 27. further at: https://adoptionoption.org.nz. 122 See, further, at: https://www.cfo.org.nz/details-of-pre-adoption-education.. 123 See, for example, Gibbs, A., ‘Parenting Adopted Children and Supporting Adoptive Parents’, Aotearoa New Zealand Social Work, Issue 22(2), 2010, pp. 44–52 at p. 49. 121 See,

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11.14 Information Disclosure, Tracing and Re-unification Services The Adoption Act 1955 governs the legal rights of the parties to an adoption and in particular defines their respective rights in relation to identifying information. The Adult Adoption Information Act 1985 provided conditional rights of access for adult adoptees and for birth parents to files of identifying information previously officially treated as ‘closed’.

11.14.1 Information Disclosure More than thirty years have now passed since Judge Mahon, in I and I v. S, commented that124 : There has been a marked change in community attitudes towards adoption in recent years with openness and lack of privacy being one of the hallmarks and with another being recognition that children require to know and require to be able to identify with their natural parents.

However, as of 2020, the law continues to deny adoptees access to their birth certificate (registering birth parent/s names) until they reach 20 years of age. At that age an adoptee is legally entitled to request a copy of their original birth certificate from the Registrar General. Access to adoption information remains governed by the Adoption Act 1955, s 23, in conjunction with the Adult Adoption Information Act 1985. The latter statute outlined for the first time a procedure to be followed by adopted persons resident in New Zealand who wished to access their original birth certificate. An adopted person aged 20 or older is entitled to apply to the RegistrarGeneral of Births and Deaths for an original birth certificate. The Registrar-General must notify the adopted person of the counselling services that are available.125 This is to ensure that the adopted person receives appropriate advice and assistance from the counsellor along with the birth certificate information. If the adopted person then indicates that he or she does wish to attend counselling, the birth certificate is sent to the relevant counsellor or counselling organisation, and the adopted person can then obtain it from that counsellor or organisation. The counsellor cannot withhold information to which the applicant is legally entitled. If the adopted person does not notify the Registrar-General that counselling is desired, the adopted person is notified that the birth certificate is being kept on his or her behalf and is then sent to the person if he or she makes another request for it. The Law Commission has drawn attention to the limitations of the 1985 Act.126 124 (1986)

2 FRNZ 112, 117 (FC). further, Griffith, K.C., ‘The Right to Know Who You Are: reform of adoption law with honesty, openness and integrity’, K. W. Kimbell, Ottawa, 1991. 126 See, the New Zealand Law Commission, Preliminary Paper 38, Adoption: Options for Reform, Chap 15, ‘Access to Adoption Information’ Wellington, 1999. 125 See,

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11.14.2 Adoption Registers From 1915 adopted children were re-registered with the names of their adopted parents. From 1955 new birth certificates showed the adoptive parents as the birth parents. Anonymity became a legal characteristic of New Zealand adoptions: adoption of children by people unknown to the birth mothers became more common as did the use of parental veto on information disclosure; on the issue of an adoption order, the adoptee’s original birth certificate is altered to substitute the names of the adopters for those of the birth parent/s. Consequently, adoptions have ever since became much more difficult to trace and adoptees face considerable legal and administrative obstacles in accessing accurate information.

11.14.2.1

The Adopted Children Register

Unlike the practice in countries such as the U.K., there is no separate Adopted Children Register in New Zealand. Instead, the details of a statutory adoption are assimilated into the Register of Births, Deaths, Civil Unions and Marriages. Once such details have been recorded, the Registrar may then issue the post-adoptive birth certificate.127 This will show the details of the adoptive parents rather than the birth parents.128 Any adopted person, aged 20 or older, has the right to apply in writing to the Registrar-General of Births, Deaths, Civil Unions and Marriages requesting their original birth certificate, which the latter is required to provide.129 This will record the name of the birth mother and possibly also the father. Again, unlike the practice in countries such as the U.K., there is no separate Register of Intercountry Adoptions in New Zealand. The Births, Deaths, Marriages, and Relationships Registration Act 1995, s 25, requires the Registrar-General to treat the adoption of a person outside New Zealand, whose birth has already been registered, as if the adoption had been effected by an adoption order under the Adoption Act 1955.130 Between 2013 and 2017, 2264 adoptees obtained their original birth certificates and 340 birth parents requested information.

11.14.2.2

The Adoption Contact Register

There is no such register in New Zealand. Instead, an adoptee or birth parent may apply to the Adoption Information and Services Unit of Oranga Tamariki and begin 127 Note

that the Births, Deaths, Marriages, and Relationships Registration Bill 2018 proposes to introduce measures that will allow gender diverse people to more easily change the gender recorded on their birth certificates. 128 See, further, at: https://www.dia.govt.nz/Births-deaths-and-marriages. 129 Adult Adoption Information Act 1985, ss 3–6, 11. 130 Also, see, Adoption (Intercountry) Act 1997, s 30.

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the formal process of accessing the identifying information which may provide a pathway to contact.

11.14.3 Conditional Access While open adoption is now the norm, this does not apply retrospectively. Birth parents who relinquished children for adoption prior to 1st March 1986 (but not after that date) have the right to endorse their child’s birth certificate with a direction that identifying information be witheld. An adopted person aged 19 or older may similarly endorse their original birth certificate to the effect that they don’t want contact with either or both of their birth parents. These are in effect vetos denying access to information held by the Dept of Internal Affairs and by Oranga Tamariki; an endorsement is valid for 10 years and may be renewed.

11.14.4 Tracing and Re-unification Services There is no statutory responsibility to establish and deliver such services nor any legal right to access the information necessary for tracing: quite the opposite; many adoption files are ‘sealed’ as birth parents have vetoed information disclosure.

11.14.4.1

The Adoption Agency

Oranga Tamariki is the government agency with responsibility for facilitating enquiries from adoptees and birth parents regarding the facts and circumstances relating to individual adoptions. It also carries responsibility for managing an archive of adoption agency files.

11.14.4.2

The Role of Adoption Support Agencies

Jigsaw Inc, founded in 1978, is a government-funded mediating agency that provides search and contact services to assist those adoptees and birth parents who wish to explore their relationships.

11.14.4.3

Agency Records

The Adoption Act 1955, s 23, restricts the inspection of adoption records to a Registrar or social worker (for the purposes of s.23A(1)) and to those authorised under the Adult Adoption Information Act 1985 or by order of the court. Access to adoption

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537

records held by Oranga Tamariki is crucial as in many cases they provide more detailed information than is contained in the court adoption files. However, the 1985 Act, s 27(1)(b), allows a decision-maker to refuse to disclose personal information if it would involve the unwarranted disclosure of the affairs of another person or a deceased person and, as the Law Commission point out, this has been interpreted in such a way as to deny an adopted child access to information about their birth parents.131 While it is clear that the 1985 Act does not govern access to adoption records held by non-government adoption agencies—such as the former Bethany Centre—which may hold a considerable volume of archived files, it is uncertain as to what exactly the constraints on access and the responsibilities of such agencies are in respect of their records.132 The Privacy Act 1993 may also impact upon rights of access to adoption information. The question of whether ‘the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual or a deceased individual’ is going to have a bearing on enquiries made by a relative, such as a sibling, for information that is both about himself or herself and the adopted person.133

11.15 Conclusion The Adoption of Children Act 1881 introduced adoption as a statutory procedure and thereby granted New Zealand the privilege of being the first of the common law nations to acquire this formal legal process; preceding England by some 45 years. Ironically, the current Adoption Act 1955 confers the reverse distinction by leaving New Zealand with what is probably now the most out of date adoption legislation to be found among those same nations. Two decades have passed since the New Zealand Law Commission134 urgently recommended reform of the adoption law and one since Moody rightly commented that “the Adoption Act is archaic. It is based on parental rights and fails to address the rights, needs, or wants of children”.135 An important characteristic of the adoption process in New Zealand is the availability of options that allow it to be by-passed; even though those options are discretionary. Specifically, birth parents can apply for chosen carers to have guardianship of their child through guardianship and parenting orders issued under the Care of 131 See,

the New Zealand Law Commission, Preliminary Paper 38, op cit, citing 7 CCNO 224 (L J Castle). 132 See, further, Slane, B.H., Privacy Commissioner, ‘Access to Adoption Information’, 1 March 2000, at: https://www.privacy.org.nz/news-and-publications/reports-to-parliament-and-gov ernment/access-to-adoption-information/. 133 The Privacy Act 1993, s 29(1)(a). 134 See, Adoption and its Alternatives: A different approach and a new framework, NZLC R65, Wellington, (2000). 135 Moody, C., ‘Adoption Law in New Zealand: The Righta and Well-Being of the Child’, [2008], op cit.

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Children Act. These vest legal responsibility for the day-to-day care of the child in the named person/s. Adoption law and practice in New Zealand suffers, to an unusual degree, from a lack of overall coherence. The Adoption Act 1955 continues to be the governing legislation but its provisions sit uncomfortably alongside those of the Adult Adoption Information Act 1985: the legislative intent of the former being wholly at variance with that of the latter; both seeming dated and restrictive. Openness, now the prevailing ethos of contemporary adoption practice, is by no means reflected in the more traditional principles of secrecy, anonymity and a ‘fresh start’ for all parties as perpetuated by the 1955 Act. As time passes the many deficits in adoption law, most noted repeatedly by the Law Commission, seem increasingly anomalous within an otherwise modern family law framework that addresses matters such as same sex marriage and surrogacy.

Part IV

Contemporary Law, Policy and Practice in a European Civil Law Context

This part considers the law currently governing the adoption process in four European civil law countries: Sweden, France, Germany and Romania. Civil law systems rely on a civil code to make laws and have done so since its origins in the reign of the Byzantine emperor Justinian I (529–534 ad). Many nations throughout the world use a civil code, including the three examined in this part together with most other European countries. Essentially, a civil code system collates and codifies private laws in systematic fashion to ensure their standardized application. Amendments are by statute which are simply incorporated into the code. The system is so detailed and prescriptive that the judicial role is confined to implementing the law: the proceedings are specified, offences are clearly defined, and the related penalties are fixed; there is little or no margin for interpretation or discretion. Unlike the adversarial basis of the common law system, the civil law approach is inquisitorial with the judge leading proceedings by questioning the parties to determine facts, clarify issues and rule on compliance with or breach of civil code provisions. Family law tends to be consolidated within the code under a heading such as ‘Law of Persons’ within which a subdivision will systematically address all matters relating to adoption and provide a comprehensive taxonomy of associated rulings.

Chapter 12

Sweden

12.1 Introduction Sweden is a constitutional monarchy. In 2019, its racially mixed population of more than 10.3 million included 2.6 with a foreign background.1 It is a strongly decentralised country where most services provided for the benefit of or relating to children are the responsibility of the social welfare board in each of Sweden’s 290 municipalities. It has a highly developed welfare system. This civil law country has a constitution which was formally adopted in 1809 but, until relatively recently, it has been of little relevance to the making and practice of domestic law.2 As in many other civil law countries, Parliament (the Riksdag) is by far the most powerful branch of government with little scope remaining for judicial discretion to interpret and develop the law and therefore little in the way of case law for a study such as this to draw from. The roots of the law relating to children lie in the Code which initially addressed marital matters and has existed since 1734.3 The ‘Code of 1734’ (as it is referred to in Sweden) was divided into sections based on subject matter, but only one or two of the initial paragraphs are still operative. What has survived is the sectional arrangement which provided a basis for introducing child related laws in the early twentieth century. These laws, concerning parental rights and duties, were consolidated in the Parental Code of 1949 and have subsequently been added to and amended many times. Most recently, during 2018–19, comprehensive amendments were made to the Parental Code; particularly to Chap. 4. Family law 1 Although Sweden remains largely culturally homogenous, with some 87% of the population being

ethnic Swedes, approximately12% of residents were born abroad, and about one fifth of the population are either immigrants or the children of immigrants. Sweden has five minority languages—Sami, Finnish, Meänkeli (Tornedal Finnish), Romani, Chib and Yiddish. 2 See, Ortwein II, B.M., The Swedish Legal System: An Introduction, 13 IND. INT’L & COMP. L. REV. 405, 411 (2003) at p. 413. 3 Ibid.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_12

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cases are heard in Sweden’s general court system, usually by three lay judges and one professional judge.4 This chapter is concerned both with outlining the adoption process in Sweden and also with examining how that process in a civil law context differs from that which typifies the common law jurisdictions studied in Part III. It applies the same template but does so flexibly in order to note and assess the significance of material that might not otherwise be included. Beginning with social and legal background information on adoption, it proceeds by identifying the significant trends in modern adoption practice, considering the main elements of current policy and outlining the prevailing legislative framework. The template of legal functions (see, Chap. 3) is then applied to reveal the actual mechanics of the process in action. The chapter concludes with a summary and assessment of the more distinctive and significant characteristics of the contemporary adoption process in Sweden.

12.2 Background Relative to many other western countries, Sweden has an established reputation for placing a high social priority on providing support for family life, particularly child welfare with low cost preschool and child care facilities, and for doing so in ways that are non-authoritarian, respectful of family autonomy and integrity, while being comparatively non-interventionist. A small, socially cohesive nation with less poverty and a more even distribution of wealth than its European neighbours, an established acceptance of high taxes to fund quality social services, coupled with high levels of civic responsibility and of trust in government, Sweden demonstrates its essentially democratic socialist politics in the relationship of mutual respect cultivated between state and family.

12.2.1 The Social Context Giving Rise to Adoption The period of rapid industrialisation and urbanisation at the end of the nineteenth century effected the established pattern of family life in Sweden, as it had done in England, leading to similar social problems and prompting the introduction of Sweden’s first child welfare legislation in 1902. Unlike England, but in keeping with Sweden’s approach to family matters, responsibility for administering the provisions was given to special child welfare committees in the local communities for preventative measures, rather than ascribed to the justice system for policing and punishment purposes. Children found to be, for whatever reason, without adequate parental care were then placed by the authorities in approved foster care homes or, though a much lesser extent, accommodated in residential units. 4 Ibid. at pp. 405–06. Swedish courts handle only about 30,000 family law cases in an average year.

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543

The latter half of the twentieth century saw Sweden develop what became perhaps the most comprehensive welfare state of its time. No western economy had, or indeed has, a higher percentage of public employees, public expenditures, or higher tax rates, than Sweden. As levels of taxation soared, earlier than in other western societies, so employment became a necessity for both parents and the upbringing of their children became a responsibility to be shared with paid carers. This was accompanied by an earlier uptake on family planning, abortion, contraception and welfare support for teenage mums and an emphasis on the principles of social equality in both home and marketplace. The evolution of the social role of adoption in Sweden must be seen against the scale and impact of its institutionalized welfare state where corporate provision has, for many decades, largely replaced responsibilities that traditionally rested with the nuclear family.

12.2.1.1

Marriage and Family Breakdown

With its low rates of marriage, high divorce rates, and with gay marriage rights established for the past two decades,5 Sweden became accustomed to a different pattern of parenting and more fluid family arrangements earlier than other countries. The marriage rate in 1980 was 7.1 (per 1000 of the population aged 15–64), remaining at that level for the next 2 decades and rising only to 8.3 in 2008.6 Since the 1960s its divorce rates have been among the highest in Europe. In 1997 it registered the lowest marriage rate in recorded history and currently it is estimated that only 60% of Swedish people are married by the time they’re 40, compared to nearly 90% of Americans. Among 17 year olds, one in three comes from a family that has experienced divorce and is most likely living with a single parent: more than 800,000 families are headed by cohabiting partners and 250,000 by lone parents. As of 2020, 75% of children under 18 lived with both birth parents, while 18% lived with a single mother or father and 5% with a stepfather or stepmother.7 Since February 1st 2003, gay and lesbian couples married or in a registered legal partnership, have been able to adopt children both within the country and from abroad8 despite misgivings that as “most adoptions concerned children from other countries, there was a perceived risk that the child, already different due to his or her origin, would be exposed to another form of alienation as a result of the untraditional family form”.9 This legislation brought the law in Sweden into line 5 In

1994 the Registered Partnership Act granted same sex couples the same legal rights as married heterosexual couples. In 2009, same sex marriage replaced registered partnership. 6 See, U.S. Bureau of Labor Statistics at: http://www.census.gov/compendia/statab/2011/tables/11s 1335.pdf 7 See, further, at: https://sweden.se/society/children-and-young-people-in-sweden/. 8 Legislation making such provision was passed in the Swedish parliament by 198 votes to 38, with 71 abstentions. 9 See, Singer, A. , ‘Equal Treatment of Same-Sex Couples in Sweden’, in Atkin, B., (ed), The International Survey of Family Law, 2010 Edition, Family Law, Jordan Publishing, 2010 at p. 395.

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with that prevailing in Denmark, Iceland and the Netherlands.10 In addition, legally registered partners and cohabitees of the same sex are also eligible to be appointed as special joint custodians of children. The first domestic adoption by a same sex couple occurred in 201211 and by 2018 a number of such couples were adopting from countries such as Columbia and South Africa.

12.2.1.2

Unmarried Mothers

From the end of World War II to the mid-1960s, young unmarried mothers were routinely recommended/persuaded by local child welfare authorities to voluntarily relinquish their ‘illegitimate’ children for adoption.12 This changed with the introduction of the ‘Welfare State’ in the 1960s which brought with it child care allowances and parental leave, housing subsidies, unemployment insurance and access to family planning services. Nowadays, the lack of social stigma coupled with relatively generous state benefits for single parents results in very few Swedish children becoming available for adoption by third parties.13 Indeed, as Schiratzki points out, there is currently a ”high percentage of children born to unmarried parents, 65 per cent”.14 In fact nearly 20% of Swedish households with children are single-parent households and very few children are now voluntarily relinquished for adoption; in 2000, for example, there were only 16. The rate of births to unmarried women increased from 39.7% of all live births in 1980 to 54.9% in 2016, but it must be borne in mind that most such women are not single parents but have simply chosen to cohabit rather than marry.15 The growing numbers of non-marital children born annually in Sweden16 are such that for many years now the law has ceased to make any legal distinction between children based on the marital status of their parents: since 1970, Swedish law has guaranteed equal inheritance rights for children born to married and unmarried parents; indeed 10 The Netherlands, unlike Sweden, has a policy of refusing homosexual couples permission to adopt from abroad on the grounds that this could alienate ‘sending’ countries to the detriment of heterosexual Dutch couples seeking intercountry placements. 11 See, further, at: https://www.qx.se/livsstil/livet/20532/de-forsta-samkonade-att-fa-adoptera/. 12 See: Allmanna Barnhuset, A., Adoption, Stockholm, 1955; Socialstyrelsen (1959) Adoption. Stockholm: Socialstyrelsen (Allmanna Rad och Anvisningar 117/1959; and Vinnerljung B (1 992) 235 syskon med olika uppvaxtoden—en retrospektiv aktstudie [235 siblings raised in nonshared environments— a retrospective case file study]. Lunds Universitet: Meddelanden fran Socialhogskolan 1992:5. 13 See, Tiberg, H., (et al. eds.), Swedish Law, 375 1994. 14 Schiratzki, J., ‘Children’s Rights to Family Life and the Swedish Constitution’, in Haugli, T., et al. (eds), Children’s Constitutional Rights in the Nordic Countries, Koninklijke Brill, 2020, at pp. 357–373. 15 See, further, at: https://www.euronews.com/2018/04/16/number-of-births-outside-marriage-risein-european-union. 16 Currently, fifty percent of Swedish children are ‘born out of wedlock’ compared to only one percent of children in Japan. Although it should be noted that most are born to cohabiting parents as there are very few single mothers giving birth in Sweden (compared to many other countries).

12.2 Background

545

Swedish legislation no longer uses the terms ‘ illegitimate children’, ‘children of marriage’, or ‘children outside marriage’. In a society where such a high proportion of parents choose not to be married, it is both inevitable and largely irrelevant that the Swedish children available for third party adoptions tend to be from unmarried parents. The policy of non-discrimination towards children of non-marital or extra marital relationships was pioneered in this jurisdiction and has since served as a model for other European nations.17

12.2.1.3

Abortion

In Sweden, legal abortion was introduced in 1938 and the present liberal law, dating from 1974, permits an abortion up to and including the 18th week of the pregnancy (12 in France, and 24 in England & Wales on medical grounds). An abortion after the 18th week is allowed only in special circumstances and with permission from the National Board of Health and Welfare. The majority of abortions are performed before the 12th week of the pregnancy (over 90%). The abortion rate increased from 18.4 per 1000 women in 1997 to 19.8 in 2017. The most recently available statistics show that 37,000 abortions were conducted in Sweden in 2017 and records the highest teenage abortion rate in Europe (69% of teen pregnancies ended in abortion in 201518 ). Clearly there is an inescapable correlation between the liberal approach of a society to abortion and the number of children available in that society for adoption.

12.2.1.4

Assisted Reproduction Services

With one of the world’s lowest birth rates, it is unsurprising that treatment services for infertility and techniques for assisting conception are well developed and readily accessible in Sweden. For infertile couples and those with conception issues, the availability of services provide an alternative to the uncertainties and complexities of the adoption process. The In Vitro Fertilization Act 1998 permits access to most treatment options—excepting embryo donation. During the 1990s the annual number of IVFs increased from 2700 to 6200, and by 2019 had reached 18,000. The annual number of live births due to this method has multiplied over this period as treatment effectiveness improved. Donor insemination is also available but is not utilized as frequently. Since the introduction of legislation in 1984, those born by IVF have had a right to access the identity of their donors.

17 See, Schadbach, K., ‘The Benefits of Comparative Law: A Continental European View’, 16 B.U.

INT’L L.J. 331, 388 (1998). 18 See, further, at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4852976/.

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12 Sweden

Lesbian couples in a relationship registered under the Registered Partnership Act 1994 (now abolished) were granted a right to access artificial insemination in legislation passed in 2005, a right since extended to cohabiting couples.19 However, “a further requirement for the establishment of legal parenthood is that the child is conceived through treatment in a Swedish hospital where only non-anonymous donors are used. In this way, the child’s interest in having two legal parents and access to information about genetic origins can be satisfied …”20 As of 2019, consent to assisted reproduction with donated sperm in the course of treatment carried out overseas may provide grounds to substantiate a paternity claim. Surrogacy While surrogacy is not legally prohibited in Sweden, there is no law enabling such a service as it is not generally socially acceptable, whether on an altruistic or commercial basis, and is therefore not practised. This has not prevented some Swedish citizens from availing of the surrogacy arrangements provided by U.S. commercial service providers nor from campaigning for legislation to introduce surrogacy in Sweden.21 The legal presumption—in the Children and Parents Code—that the woman who gives birth to a child is that child’s mother, leads inevitably to complications in court proceedings concerning surrogacy arrangements.

12.2.1.5

Increase of Children in Public Care

The child care population in Sweden has grown considerably since the turn of the century: increasing by 71% between 2004 to 2012. In 2016, 38,800 children and young people were in receipt of out-of-home care, under either the Social Services Act or the Care of Young Persons (Special Provisions) Act, of whom 30% were ‘unaccompanied minors’.22 Child care matters in Sweden continue to be largely addressed by parents and state officials working together, without the necessity of a court order, to formulate an agreed plan for the child concerned. The ‘child rescue’ approach, more typical of child protection in the U.K., is not part of the Swedish tradition, instead a public social service approach to families with parenting issues has been developed. Sweden has an established reputation for placing a high social priority on supporting family life, particularly child welfare, and for doing so in ways that are less authoritarian, more respectful of family integrity and relatively non-interventionist. The official 19 See, further, at: https://www.regeringen.se/rattsliga-dokument/statens-offentliga-utredningar/ 2018/08/sou-201868/. 20 See, Singer, A. , ‘Equal Treatment of Same-Sex Couples in Sweden’, in Atkin, B., (ed), The International Survey of Family Law, 2010 Edition, Family Law, Jordan Publishing, 2010 at p. 397. 21 In 2013, the Swedish National Council on Medical Ethics (Statens medicinsk-etiska råd, or SMER), which advises parliament and the government, recommended that surrogacy and embryo donation should be allowed in Sweden on a non-commercial basis. 22 See, https://www.socialstyrelsen.se/globalassets/sharepoint-dokument/artikelkatalog/statistik/ 2019-8-6262.pdf.

12.2 Background

547

approach to child welfare matters is firmly anchored on a psychosocial approach to behaviour and an overall emphasis on preventing or repairing family breakdown.23 Consequently, the proportion of Swedish children in the public care system has usually been lower than in comparable western societies. The absolute legal ban on physical punishment, and attempts to support the law with awareness and enforcement, are credited with causing Sweden’s success in protecting its children from physical harm: studies show that while before the ban most Swedes supported physical punishment, today fewer than as six percent do so.24 In Sweden, like Ireland, foster care arrangements rather than adoption have historically provided the alternative to care in the family of origin. Private adoptions did flourish in Sweden as in Ireland in response to the particular social circumstances of the 1960s (in which the tension between traditional family values and the beginnings of more liberal attitudes to sex and individualism resulted in an increase in the number of single mothers being shamed into making alternative care arrangements for their babies). In both jurisdictions this failed to generate any corresponding initiative in the public sphere to adjust the legal framework. Residential facilities have also played a part, albeit of a specialized nature. It remains the case that, in the second decade of the twenty-first century, by far the majority of children in the public care system are in foster placements.25 Foster Care For centuries foster care has been preferred to residential care, and research from 1974–1992 clearly showed that the practice of placing children from urban families in rural foster homes continued,26 although this can now only be done on an official basis as informal placements in private foster homes are prohibited. The current governing legislative framework is provided by the Social Services Act (Socialtjänstlag; 2001:453) and the Care of Young Persons (Special Provisions) Act (Lag 1990:52 med särskilda bestämmelser om vård av unga). Placements with foster carers are made with birth parent consent under the first and without it under the second. In 2018, of those receiving out-of-home care, 23,100 (48%) were placed in foster homes; and 77% of the total were placed with the voluntary consent of parents.27 When children are placed in care, primary consideration has to be given 23 See, for example, Khoo, E., Skoog, V. and Dalin, R., ‘In and out of care. A profile and analysis of children in the out-of-home care system in Sweden’, Children and Youth Services Review, Vol 34, Issue 5, (2012), pp. 900–907. 24 However, note the 2005 report of the National Board of Health and Welfare which includes data on the number of children who have died during the last five years as a consequence of assault by another person (32), who were discharged from hospital after treatment as a consequence of assault (1, 295) and the number of children who have sought care at an emergency centre or emergency clinic (approximately 2, 500 children per year). 25 See, Socialstyrelsen, Barn och ungainsatser år 2012, 2013 at. 26 Vinnerljung, B., Svensk forskning om fosterbarnsvard En oversikt [Swedish research on foster care. A review.]. Stockholm: Liber Utbildning/CUS, (1996). 27 See, https://www.socialstyrelsen.se/globalassets/sharepoint-dokument/artikelkatalog/statistik/ 2019-8-6262.pdf.

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to relatives (or other close adults) as substitute caretakers. Many local authorities use contract foster homes for short term or emergency placements and to replace or complement residential care.28 In 2003, the Social Service Act (Chap. 6, 8th para) and the Care of Young People Act (para 13) were amended to require the Social Services committee to consider the possibility of transferring custody to foster parents when a child has been in the same foster home for more than three years. Consequently, in 2003 there were 64 such transferals, 125 in 2005, with a further increase in 2011 to 213 and to 259 in 2013.29 Clearly, to a large extent, such a transfer of legal custody obviates the need for foster parents to resort to adoption as a means of securing family boundaries for the child concerned. The merits of this form of custody as a means of furthering the best interests of a child were examined by the Supreme Court (NJA 2014) and by the Supreme Administrative Court (HFD 2011 ref. 13) which found that best interests should be understood as a right to continue the de facto ongoing relations: social relations with the foster parents should be prioritised over the birth parents de jure rights. Residential Care It has been said that Sweden’s care system has—if legal definitions are applied— slowly developed toward re-institutionalisation and privatisation during the last 15 years, even if foster family care is still dominant.30 There has been a steady increase in the use of residential care, now often provided by for-profit agencies, from 3300 in 2000 to 4700 in 2010. In 2018, 30% of all those receiving care were placed in residential units.

12.2.2 Resulting Trends in Types of Adoption As in other developed western countries, the supply of adoptable children in Sweden decreased rapidly in the latter decades of the twentieth century. This was a result of more efficient and readily available methods of contraception, more liberal legislation on abortion, a better level of welfare benefits and more accepting attitudes in society, which together made it more probable that single mothers would, where possible, choose to parent their children. Since the late 1960s, as the domestic availability of voluntarily relinquished babies steadily faded, childless couples in Sweden turned to intercountry adoption but in recent years this too has significantly declined. Intercountry adoptions must now be processed by accredited adoption agencies that are restricted (in principle) to Hague compliant sending countries (which are increasingly only making available older children with health and/or behavioural issues). 28 Ibid. 29 Swedish

Government Official Reports 2015:71 621. Vinnerljung B, Sallnas M & Oscarsson L (forthcoming) Dygnsvird for barn och ungdom 1983–1995 [Care for children and youth 1983–1995]. 30 See,

12.2 Background

549

Essentially, the modern use of adoption in Sweden is becoming demand driven as the growing lists of prospective adopters far outnumber the supply of children in need available to be adopted. Nonetheless, national statistics show a relatively stable rate of adoptions over the past decade. In 2017 a total of 240 ICAs were completed by accredited agencies in addition to some 300 domestic adoptions.31

12.2.2.1

Third Party Adoptions

In circumstances where birth parent/s or other family members are unable to undertake permanent care responsibility, it is nevertheless unlikely that adoption by a third party will be an option for the child concerned. Long-term foster care is the preferred means of providing for a child in need of an alternative to care in his or her family of origin and this can now be secured by a transfer of custody to foster parents after three years. Domestic As annual adoption orders have fallen,32 the domestic proportion has risen: in 2000, of the 1035 children adopted only 85 were domestic; but by 2010, the numbers were, respectively, 945 and 203. However, domestic adoptions include a very high proportion of step-adoptions; the number of third party orders is relatively insignificant. By 2018, the number of annual domestic adoptions rarely exceeded 20, the majority being kinship or step parent. Child Care In Sweden, statutory intervention in family affairs on child care grounds occurs much less frequently than in the U.S. or U.K., with proportionately far fewer children compulsorily in the public child care system and fewer still leaving it to enter the adoption process. Although, as mentioned above, there is a legal procedure for a transfer of parental rights to foster parents, which could then lead to adoption, in practice this is used with decreasing frequency which is a clear indication of public policy.33 For example, in 2011, only 22 children and young people were adopted by their foster carers compared with 42 in 2000.34 When children do enter the care 31 See,

Myndigheten för familjerätt och föräldraskapsstöd/. 3600 in 1947 to 1000 in 1965, to 15–20 in the early 1990s. See, further, Yngvesson, B., Belonging in an Adopted World: Race, Identity, and Transnational Adoption, University of Chicago Press, 2010, at p. 26. 33 Affecting no more than 5% of children in care: see, further, Hjern, A., ‘Outcomes of Foster Care: Lessons from Sweden’, at: http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web& cd=1&ved=0CCwQFjAA&url=http%3A%2F%2Fwww.essop.org%2Findex.php%3Foption% 3Dcom_phocadownload%26view%3Dcategory%26id%3D11%3Aessop_2011%26download% 3D155%3Aessop_2011_hjern_foster_care_sweden.pdf%26Itemid%3D18&ei=5HVrU9OZEZSQ 7AbQ9YAQ&usg=AFQjCNGI-IGZWwTw2tIkn45LEeXzQ0hn-Q. 34 See, Socialstyrelsen, 2013. 32 From

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12 Sweden

system it is much more likely to be a consequence of consensual than coercive state intervention with all crucial rights and responsibilities remaining firmly vested in the birth parent/s. A policy of working towards family reunification takes precedence over compulsory adoption, even if this was considered desirable or was legally permissible, and this is facilitated by the practice of foster care placements within the extended family wherever possible.35 An estimated 15 per cent of the children placed in foster care are accommodated with relatives. Children with Special Needs Swedish children with special needs very rarely enter the adoption process. The policy has long been that as far as possible, children with disabilities are to be treated the same as others and given the chance to go on living in the parental home. The parents of children with disabilities, in need of occasional relief and the opportunity to devote time to any other children in the family, can be given such assistance either under the Support and Services for Persons with Certain Functional Impairments Act 1993 if the child qualifies under this law, or under the Social Services Act. On 1 September 2001, for example, almost 14,800 children and young people aged 0–22 years were receiving one or more services under the Support and Services Act. Children with learning disabilities constitute a discrete and separate group. As the vast majority now live at home with their parents, the support they and their parents receive—and the way in which it is structured—is crucial to the child’s development. Swedish policy recognizes that over and above the needs all children and young people have as they grow up, children with learning disabilities need special support to compensate for their functional impairment. Intercountry Sweden, relative to its size and more so than other western nations, has for some decades relied particularly heavily on intercountry adoption as a means for meeting the needs of its prospective adopters as the relatively generous welfare benefits encourage Swedish single mothers to retain their children resulting in fewer Swedish children being available for adoption. As has been explained:36 Since the mid-1970s, between 900 and 1800 children have come to Sweden every year for adoption. Today there are an estimated 45,000 Swedes from different parts of the world who have been adopted in Sweden. Statistics show that one out of every hundred new children in Sweden today is adopted from abroad.

35 For current provisions concerning the committal of children to custodial care in Sweden and information on what kinds of premises children committed to care may be kept at see CRC/C/65/Add. 3, pp. 152–154. 36 See, MIA, Adoption in Sweden: Policy and Procedures Concerning Intercountry Adoption, 2005. Moreover, “one out of every 50 children is an adoptee” (see, Centre for Adoption Policy at http:// www.adoptionpolicy.org/pdf/eu-sweden.pdf).

12.2 Background

551

This has been construed as “meaning that the country harbours the second highest number of transnational adoptees only after the U.S., and probably the highest proportion in the world in relation to its native born population”.37 In recent years, however, while the proportions of children adopted by the intercountry as opposed to the domestic route have remained much the same, the overall numbers have decreased. Approximately 81% of all Swedish adoptions are ICA,38 of which 90% of the children involved, arranged through an authorised agency, have come from either Colombia, India, China, Poland, Russia, South Africa, South Korea, Thailand, Vietnam and Belarus; with by far the most coming from South Korea. Transracial The transracial dimension to intercountry adoption has come to be represented by the Swedish experience. It has the largest population of transracial adoptees in Europe, mainly from Korea, India and Colombia. Between 1945–2001, of the 43,882 intercountry adoptions, 6503 were from India. Research indicates that this experience has not always been conducive to furthering the welfare of the children concerned. A major cohort study involving 11,320 transracial adoptees found that they were three to four times more likely to have serious health or social problems than their Swedish born siblings and yet Swedish international adopters generally pride themselves on a ‘colour blind’ approach to adoption.39 The researchers hypothesized that discrimination and prejudice against children and youth with non-Swedish appearance may have been a contributing factor.40

12.2.2.2

First Party Adoptions

The law governing adoption of a child by a person or persons related to him or her was the subject of a ministerial memorandum41 which considered the profound legal implications of an adoption order, together with the child’s need of contact with and access to both its biological parents. It suggested that an adoption against the wishes

37 See,

Keskinen, S., et al., Complying With Colonialism: Gender, Race and Ethnicity in the Nordic Region, Ashgate Publishing, 2012 at p. 120 (citing Selman, P., 2002). 38 See, further, at: https://www.europarl.europa.eu/RegData/etudes/BRIE/2016/583860/EPRS_B RI(2016)583860_EN.pdf. 39 See, Osanami Törngren, et al., ‘Transracial Families, Race and Whiteness in Sweden’, Genealogy 2: 54, (2018). 40 See, Hjern, A., Lindblad, F. and Vinnerljung B., ‘Suicide, psychiatric illness, and social maladjustment in intercountry adoptees in Sweden: A cohort study’, Lancet 2002, 360, pp. 443–8. 41 Parental Consent to Adoption, Etc (Föräldrars samtycke till adoption m.m. – Ds) 2001:53.

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12 Sweden

of a non-custodial parent was inadvisable: consent should be obtained from both parents, i.e. including the one without custodial responsibility. Step-Parents Adoption provides the only means in Swedish law whereby a step-parent can become a full holder of parental responsibilities jointly with a birth parent.42 Since 2003, a step-parent in a same sex relationship has been able to adopt jointly with their partner. In 2004, for example, there were 38 adoptions of step-children by registered partners (19 in 2003).43 The right to adopt as a step-parent is significant in the context of same sex relationships and is a right which, in practice, favours lesbian couples.44 In 2005, of the 172 domestic adoptions, 132 were by step-parents.45 Kinship Before 1999, kinship placements were uncommon in Sweden but in that year the law was amended to require social workers to first explore a child’s family network before taking any placement decision. Subsequently, there has been a steady increase in children fostered by relatives and research indicates that such children are likely to remain within the family after the age of 18 in care arrangements which closely approximate adoption. Annual statistics show a rise in such placements from 9% of all care placements in 2000 to 21% in 2010.

12.3 Overview of Principles, Policy and Law The civil law tradition in Sweden provides the setting for an adoption process that is deeply consensual in nature, judicially determined, results in a full adoption order and is very largely concerned with children who are born outside the jurisdiction.

42 See, Maarit Jantera-Jareborg, Anna Singer and Caroline Sorgjerd, ‘National Report: Sweden’, para 14, further at: http://ceflonline.net/wp-content/uploads/Sweden-Parental-Responsibilities.pdf. 43 See, Erauw, J., Vesna Tomljenovi´ c, V. and Paul Volken, P. (eds.), Liber Memorialis Petar Šarˇcevi´c, European Law Publishing, 2006, at p. 86. 44 See, further, Alden, A., Edlund, L., Hammarstedt, M. and Mueller-Smith, M., ‘Domestic Partnership for What? Evidence from Sweden’, 2013, at: http://lnu.se/polopoly_fs/1.90481!/LMDSWP 20137.pdf. 45 See, further, Singer, A. , ‘The Current Situation in Sweden’, presentation given at the conference Legal Framework for Children: Putting Children’s Interests First, held at the State Duma, Moscow, 19–20 October, 2006.

12.3 Overview of Principles, Policy and Law

553

12.3.1 Adoption Principles, Policy and Alternatives In Sweden, adoption without parental consent has never been an integral part of practice. The public child care system has steadfastly avoided the use of adoption even in respect of children for whom parental consent was available.46

12.3.1.1

Principles

In the absence of any adoption specific legislation, relevant legal principles—such as respect for the rights of birth parents and for the welfare interests of children—are more to be found in judicial caselaw and in the established practice of Social Welfare officials than in Swedish legislation. The Interests of the Child The government has stated that a key component of its policy in relation to children is that “the best interests of the child are to guide decision-making and all measures relating to children and young people.”47 However, in the absence of constitutional specificity or any legislative definition, it remains uncertain as to what interpretation and weighting—in relation to specific circumstances—is to be given to a child’s welfare interests.48 Openness Broadly speaking, the ‘closed’ model of adoption has prevailed in Sweden with a culture of secrecy continuing to shroud access rights to identifying information. This is reflected by practice in the adoption process; as this is very largely intercountry adoption, the dictates of geography allow few opportunities for practicing ‘openness’ in terms of arrangements for ongoing contact between an adopted child and members of their family of origin. Recent amendments in 2018 and 2019 to the Parental Code now permit adoptees greater freedom to discover information regarding their origins despite birth parents wishes to the contrary (see, further, below).

46 Richard Barth, a leading U.S. child welfare researcher, noted with some surprise that Swedish child welfare workers did not promote adoption of children in long-term foster care, even when birth parents suggested it. He regarded the absence of adoption in Swedish child welfare practice as a problem, considering every child’s primary need of a family for life. See, further, Barth, R., ‘Child welfare services in the United States and Sweden: different assumptions, laws and outcomes’, Scandinavian Journal of Social Welfare, 1992, Vol 1, pp. 36–42. 47 See, Sweden’s Fourth Periodic Report to the UN Committee on the Rights of the Child 2002–2007, ‘Child Policy and its Goals’ at para 54. 48 See, further, Schiratzki, J. , ‘The Elusive Best Interests of the Child and the Swedish Constitution’, in Children’s Constitutional Rights in Nordic Countries, (2019), at: https://brill.com/view/book/edc oll/9789004382817/BP000013.xml.

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12.3.1.2

12 Sweden

Policy

Government policy in relation to intercountry adoption was clearly articulated in an introductory statement to its Bill which presaged the present 2005 Act. It then explained that its aim was: … to secure both an ethical and transparent adoption operation, which proceeds in the best interests of the child and to formulate development cooperation which in the long term improves social and economic conditions in the countries of origin. The ultimate goal should be that intercountry adoption becomes unnecessary.

Sweden’s withdrawal, effective from January 4th 2003, from the European Convention on the Adoption of Children (which it had ratified on January 25, 1968) was a decision taken on policy grounds. At that time Sweden’s new adoption laws permitting adoption by homosexual couples in registered partnerships conflicted with a prohibition on such adoptions contained in Art 6(1) of the Convention. The decision to formally denounce the provision and disassociate itself from the Convention is a not untypical Swedish act of leadership in matters of social policy, duly emulated eventually by its European neighbours.

12.3.2 Adoption Alternatives: Long Term Fostering and Private Family Orders The concepts of custody and guardianship (rather than parental responsibility) together with associated rules governing matters such as residence and contact are well established in Swedish law.49 While there is no statutorily specified alternative to an adoption order, in practice long-term foster care—with custody vested in the foster parents—has been preferred.

12.3.3 Contemporary Adoption Related Legislation The fundamental regulations concerning adoption are to be found in Chap. 4 of the Parental Code, as amended. Schiratzki explains that:50 The legal position of a child’s birth parents has been weakened by the 2018 amendments on adoption. An adoption may now be granted without consent of a parent with custody if that parent is absent, has a severe physical or psychological medical condition that prevents consent or if there are otherwise special reasons.

49 See, the Children and Parents Code (1949: 381), particularly Chaps. 6, 9–15 and 21—as amended. 50 Schiratzki,

J. , ‘Children’s Right to Family Life and the Swedish Constitution’, op cit, at p. 364.

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555

She points out that what would constitute “special reasons” is not spelled out which leaves the amendments—presumably intended for restricted application to international adoptions—equally applicable to all adoptions, domestic as well as international. In the case of foreign adopted children, some international civil laws also apply. Sweden is singular in that it does not have any adoption specific legislation.

12.3.3.1

Adoption in International Situations Act 2018

Taking effect on 1 September 2018, this Act repealed the International Legal Relations concerning Adoption Act 1971. The latter is still applied to foreign adoption decisions issued before the 2018 Act entered into force.

12.3.3.2

The Care of Young Persons (Special Provisions) Act

This Act replaced the 1990 Act (see, below). It provides for the circumstances in which children and young people may be taken into public care following a court decision. It states that the best interest of the young person shall be the deciding factor in any decisions taken under the Act, that the young person’s point of view shall be clarified and that account shall be taken of their wishes with due consideration given to his or her age and maturity. Further, when a child has been placed at the same family home for three years, the social welfare committee shall determine—in accordance with the best interests test—whether there is reason to apply for a transfer of custody to the foster parents.

12.3.3.3

The Intercountry Adoption Affairs Act 2005

This legislation enabled the National Board for Intercountry Adoptions (NIA) to be reconstituted as the Swedish Intercountry Adoptions Authority (MIA) from 1 January 2005 and for the latter to become the Swedish central authority for the purposes of The Hague Convention.

12.3.3.4

The Social Services Act 2001

Under Chap. 6 of the 2001 Act, children may not, without the consent of the social welfare committee, be received for permanent care and upbringing in a private home that is not that of one of their parents or of any other person with custody rights.51 The social welfare committee is required to satisfy itself that certain conditions have

51 As

incorporated in the Social Services Act 2001, s 6.

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been met where the child concerned is resident abroad and is being received for the purposes of adoption.52 Sections 12–16 of the same Chapter, govern intercountry adoptions. This Act was amended in 2005 to provide that a person or persons intending to adopt a child from another country must have the consent of the local social welfare committee in their home municipality before the child leaves its country of origin. Prior to adoption, the adoption applicants must also have undergone parenting training arranged by the municipality.

12.3.3.5

The Intercountry Adoption Intermediation Act 1997

This legislation applies where a child from overseas is to be adopted by a person or persons domiciled in Sweden. According to the Act, The Hague Convention has the standing of law in Sweden. Adoptions in accordance with the Convention are automatically valid in Sweden. In all other cases, adoption applications are determined by a Swedish court in accordance with the Children, Parents and Guardians Code. Other legislation was simultaneously introduced: the International Adoption Agencies Act 1997; and the International Adoption Assistance Act 1997 (now repealed). The 1997 legislation requires intercountry adoptions to be carried out through an MIA authorized non-profit organization (s 3). In individual cases private adoptions can be allowed if the MIA has given permission before the child leaves its home country (s 4). Breach of this regulation can result in fines (s 15).

12.3.3.6

The Care of Young Persons Act 1980

This legislation governs the circumstances when children and youths may be taken into care without consent from their parents or from the children themselves, when aged 15 or more. Generally, Swedish child welfare has its main emphasis on social support and service, rather than on child protection. Swedish child welfare legislation makes no strict distinction between child protection and youth justice: whether behaviour stems from deprivation or depravation it is viewed as giving rise to welfare considerations rather than to criminal proceedings. Local authorities mainly work with social support to and in partnership with families, regardless of the age of the children or the reason for intervention.

12.3.3.7

International Legal Relations Concerning Adoption Act 1971

This legislation clarified the circumstances in which Swedish courts have jurisdiction in relation to an adoption where the child or one of the parties is a foreign national.

52 Ibid.,

s 12, as amended by the Intercountry Adoption Affairs Act 2005.

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557

Applications concerning adoption are considered by a Swedish court if the applicant or applicants have Swedish citizenship or are domiciled in Sweden (s 1). An application will be considered in accordance with Swedish law (s 2). An adoption order made in a foreign state shall apply in Sweden if the applicants were citizens of, or were domiciled in, the foreign state when the order was made. An adoption decision is automatically valid in Sweden if it relates to a foreign adopted child, and the adopter was a citizen of or resident in that foreign state when the decision on adoption was taken.

12.3.3.8

The Children and Parents Code 1949

The Parental Code, introduced in 1949 and since considerably amended, states in Chap. 6, section 1 that children should be treated with respect for their individuality. They may not be subjected to physical punishment or other degrading treatment. By legally giving children these ‘rights’, the law also defines the responsibilities of parents (or other caretakers). Although the state ascribes to itself the right to intervene if basic needs are not respected of fulfilled, this Code differs from comparable common law legislation in that its objective is educational rather than coercive. The Code continues, as amended, to provide the foundations for the law in Sweden as it relates to children. Chapter 4 of the Code This Chapter, as amended in 2018 and 2019, governs domestic adoption in general. It requires adoption applications to be decided by a court. Permission to adopt will then be given only when it is considered to be in the best interest of the child and the adoptive parents have brought the child up, or intend to bring the child up, or if the personal relationship between the child and the adoptive parents give rise to special reasons for allowing adoption.53 The Code also contains the following provisions in relation to adoption: • a spouse may adopt the other spouse’s child54 ; • a person more than 12 years of age cannot be adopted without his or her consent;55 • the opinion of a child under 12 years shall be taken into consideration when judging whether their adoption is in their best interests; of the child;56 • a person under 18 years cannot be adopted without the consent of their parents;57 • non-consent by a parent without custody rights must not prevent an adoption that is considered to be in the best interest of a child;58 53 The

Parental Code, Chap. 4, s 6. Chap. 4, s 3. 55 Ibid., Chap. 4, s 5. 56 Ibid., Chap. 4, s 6 and s 10. 57 Ibid., Chap. 4, s 5(a). 58 Ibid., Chap. 4, s 10. Also, see, Söderbäck v. Sweden, (Judgment 28 October 1998, 113/1997/897/1109). 54 Ibid.,

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• adoption cannot be granted if either side has been given or offered financial compensation;59 and • in any investigation of the adoptive parents’ suitability, information should also be given about the child and if possible about the child’s view on adoption.60 The principal change, introduced by recent amendment, is in relation to the withholding of consent by an abusing or neglectful birth parent (see, further, below)

12.3.4 International Law Sweden has ratified both the U.N. Convention on the Rights of the Child (1990) and the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (1997), but has withdrawn from the European Convention on the Adoption of Children. The Charter of the European Union, the Regulations of the European Union and the case law of ECJ, the ECtHR and the UN CRC also have a direct bearing on Swedish law and practice (see, further, Chap. 3).

12.4 Regulating the Adoption Process Since 1998 the municipalities’ social welfare boards have had special responsibility for adopted children and young people. The courts also have a key role to play. In practice, as the adoption process largely concerns intercountry adoptions, the lead regulatory body is the Family Law and Parental Support Authority (MFoF).

12.4.1 Length and Breadth of the Process The fact that the process accommodates pre-placement counselling, requires consents to be sought from all parties including the child concerned (in many cases) and that of the relevant Social Welfare Committee, while also allowing for post-adoption support services, results in Swedish adoptions being rather more complex and thus lengthier than those of some other countries. The process can take two to three years from when the Swedish authorities approve the application of the adoptive parents until the parents receive the child.

59 Ibid., 60 Ibid.,

Chap. 4, s 6. Chap. 4, s 10.

12.4 Regulating the Adoption Process

559

12.4.2 Role of Adoption Agencies and Other Administrative Agencies Adoption agencies are regulated by the Family Law and Parental Support Authority (MFoF) according to criteria that includes: a proven capacity to act as an intermediary; the need for intercountry adoption to be an activity conducted independently of any other work done by the association; and the requirement that the association should accept all prospective adoptive parents who have been deemed suitable by the Swedish social services. Ocassionally, some private adoptions bypass adoption agencies. The authorization of associations involved in intercountry adoptions can be withdrawn.

12.4.2.1

Adoption Agencies

Sweden currently has five registered agencies specializing in intercountry adoption.61 The oldest of these is the Adoption Centre Association (Adoptionscentrum), established in 1969, which in 1996 arranged approximately 600 (or 72%) of all intercountry adoptions. The involvement of for-profit adoption agencies is prohibited in relation to the adoption of Swedish children. Swedish citizens, approved as adopters in Sweden and pursuing an intercountry adoption cannot be prevented from using the services of foreign commercial agencies; but the usual reasonable expenses caveat will be rigorously policed. The Social Welfare Committee Chapter 6, s 12, of the Social Services Act 2001 requires applicants to secure the consent of their local Social Welfare Committee to receive a child for adoption before applying to an organization for a child. That consent will be conditional upon the Committee receiving a satisfactory report from the assessing social worker (see, further, below). Only after consent has been received can the applicants apply to one of the adoption agencies. When a certain child has been proposed for adoption the applicants must then apply for permission from the Social Welfare Committee to continue with the adoption procedure. In circumstances where a ‘private’ international adoption has been arranged without involving an adoption agency then—before the child leaves its country of origin—the Family Law and Parental Support Authority (MFoF)62 has to assess whether the adoption is appropriate and legally valid. This requires it to refer to the Social Welfare Committee so that the Committee may rule on whether the prospective adoptive parent or parents are eligible and suitable. 61 Adoptionscentrum, Adoptionsforeigningen La Casa (ALC), Barnen Framfor Allt- Adoptioner (BFA-A), Barnens Vanner- Internationell Adoptionsforening(BV) and Familjeforeningen for Internationell Adoption (FFIA). 62 See, further, at: https://www.mfof.se.

560

12 Sweden

12.4.3 Role of the Determining Body Under Chap. 4, s 9, of the Parental Code, the court for the district in which the prospective adopters reside has jurisdiction to determine their adoption application. Where this is not possible or appropriate then the matter is determined by Stockholm City Court.

12.4.3.1

The Family Law and Parental Support Authority (MFoF)63

This government body, based in Stockholm, replaced the MIA in 2016 and like its predecessor it must approve any adoption or a decision in favor of an adoption by a Swedish court. It is responsible for all intercountry adoptions in Sweden and acts as the Swedish Central Authority for the purposes of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption. The primary responsibilities of this agency are to: authorize and supervise the non-government organizations; consider whether the adoption procedure is acceptable or not in certain individual cases such as family-related adoptions; observe the international development and research; observe the development of costs of adoption; and negotiate with authorities and organizations in other countries. If an adoption has been completed in the child’s country of origin, the adoptive parents must, nevertheless, apply to the MFoF to have the adoption order declared valid in Sweden. An adoption abroad is invalid if it was carried out for a purpose other than to create or strengthen a parent-child relationship.

12.4.4 The Registrar General The office of Registrar General was first established in 1751 and all births and maternal deaths were required to be filed with it. Currently the Tax Agency is the national agency which registers all information relating to births, deaths, marriages, legal guardianship and adoption.64

63 See,

further, at: https://www.mfof.se/sidhuvudets-innehallssidor/choose-language/english.html.

64 See, further, at: http://www.skatteverket.se/download/18.71004e4c133e23bf6db8000112620/134

9175463712/SKV+703-4B03.pdf.

12.5 Threshold for Entering the Adoption Process …

561

12.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria Adoption in Sweden has been a consensual process. This imposed certain entry requirements on the parties concerned in addition to the usual eligibility and suitability criteria.

12.5.1 The Child Under Chap. 4, s 5, of the Parental Code the consent of a child aged 12 years or more is a legal requirement for their adoption. However, consent is not required in circumstances where the child is either aged 16 years or less and it would be to his or her detriment to be asked, or the child is permanently prevented from consenting due to mental health or other such serious difficulties. Under s 5(a) a person aged less than 18 may not be adopted without the consent of their parents. Under s 6, in relation to adoption, there is a requirement to take a child’s opinions into account in accordance with their age and maturity. Unlike many other modern western jurisdictions, the adoption process in Sweden is available to: young persons without an upper age limit provided that it confirms a parent/child relationship and can, therefore, be used in respect of adults with a learning disability; and also to children whose placement has not necessarily involved an accredited adoption agency. A child living in a country outside the EU who has been adopted or is going to be adopted in Sweden may need a residence permit.

12.5.2 The Birth Parent/s The consent of birth parents is a prerequisite for the adoption of their child (i.e. less than 18 years of age) unless grounds exist for it to be dispensed with. Under Chap. 4, s 5(a) of the Parental Code, a mother cannot give a valid consent to the adoption of her child until she has sufficiently recovered from her confinement. This provision also states that consent is not required where the birth parent is suffering from serious mental health problems, or has had no share in the custody of the child or if their whereabouts are unknown.

12.5.2.1

Failed Parental Rehabilitation

Parental rights, and the accompanying necessity to obtain parental consent for any decision affecting the exercise of those rights, remain of central importance in the law relating to children in this jurisdiction. Consequently, wherever possible, resources

562

12 Sweden

are invested in family support services and a policy of long-term foster care or residential care in small group homes for older children prevails. A professional focus on returning a child to their parents, is the established public service response to problems of serious child abuse and neglect. The law explicitly emphasizes the importance of maintaining contact between children and their birth parents and relatives. For example, the Administrative Supreme Court has ruled that strong reasons were required for a total prohibition on contact between a child in foster care and their birth parents.65 The courts are very reluctant to terminate such contact as this is seen as “an infringement on the child’s right to close and good contact with both parents”.66 Nonetheless, the ECtHR has ruled that the Swedish authorities are entitled to severely restrict a child’s right— under the ECHR, Article 8,—to contact with his/her family of origin without this constituting a breach to respect for private and family life.67 There is no time limit for the rehabilitation of parents. By far the majority of birth parents retain legal custody of their children throughout a placement in foster care. Children tend to be older than their U.K. counterparts when they enter the child care system, as they only do so after all family support services have been exhausted, and 35–40% remain in it for three years or more. As has been observed “in Sweden the underlying assumption of the law is that ‘every parent can be rehabilitated”.68

12.5.3 The Adopters: Eligibility and Suitability Criteria The criteria to be satisfied by prospective adopters in Sweden are not dissimilar to that required of their counterparts in other modern western nations. It is conducted by the Child Welfare Authorities and concludes with a ‘Home Study Report’ which addresses the following:69 • Previous conditions: their childhood and adolescence, education, occupations and relations to parents, brothers and sisters. • Present living conditions: home environment, school condition, work, income and health. • Previous and present status of health. • Personality: distinctive characteristics and interests, membership of clubs and associations, leisure, friends and acquaintances. 65 See,

hfd 2017 ref. 40. Maarit Jantera-Jareborg, Anna singer and Caroline Sorgjerd, ‘National Report: Sweden’, para 47, further at: http://ceflonline.net/wp-content/uploads/Sweden-Parental-Responsibilities.pdf 67 S.J.P. and E.S. v. Sweden, Application No. 8610/11, (2018). 68 Barth, R. , ‘Child welfare services in United States and Sweden: different assumptions, laws and outcomes’, Scandinavian Journal of Social Welfare, 1, pp. 36–42 at p. 39. 69 See, further, at: https://www.swedenabroad.se/en/about-sweden-non-swedish-citizens/southkorea/going-to-sweden/miscellaneous-links-to-more-information-about-sweden/adoptions-to-swe den/. 66 See,

12.5 Threshold for Entering the Adoption Process …

563

• Religious affiliation and/or attitudes. • Marriage and marital relationships: the view they take of their own and any previous relationships. Attitude of the people around them to their plans for adoption. Intention or otherwise to have more children. Any other children in the family. • Motives for adoption. • Knowledge and experience of children, ideals of upbringing. • Expectations and preparations for parenthood. • References from at least two persons who know the applicants well. • Assessment of the resources of the applicants as adoptive parents and their ability to take care of children of a certain age and with certain needs. 12.5.3.1

Third Party Adopters

An eligible applicant, of either gender and whether single or married, must be aged 25 years or older70 and should be less than 42 years of age at the time of application (the age limit can be raised in special circumstances and lowered to 18 if the adoptee is a relative) though there is no legal maximum age. Spouses must adopt jointly.71 However, one spouse may apply alone to adopt a child when the other spouse’s whereabouts are unknown or is suffering from a serious mental illness. One spouse may also, with the consent of the other spouse, adopt that spouse’s child as his or her own child.72 Same sex couples can adopt under the same conditions as heterosexual couples as long as they are married or have registered their partnership. Cohabiting couples, following recent amendments to the Parental Code, may now adopt jointly. Single parent adoption is possible and has increased considerably in recent years. The prospective adopters must be legally resident in Sweden. The suitability of all applicants is assessed by the municipal social services department (or ‘Social Welfare Committee’) which completes the above mentioned home study report. The investigating officer must be satisfied as to the applicant/s knowledge of children and of the latter’s needs at different developmental stages. A full report, assessing the prospective adopters in accordance with the above criteria, is compiled by the officer and in addition the applicants will be required to attend a parental preparation course. The consent of the Social Welfare Committee is essential for the adoption process to formally begin.73 If approved, the subject/s must make an adoption application to their local district court within the ensuing two years. If rejected, the subject/s can appeal to an administrative court.

70 The

Parental Code, Chap. 4, s 1. Chap. 4, s 3–4. 72 Ibid., Chap. 4, s 3. 73 Social Services Act 2001, s 25. 71 Ibid.,

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12 Sweden

12.5.3.2

First Party Adopters

If the adoption involves a related child, e.g. a niece or a nephew, or the child of his or her spouse or if special circumstances exist,74 then the age limit for adopters is lowered to 18–25.

12.5.3.3

Intercountry Adopters

While the above eligibility criteria apply, particular importance is attached to satisfying suitability criteria as is evident from the following excerpt from Chap. 6 of the Social Services Act: A child domiciled abroad, may not be received for purposes of adoption, by a person who is not the child’s parent or guardian, without the consent of the Social Welfare Committee. Consent must be obtained before the child leaves the country of domicile. Consent may only be given if the applicant is suitable to adopt a child. The assessment of suitability must pay particular attention to the applicant’s knowledge and insight concerning adopted children and their needs and the implications of the planned adoption, as well as to the applicant’s age, state of health, personal qualities and social network. Moreover, prior to adoption the applicant must have taken part in a parenting course commissioned by the municipality. If the applicant has previously adopted a child from abroad, consent may be given even if he or she has not taken part in a parenting course. The consent will lapse if the child has not been received into the home within two years of consent being given.

12.5.3.4

Single and Same Sex Adopters

Applicant adopters may be single but if in a relationship then both parties must apply jointly. Despite having one of the highest rates of families headed by unmarried couples (29% in 2010), and regardless of whether they are heterosexual or same sex, in Sweden any such couple wishing to adopt must be married or in a registered partnership.

12.6 Pre-placement Counselling The adoption of Swedish children, whether following voluntary relinquishment or judicial removal of parental rights, is such a rare phenomenon that pre-placement counselling is in practice a service for prospective adopters rather than the birth parent/s. Parental training before adoption is provided by authorised agencies and evidence of having completed such a training course is an eligibility requirement for 74 Ibid.,

Chap. 4, s 1.

12.6 Pre-placement Counselling

565

prospective intercountry adopters. The quality of parental training and opportunities for participation varies countrywide, as does the content of the training and its cost.

12.7 Placement Rights and Responsibilities In practice, , the majority of Swedish adoptions are in respect of children from overseas. As soon as such a child arrives in Sweden the local social welfare authority must be notified.

12.7.1 Authority to Place Chapter 6 of the Social Services Act requires the consent of the local social welfare committee as a prerequisite for the placement of any child in a home that is not that of the child’s parent/s or the home of a person with custody rights in respect of that child.75

12.7.1.1

Placement by Birth Parent

The placement decision cannot be taken on a private basis by the birth parent/s whether or not the proposed placement is with a relative. The placing of a child for adoption by a third party is the sole responsibility of the local child welfare authority.

12.7.1.2

Consent

The Swedish adoption process, being traditionally almost exclusively consensual, requires the consent of the birth parents and that of the local social welfare committee before an adoption placement can be made.

12.7.1.3

Placement by Accredited Body

An accredited body, authorised by a social welfare committee, is the appropriate agency to place a child for the purposes of adoption. This must be with approved adopters and following parental consent which cannot be given within four weeks of the child’s birth.76 Private adoptions may occasionally occur without the involvement of an accredited body. 75 Social

Services Act 2001, Chap. 6, s 6. Act 1974, s 15(1).

76 Adoption

566

12 Sweden

12.7.2 Placement Supervision From the arrival in the jurisdiction of a child for adoption until the completion of the adoption process, the placement is required to be supervised by the local social welfare authority.

12.8 The Hearing All matters concerning adoption are heard by an ordinary court of law, which will pass judgment after considering the report compiled by the officer acting on behalf of the Social Welfare Committee, seeking further advice if necessary from the Committee or from the Swedish Migration Board if the child comes from outside the Nordic region. In certain cases when an adoption has taken place abroad, it is valid automatically in Sweden. Where the subject of an intercountry adoption has not been adopted in their country of origin then the MFoF must approve the adoption or, alternatively, the prospective adopters will have to apply by petitioning a district court.

12.8.1 Where Consent Is Available Adoption law in Sweden gives particular attention to ensuring that all relevant consents are acquired. The consent of birth parent/s (or legal guardian77 ) of a child who has not reached the age of 18 years must be obtained unless: this is unavailable due to death, absence or severe mental impairment; or can be dispensed with on grounds of parental fault. In addition, the consent of the child concerned if aged 12 years or older, must be available unless the statutory grounds for dispensing with the need for it can be satisfied.

12.8.2 Where Consent Is Not Available Non-consensual adoptions, following a judicial removal of parental rights due to conviction for abuse or neglect of the child concerned, while always possible, have been extremely rare in Sweden. However, due to the 2018 amendments, described by Schiaratzki “as a paradigm shift in Swedish law”—because they have the effect of “introducing forced adoptions”—it may be that they will in future become more common as law and policy in Sweden would seem to be in the process of being adjusted, to facilitate judicial dispensing with the need for birth parent consent on 77 The

Children, Parents and Guardians Code, Chap. 4, s 5a.

12.8 The Hearing

567

grounds of child abuse or neglect, in keeping with the approach long established in the U.S and the UK.78 A child or young person, under the age of 16 years, may be adopted notwithstanding an absence of consent if to seek it would be to their detriment, or if they are mentally ill.79 Under Chap. 4, s 6 of the Parental Code, in circumstances where the consent of the child is not required, the court must nevertheless take into account his or her wishes having due regard to their age and maturity. Similarly, under Chap. 4, s 10, in circumstances where the consent of the birth parent/s is not required, the court must nevertheless hear their views whenever possible.

12.9 Thresholds for Exiting the Adoption Process An adoption order cannot be made until the child concerned is at least six weeks old and at least three months have passed since the application was lodged. The only substantive criterion for making an adoption order, in circumstances where all eligibility and suitability requirements have been satisfied, is that the order if made would be in the best interests of the child concerned.

12.9.1 The Welfare Interests of the Child Under Chap. 4, s 6 of the Parental Code, the court is required to satisfy itself that “the adoption may suitably take place” and may not grant the application unless it finds that the proposed adoption is for the benefit of the child. The child’s welfare interests—under Chap. 6, s 4(a)—are generally interpreted in terms of a right to be protected from harm and to be able to maintain a close relationship with both birth parents. The court must also be satisfied that no financial or other form of consideration has been given or promised in relation to the adoption.80

12.9.1.1

The Paramountcy Principle

There is no suggestion in Chap. 4, s 6 of the Parental Code that the welfare interests of the child are to be accorded a paramount legal weighting when determining an adoption application.

78 See, further, Schiratzki, J. , ‘Children’s Right to Family Life and the Swedish Constitution’, op cit, at p. 364. 79 Ibid., s 5. 80 In Sweden, the “best interests” principle was part of the Parental Code even before the Convention on the Rights of the Child.

568

12.9.1.2

12 Sweden

Voice of the Child

As has been pointed out “the child’s right to be heard is a fundamental principle in Swedish family law”.81 As stated above, the consent of a child aged 12 years or older must be obtained, unless it may be dispensed with under the very limited statutory grounds. As regards a younger child, the court must seek and take into account his or her wishes, having due regard for their age and maturity. The Supreme Court, in NJA 2017, determined that the strongly expressed wishes of a 13 year old girl were decisive when awarding sole custody to the father; despite reservations regarding his suitability.82

12.9.2 Representing the Child’s Welfare Interests Under the Social Services Act 2001 and the Care of Young Persons (Special Provisions) Act 2012, children who have reached the age of 15 have ‘procedural capacity’ and may plead their own case in a court of law or in matters brought for adjudication. Children under 15 should be heard if in the opinion of the court they are unlikely to suffer harm as a result and younger children are sometimes also given the same opportunity. The rights of children involved in adoption proceedings were strengthened by provisions introduced in the Intercountry Adoption Affairs Act 2005.

12.10 The Outcome of the Adoption Process The only possible outcome is the granting or refusal of the adoption order sought. An adoption incorporating conditions such as contact rights between the adopted child and members of their birth family is possible in Swedish law but is never used. Chap. 6, s 15 of the Parental Code states that the child has the right to contact with persons other than a parent. This could be used after adoption, and has been considered in a few cases but that step has never been taken. Under Chap 4, s 11 of the Parental Code, a right of appeal is available to an applicant or other party, in respect of any decision taken by the court in relation to an adoption application.

81 See,

Maarit Jantera-Jareborg, Anna singer and Caroline Sorgjerd, ‘National Report: Sweden’, para 9, at: http://ceflonline.net/wp-content/uploads/Sweden-Parental-Responsibilities.pdf. 82 At para 62.

12.11 The Effect of an Adoption Order

569

12.11 The Effect of an Adoption Order Any adoption carried out in a foreign jurisdiction, in accordance with the Hague Convention, is valid in Sweden as are all other domestic adoptions conducted as outlined above.

12.11.1 The Child Under Chap. 4, s 8 of the Parental Code, the effect of adoption is to sever all legal bonds between the child and their birth parents and place the child in a legal relationship with the adopters as though born to them. The same paragraph provides an exception to this rule where otherwise stated or where it follows from the nature of the situation. This, for example, allows adopted siblings to marry since the impediments against marriage are based on genetic kinship. However, the government was clear that this principle should not extend to permitting marriage between adoptee and their adopter:83 The possibility of an adoptive parent and adoptive child entering into marriage seems almost offensive. Even if there is no biological bond, social and ethical reasons strongly suggest that marriage between an adoptive child and adoptive parent should not be allowed.

The adopted child inherits from, and is inherited by, his or her adoptive parents and their relations. Swedish regulations on custody and maintenance also apply. The child acquires the family name of the adopters but can also be given permission to retain their former family name in combination with the new name if so desired. In fact and in law children twelve years or older may not have their names changed without their consent. A child who is aged under 12 and who has been adopted by a Swedish citizen automatically receives Swedish citizenship upon adoption if: • the child has been adopted as the result of a decision taken in Sweden or in another Nordic Council country; • the child has been adopted as the result of a decision taken abroad and approved in Sweden by the National Board for Intercountry Adoptions (MIA); and • the adoption is valid under Swedish law. The adoption must have been officially decided or approved after 30 June 1992. A child aged 12 or more at the time of their adoption may acquire Swedish citizenship by application. Similar rules apply in respect of residency status. Children under the age of 12 become Swedish citizens automatically when adopted and therefore do not need to apply for a residence permit while older adopted children can acquire residency 83 See,

the Government Bill (2003/04: 131, at p. 73).

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12 Sweden

status on application. In 2000, for example, residence permits were granted to almost 900 adopted children. An adopted ‘child’ may marry or enter into a registered partnership with a birth ‘child’ or with another adopted sibling of their parents but, since 2005, is prohibited from marrying their adoptive parent. A foreign adopted child under the age of 18 may be granted a Swedish residence permit without the requirement of having lived with the adoptive parent, if the latter was resident in Sweden at the time of the adoption.

12.11.2 The Birth Parent/s The effect of an adoption order is to absolutely and permanently terminate all legal rights and duties of the birth parent/s in respect of the subject of that order. An interesting characteristic of the Swedish adoption process is that—unlike many common law regulatory systems—there is no possibility of an adoption order making provision for for birth parents to acquire or retain residual rights, such as the right to direct or indirect contact, in respect of the adoptee.

12.11.3 The Adopters An adoption order vests in the adopter/s all the rights and responsibilities in respect of the child concerned that previously belonged to the birth parent/s. Under Swedish law, a parent is now prohibited from marrying their adopted child.84

12.11.4 Dissolution of an Adoption Order A Swedish adoption order cannot be annulled, revoked, cancelled or otherwise qualified.

12.12 Post-adoption Support Services Since January 1st 1998 the municipalities’ social welfare committees have, according to Chap. 5 paragraph 1 of the Social Services Act, an explicit responsibility for providing any help that may be needed after an adoption. This responsibility does not include service provision in respect of adult adoptees. 84 As a consequence of provisions inserted into the Marriage Code (Chap. 2, s 3, third paragraph) by the Intercountry Adoption Affairs Act 2005.

12.12 Post-adoption Support Services

571

12.12.1 Adoption Support Services Post-adoption support is a legislatively recognised right in Swedish law: State financial support is available to all adopters. Since January 1st 1989 a state grant (forsakringskassan) has been payable to the adopters of children from abroad. The grant amounts at present to SEK 40,000 per adopted child, and is paid out on completion of the adoption process. As this is payable in circumstances where the child is less than ten years of age when placed with the adoptive parents, in practice it is applicable to most adoptions.

12.13 Information Disclosure, Tracing and Re-unification Services Remarkably, in Sweden there is no formal procedure for responding to requests for information, tracing and re-unification involving a system of designated agencies regulated by government bodies. There is no law specifically assigning rights or responsibilities in respect of these matters.

12.13.1 Information Disclosure An adoptee has long had a right to information regarding the identity of his or her birth parents, whether or not the latter wish to retain their annonymity.85 On reaching the age of 18 an adoptee has an absolute rights to access their birth records. The relevant records are kept and maintained at the central social registry. These rights have recently been reinforced, as Schiratzki points out: “the 2018 and 2019 amendments of the Swedish Parental Code regarding adoption and establishment of paternity aim at strengthening the child’s right to know his or her genetic origins” in line with UN CRC, Article 7.86

12.13.2 Adoption Registers Sweden maintains certain registers that include adoptions, such as the Population Register, but it does not have a designated national adoption data source.

85 Laws

of Confidentiality. J., ‘Children’s Rights to Family Life and the Swedish Constitution’, op cit, at p. 371.

86 Schiratzki,

572

12.13.2.1

12 Sweden

The Register of Intercountry Adoptions

The Swedish Intercountry Adoptions Authority, being the Central Authority in Sweden, maintains this register.

12.13.3 Conditional Access Social services have always been willing to trace birth parents and mediate contacts with them and the adult adoptee, or provide information about an adoptee and their birth parent/s, or arrange for exchanges of information between them, when one or other has not wished to make personal contact. Where information on an adopted child’s birth parents could be found, the associations mediating the adoption were obliged to give it to the adopted child, upon request.

12.13.4 Tracing and Re-unification Services Again, Swedish law does not provide any explicit rights or services in this context. Nonetheless, when both a child and their biological parents wish to meet, the agencies involved in the adoption have, as a matter of practice, always been willing to facilitate such arrangements.

12.14 Conclusion The long established tradition of recourse to intercountry adoption is driven, as elsewhere in western developed nations, by the rapidly worsening ratio of voluntarily relinquished babies to prospective adopters, for all the usual well documented reasons, and is influenced also by a resolute government policy to invest resources in supporting and restoring failing family units. Not until rehabilitation of the child/parent relationship has proved impossible will alternative arrangements, usually long-term foster care, be introduced. This policy leads to few children being admitted to the public child care system. Those that are admitted mostly come with parental consent, are usually considerably older than their U.K. counterparts and thus enter with attachments and opinions that would make third party adoption problematic. In practice, although non-consensual adoption from care is legally possible, children are simply not placed for adoption either with or without parental consent. The fact that proportionately fewer children are compulsorily admitted to the public child care system in Sweden than, for example, in the U.K. and the U.S., and none leave it by way of state sponsored adoption, is arguably due in large part to the secure bond that exists between the Swedish state and its citizens. In a child care context, this

12.14 Conclusion

573

was illustrated by the widespread acceptance of the pioneering government policy to prohibit parental chastisement of children in 1979, resulting in an immediate and sustained fall in rates of children admitted to care for reasons of child abuse. There are some particularly notable features of the Swedish adoption process. Its fundamentally consensual nature, for example, is illustrated by the fact that the consent of a person more than 12 years of age is a pre-requisite for their adoption and, if they are aged less than 18, then parental consent is also necessary. The fact that there is no upper age limit for such a person to be adopted in Sweden is unusual and indicates a fundamental orientation of the process towards welfare considerations. It is a process that has long embraced principles of ‘openness’ and, unlike many of its common law counterparts, has for some time also provided pre and post adoption support services. Again, unlike most other jurisdictions, Swedish law explicitly states that adoption cannot be granted if either side has been given or offered financial compensation.

Chapter 13

France

13.1 Introduction The Republic of France, an economically thriving developed nation with a population of some 67 million people, has a legal system based on the civil law and governed by a constitution.1 The principles underpinning that system are drawn from the Declaration of the Rights of Man and of the Citizen2 while its basic rules are to be found in the Napoleonic Code.3 The law is laid down in statute form to be interpreted and applied by the judiciary. The strong democratic and egalitarian traditions of this nation, developed through its revolutionary experiences of the late eighteenth century, have done much to shape contemporary family law and the role of adoption within it. This chapter outlines the adoption process in France in accordance with the template of legal functions (see, Chap. 3). It is primarily concerned to identify and examine those distinctive features of this archetypal civil law jurisdiction that distinguish the legal aspects of the process from its common law counterpart. As with the other jurisdictions studied, the chapter begins by considering the social and legal context of adoption, the emerging trends in types of adoption and their more prominent characteristics. It notes current government policy and identifies the relevant legislation before examining in some detail the regulatory framework, the main agencies and processes and the role of the parties as they relate to the adoption process. The chapter concludes with a summary and assessment of the more distinctive and significant characteristics of the contemporary adoption process in France.

1 See,

the Constitution of October 4th 1958 and also the preamble of the Constitution of October 27th 1946. 2 August 26th 1789. 3 Formulated by Napoleon to give effect to the principles of the French Revolution, the Code was promulgated in 1804. © Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_13

575

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13 France

13.2 Background The social construct of ‘family’ as defined in French law is quite singular. For legal purposes the rules and proceedings governing family matters are to be found in the Civil Code, as significantly amended, but the Code itself is a product of the Napoleonic era and is conceptually rooted in the revolutionary ideology that gripped France at the turn of the eighteenth century. Central to the meaning then attached to ‘family’ is the concept of ‘filiation’.4 This continues to be of fundamental significance in family law. The development of adoption law and practice in France has to be viewed in the overall context of ‘filiation’. While the debate regarding the ideological interpretation given to the role of the family in an egalitarian society, and the symbolism associated with status, is too complex to be explored at present it is necessary to note the importance attached to matters of social and cultural identity in the Civil Code. In a break from the feudally structured pre-revolutionary France, where the integrity of family lineage and the rank ordering of families was paramount, the new concept of ‘filiation’ was to be socially rather than genetically determined. The law gave effect to this by ensuring the existence of opportunities for status relationships to be ascribed, instead of being automatically acquired, and for putting in place rules governing the conferring of status. So, French citizenship is not simply acquired by being born in France nor is French ethnicity seen as synonymous with its borders (it accommodates the Quebecois, for example, but not necessarily all resident Algerians or others with their own distinct ethnic orientation). Again, rights of inheritance are not immutable, they can be changed by parental action (adoption etc.)5 and even filial attachment with the ancillary right to claim the family name does not automatically come as a birthright (mothers can choose not to acknowledge their children). Family law and the law of adoption have to be seen in this context: matters of individual and cultural identity, the role of the family unit in society and the acquisition of status based relationships, are more socially determined than genetically prescribed. It must be borne in mind that there are two types of adoption in France: a plenary adoption order (adoption plénière) results in the adopters and the adopted child assuming the same legal relationship as if the child had been born to the adopter/s; and a simple adoption order which results in the adopted child keeping some legal bonds with his original family while being given a legal relationship with his new family. This duality corresponds closely to the similar distinction made in Japanese law.

4 See,

further, Fulchiron, H., ‘Egalite, Verite, Stabilite: the new French Filiation Law after the Ordonnance of 4th July 2005’, The International Survey of Family Law, Jordan Publishing, Bristol, 2006, pp. 203–216. 5 See, Ancel, L’Adoption dans les legislations modernes (1958) where it is pointed out that between 1804 and 1939 a provision in the Civil Code provided that adoption did not remove a person from his family of origin; the function of adoption was to add to the adopted person’s rights, not take away (paras 62–3). Before 1923, only adults could be adopted.

13.2 Background

577

13.2.1 The Social Context Giving Rise to Adoption In France, as in other modern western nations, the ready access to improved methods of contraception, the availability of legal abortion, the change in society’s attitude towards ‘single mothers’, coupled with more relevant welfare benefits, the introduction of better techniques for assisting conception have combined in recent decades to radically reduce the number of unwanted births. In contrast, the number of approved prospective adopters on waiting lists for a child6 reached 25,000 in 2003 before falling back drastically to 12,200 in 2017. Inevitably, an imbalance in domestic demand and supply is driving up the number of those turning towards intercountry adoptions.

13.2.1.1

Marriage and Family Breakdown

Marriage rates in France are the lowest in Europe. Whereas in 1970 there were almost 400,000 marriages, by 2009 the numbers had fallen to just 250,000 and had reached 221,000 in 2019.7 The number of unmarried couples has quadrupled to around 2 million in the last two decades aided by the introduction of the pacte civil de solidarité (PACS) under law no. 99-944 of 15th November 1999 which protects the individual rights of each party, entitles partners to share property rights and to enjoy income tax benefits. Moreover, in France, as in England and many other countries, the introduction of legislation permitting same sex marriage has impacted upon adoption. While there was never any legal bar to the simple adoption of a person over the age of 18 by the partner of the adoptee’s parent, there were difficulties in relation to the simple adoption of a child under that age in terms of its legal effect on the exercise of parental responsibility. Statute n° 2013-404 of 17 May 2013, however, legalized same-sex marriage and provided parity of legal status with heterosexual marriage. Consequently a same sex married couple now have the right to adopt a child and either spouse can adopt the child (either biological or adoptive) of his/her spouse. The low marriage rate is accompanied by a high divorce rate, which more than doubled from 142,000 in 1980 to 290,000 in 2002, before falling back to 133,909 in 2010 and falling steeply to 62,321 in 2018.8 It is estimated that more than a third of marriages now end in divorce. All of which is perhaps in keeping with the French egalitarian ethos, which gives recognition to “citizens” rather than to a differentiating social status, and sets the social context for adoption. The use of adoption as an addendum to divorce, consolidating the reforming of families and 6 See,

Observatoire national de la protection de l’enfance (ONPE), treizième rapport au gouvernement, April 2019. 7 See, further, at: https://www.statista.com/statistics/464239/total-number-marriages-france/. 8 See, further, at: https://www.statista.com/statistics/465782/number-of-divorces-france/.

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constituting a significant generator of domestic adoption proceedings in this as in all modern western nations, has in France been confined to ordinary or ‘simple’ adoptions.9

13.2.1.2

Unmarried Mothers

In 2019, some 60% of births were of children born outside marriage, increasing from 56.6% in 201310 and significantly so from 44% in 2003.11 Although non-marital births no longer carry the stigma they once did—as all children have the same rights and an unmarried mother or mère célibataire is now entitled to generous state welfare benefits—nevertheless around 500–550 babies a year are voluntarily relinquished by their parents, taken into care and adopted, usually within 12 months.12 The legal consequences of extra-marital births were eased with the introduction of the Act of 3 December 2001 (loi n° 2001-1235) which, among other measures, eliminated the discrimination in inheritance rights that traditionally disadvantaged children ‘born out of wedlock’.13 This, in conjunction with improvements in the social consequences for unmarried mothers, has resulted in far fewer babies ‘nés sous X’ (or sous le secret) becoming wards of state as a first step to adoption. Accouchement sous le secret Traditionally, a woman’s right, under Article 341 of France’s Civil code, to give birth anonymously was known as accouchement sous X’ (because the birth mother was recorded on the birth certificate issued in the maternity hospital as ‘X’ and the child was referred to as ‘né sous X’) but records now refer simply to an “anonymous delivery” and to the mother as “X”.14 The right to anonymity, added to the Civil Code in 1993, has existed in one form or another since 1793 when, under the National Convention of the French Revolution, secret pregnancies and births were protected by law.15 It is the absence of recognition by the mother of the child (or denial of 9 See

Zachia Belmmoktar, info stat justice n° 175, fév. 2020, L’adoption de l’enfant du conjoint en 2018. 10 See, INED statistics (Institut National d’ Etudes Démographiques). 11 See, further, at: https://www.statista.com/statistics/957229/births-out-of-wedlock-france/. 12 See, Initial report to CRC, 1993, as cited by Selwyn, J., and Sturgess, W., op cit, at p. 37. 13 Note that the marital status of parents no longer determines the legal status of their children: whether married or not their child will have exactly the same legal status. See, Ordonnance n° 2005-759 of 4 July 2005, as since ratified by the Statute n° 2009-61 of 16 January 2009. 14 Article 341-1 of the Civil Code, introduced in 1993, precludes a child born to X from establishing any legal tie to the mother, even if her identity should be discovered. The law has been relaxed somewhat by Statute n° 2009-61 of 16 January 2009. See, also, Art. 325 of the Civil Code. The legal claim is available to the child where he/she has no legal filiation at all and no de facto parentchild ties. But in practice this almost never happens for X children since almost all are adopted within their first 10 months. Therefore the claim is barred due to the establishment of the adoptive filiation link. 15 Statute of 27 June 1904 and Decret-Loi of 2 September 1941. Also, see, Donovan, K., ‘Real Mothers for Abandoned Children’, Law & Society Review, 2002, p. 1.

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579

filiation) to whom she had given birth anonymously, that removes the necessity to obtain her consent for the child to be taken into state care.16 This right was examined by the ECtHR in the course of its judgment in Odièvre v. France.17 At that time the court decided in favour of upholding the right of anonymity, despite finding that the concept of anonymous births is relatively rare throughout Europe. In fact, as the court noted, a far greater number of states actually require the names of both mother and father to be registered at birth (see, further, Sect. 4.4.7.4). In January 2002 this right was modified by the introduction of a law allowing mothers who have a baby in secret to place their name in a sealed envelope which as….Pascale Salvage explains18 : leaves open the possibility to decide later in life if they accept that their child should have access to their identity—whether or not they accept to meet their child or not. This law also allows all mothers (even those who have not placed their name in a sealed envelope) to disclose their identity at any time in the future, which is then added to the child’s records.19

Arguably, in the absence of any further modification, the law still leaves intact the maternal right to choose permanent anonymity (see, further, below). Abandoned Children Under Article 381-1 of the French Civil Code (Article 350 before the law n° 2016297, march 14, 2016), an abandoned child is one who has been in the care of a private person, or an institution or the Child Welfare Service for a full year during which the parents have shown no interest in him or her. At the end of that period the court must issue a declaration of abandonment unless the parents have been prevented from taking care of the child “by any cause” (Law 2016-297, March 14th, 2016). In almost all cases the child was in the care or the Child Welfare Service, and the declaration gives him or her the status of “pupille de l’État” which allows he or she to then be adopted.

13.2.1.3

Abortion

The introduction of legal access to abortion in the 1970s had a dramatic effect on the number of babies termed ‘nés sous X’, or ‘sous le secret’, born to anonymous mothers, available for adoption. The abortion law reduced the number of such infants from an estimated 10,000 babies a year to between 500 and 600 reaching 700 in 2010, 610 in 2017 and down to 500–550 by 202020 (see, further, below). Abortion is legal

16 See,

Article L. 224-4, point (1), of the Social Action and Families Code. 1 FCR 621. Also, see, Kearns v. France Application No. 35991/04, ECHR, 10.01.08. 18 Note to author (19.06.2020). 19 See, further, at: www.cnaop.gouv. 20 See, See, for example, Lefaucheur, N., Etude - enfants nes sons X, Paris: CNRS-IRESCO, 2000 and further, at: https://www.onpe.gouv.fr/. 17 [2003]

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only up to 12 weeks21 (as opposed to 24 in the U.K.). In the years spanning the end of the 20th and beginning of the twenty-first centuries the rate of abortion leveled out to approximately 225,000 in 2010.22 It is estimated that the ratio of minors having abortions compared to the total number of abortions jumped 13-fold during the 1955– 2003 period.23 This is significant as the majority of children available for adoption have generally been due to ‘unwanted pregnancies’, such as babies born to minors with no means of support. As a consequence, the number of children offered for adoption, has dropped significantly.24

13.2.1.4

Assisted Reproduction Services

The fact that in law there is no right to a child, as Francoz Terminal points out, “makes the French Parliament very reluctant so far to give access to assisted procreation schemes to single persons or to same-sex couples that claim a right to have a child … adoption is then the only legal way to start a family”. However, a new law is now anticipated that will establish the right for single women or married female couples to have access to assisted procreation. At present, the three implicit normative arguments that founded the law in 1994, which are still in force after the bioethics law revision in July 2011—the welfare of the child, the illegitimacy of a “right to a child,” and the defense of the so called “social order”—are open to challenge on several grounds as reasons for limiting individual choice.25 Nonetheless, the greater availability than formerly of IVF and GIFT treatment must impact to a degree upon the need to have recourse to adoption. Surrogacy Surrogacy, is not merely unavailable but since 1991 it has been legally prohibited26 and indeed the legal position has hardened in recent years. A surrogacy contract is null and void, and violations are punished by civil and criminal sanctions (civil 21 See Article L. 2212-1 of the Code de la santé publique. Note also the ruling in Conseil constitutionnel June 27, 2001, # 2001-446 DC which rejected a challenge that such a raising of the legal threshold permitted “eugenic practices” by allowing more time for identifying foetal anomalies and so facilitating the selection of children to be born. 22 In 1955 there were 1,170,143 abortions; 550,127 in 1985; 343,024 in 1995; 341,588 in 2001; 190,363 in 2011, and 224,300 in 2018 (see, Institut National des Etudes Demographiques, ‘INED’). 23 In 1955 there were 14,000 abortions performed on minors compared with 40,000 in 2003, falling to I1,1612 in 2010 (see, Direction de la recherché, des études, de l’évaluation et des statistiques, ‘DREES’). 24 In 2011, there were 2345 wards of the state. 25 See, further, Fournier, V., Berthiau, D. d’Haussy, J. and Bataille P., ‘Access to assisted reproductive technologies in France: the emergence of the patients’ voice’, Med. Health Care Philos., Vol 16, Issue 1, 2013, pp. 55–68. 26 Under Article 16.5 of the Civil Code, such contracts are null and void. The Cour de cassation in 1991 invalidated a decision of lower jurisdictions giving effect to surrogacy by creating a filiation link between the child and the wife of the biological father after the completion of such a contract.

13.2 Background

581

sanctions by Articles 311-25, 325 and 332-1 of the Civil Code and criminal sanctions by Articles 227-12 §3 and 227-13 of the Penal Code). Any couple making an agreement with another woman that she will bear a child, impregnated by means of artificial insemination and surrender it on birth to the couple will be prohibited from adopting that child. Since 2010, French courts have consistently denied recognition to surrogate contracts and to any right to adopt children born abroad from surrogate mothers. However, although surrogacy is still prohibited in France, the Cour de cassation decided (December18th, 2019), that if the child is born in a jurisdiction where surrogacy is lawful then, on return to France, his or her birth certificate must be re-issued and the spouse of the birth father (man or woman) will be registered as the second parent, without having to adopt the child.

13.2.1.5

Increase of Children in Public Care

In 2016 the French child care population was 295,357, a rate of 20.1‰ of all children under 18,27 a significant increase from 2010 when the equivalent figures were 273,000 or some 19% of all children, and a dramatic increase since 1990 when they were 112,800 and 8% respectively. The majority of children in care tend to be aged 11 years or older, an age group which in any country would not be conducive to adoption. As has been observed28 : France encourages the adoption of younger children … but also regards successful integration into a foster family as a satisfactory form of permanence. All children in care in France, irrespective of age and status, must by law be put up for adoption as rapidly as possible once it becomes clear that return home is no longer a possibility.

In practice, the children concerned are much more likely to spend their childhood in long-term foster care or in an institution than with adopters. Foster Care In 1990, of 112,800 children in care, 55% were in foster care.29 By 2007, the figures were, respectively, 121,400 and 54%, indicating a fairly stable foster care population. Only slightly more than half of children in the public care system are accommodated with foster families—a distinctly low proportion relative to other developed nations— where they were placed by court order, their placements being subject to annual review. All foster carers receive professional training, even those registered as longterm, and are supported by local social work teams. Maintaining links between the foster child and their family of origin is a necessity because the majority of the birth parents retain their parental rights and responsibilities. The traditional reluctance to break family ties militates against resorting to adoption for children in foster care. 27 See,

further, at: https://onpe.gouv.fr/chiffres-cles-en-protection-lenfance. Selwyn, J., and Sturgess, W., International Overview of Adoption: Policy and Practice, University of Bristol, 2000 at p. 37. 29 See, Initial report to CRC, 1993. 28 See,

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Residential Care In France, a relatively high proportion of children in public care are in residential care; indeed, a survey once concluded that “France had the highest total of young children under three in institutional care in the E.U.”30 In 1990, of 112,800 children in care, 32% were in various forms of institutional care.31 In 2002–03 more than 2000 children, all less than 3 years of age, were in residential care.32 By 2007, of the 121,400 children in care, some 39% were in various forms of residential care. Wards of the State Pascale Salvage explains that child is a pupille de l’État if: (1) his parents are unknown; (2) his parents have consented to his or her adoption when they put him or her in the custody of the social welfare; (3) he is an orphan without family; (4) there has been a declaration of abandonment in court; (5) he or she has been declared as wards after parental have been withdrawn by court.33 The two most common categories are 1 and 4. The majority of the children under the local Welfare service are not pupilles de l’État and are not adoptable without their parents’consent. Falling from 24,000 in 1977 to 7600 in 1987, the number of wards of the state had stabilised at approximately 3300 in 1997 but had declined further to 2347 in 2010 though subsequently increased marginally to 2626 by 31st December 2016.34 Once declared a ward of the state, law 2016-297 requires that the child be placed for adoption if this is considered to be in their best interest.35 This is not always achieved. In 2001, only 1195 wards had been placed in a family with a view to adoption. By the end of 2003, out of 2882 such wards (average age two years and ten months), only 1009 were so placed, by 2010 this was true for about one-third but by 2016 nearly half were placed in families for adoption. If not placed within the first few months of becoming wards, children are unlikely to be so later on: 78% of placements occur within the first six months and 95% within two years. So, for example, in 2010 some 45% of children had been adopted within a year of their being warded. In aggregate, 68% of children exit from the status of ward via adoption.36 While age is a significant factor affecting placement, it is not the only one as among unplaced children under one year of age, some 37% have a physical or mental health problem. It has been estimated that overall, one-third of wards are not placed because of a disability or health problem, and 12% because they have brothers and sisters with whom an established relationship complicates placement 30 See, Chou, S. , and Browne, K., ‘The Relationship Between Institutional Care and the International Adoption of Children in Europe’, Adoption & Fostering, vol. 32, no 1, 2008, at p. 47. 31 See, Initial report to CRC, 1993. 32 See, Chou, S. , and Browne, K., op cit at p. 44. 33 Note to author (19.06.2020). 34 See, further, at: https://onpe.gouv.fr/chiffres-cles-en-protection-lenfance. 35 Article L. 225-1, as amended in 2016. 36 See, further, ONED at [email protected]. It reports that in 2010 children were adopted as opposed to 714 in 2009. These children were very young (77% less than one year old) and were adopted through para 1 of Article L. 224-4 of the CASF (73%) and by a department registered family (84%$).

13.2 Background

583

opportunities.37 As of December 31, 2016, nearly three-quarters of wards of the state were children admitted following a judicial declaration of abandonment (40%) or without parentage (33%). Wards of the state ‘fostered with a view to adoption’ are children fostered with a family approved for adoption or for whom the foster family has submitted an adoption application. They must share the home of their future adoptive parents for at least six months before the plenary adoption decision.38

13.2.2 Resulting Trends in Types of Adoption Apart from its use by step-adopters and others to legally consolidate reformed family units, domestic adoption in France has for many decades been numerically relatively insignificant. The virtual absence of children from a child care context (although a few are adopted this is almost invariably by their foster parents, with only a handful becoming otherwise available to domestic adopters), together with the dwindling availability of ‘sous le secret’ children and wards of the state, has meant that effectively adoption in France has for some time been largely intercountry adoption.39 The world wide contraction in this form of adoption has also affected France and, in common with other countries, the range of children now being adopted is changing as intercountry adoption accommodates a higher proportion of children who are older and/or have some degree of special needs. The previous difficulties with the child related data sources in France have largely disappeared.40 Since 2007 the Foreign Affairs department has issued detailed annual statistics on international adoption41 while statistical data on domestic adoption orders is available each year on the annuaire statistique de la justice42 and child protection data can be found on the website of the Observatoire national de la protection de l’enfance.43 However, to estimate the number of children adopted each year, it is still necessary to combine the figures produced by three different ministries: the Ministry of Justice

37 See,

INED adoption survey. 345 of the French Civil Code. 39 See, further, Halifax, J., ‘Why are there so many international adoptions in France?’, at: http:// www.uea.ac.uk/swp/icar2/pdf’s/Halifax99.pdf. 40 These problems were a cause of concern to the Committee on the Rights of the Child. In its Concluding Observations of the Committee on the Rights of the Child, France, U.N. Doc. CRC/C/15/Add.240 (2004), the Committee expressed regret at the reluctance of France to collect disaggregated data (para. 12). 41 See, further, at: www.diplomatie.gouv.fr/fr/adopter-a-l-etranger/la-mission-de-l-adoption/les-sta tistiques-de-l-adoption. 42 See, further, at: www.justice.gouv.fr/budget-et-statistiques-10054/annuaires-statistiques-de-lajustice-10304/annuaire-statistique-de-la-justice-23263.html. 43 ONPE, at: onpe.gouv.fr. 38 Article

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keeps an account of plenary adoption awards44 ; the General Department of Social Services (DGAS—Direction générale de l’action sociale) produces biennial statistics on wards of the state who benefited from plenary adoption45 ; and the Ministry of Foreign Affairs’ Intercountry Adoption Mission (MAI—Mission de l’Adoption Internationale) keeps a record of intercountry adoptions.46 Unfortunately, to some degree, these data sources still overlap though there are plans to update this system.

13.2.2.1

Third Party Adoptions

In France, the number of prospective adopters, who are approved by the Child Welfare Service (ASE—Aide Sociale à l’Enfance), tripled in fifteen years to reach 23,000 in 2001 before dipping slightly to 22,747 in 2011. In contrast, it is estimated that no more than 2000 to 2500 children each year are the subjects of plenary adoption. Domestic The number of third party domestic adoptions, is very low and tends to be confined to babies and young healthy children who can be adopted rapidly (most often born to anonymous mothers) and to older children who become wards of the state at a later stage. Child Care In France the adoption of children from the public care system is not a policy objective as is reflected in the fact that in 2011 of the 273,000 children in care only 2350 were adopted. A clear distinction is drawn between filiation (biological or adoptive relationships) and child protection: the latter is focused on disposal options to support families in need; by means of education, control and assistance measures, that enable parents to protect their children. As Selwyn and Sturgess have pointed out47 : There are children in care who are not adopted, either because they are “too old”, sick or disabled or are part of a sibling group i.e. children who do not conform to the expectations of would-be adoptive parents. These children often do not find a family … the numbers of 44 It is the number of court decisions that are counted rather than the number of children involved, no distinction is made between intra- and extra-family adoption and adoptions in foreign countries where adoption legislation is equivalent to plenary adoption are not counted. The latter do not need a French court decision, they are directly transcribed on the registers of the servce central de l’état civil in Nantes, so their number is unknown, this service does not provide statistics. 45 However, children born in France and directly entrusted to an accredited adoption association by their parents, are not officially registered anywhere. 46 However, their database records the annual number of visas issued for the purpose of plenary adoption, by country of origin, which always exceeds the actual number of formally completed adoptions: many applications for plenary orders result in simple adoptions; foreign residents in France may request a visa to allow a child from their family, already adopted in their country of origin, to join them in France; and the year of the court decision may be later than that when the visa was issued. 47 See, Selwyn, J., and Sturgess, W., op cit, at pp. 37–38.

13.2 Background

585

domestic children adopted in France each year is still fairly low. In 1989, there were 1566 domestic adoptions, only 1.4% of children in care.48

Adoption, with all the safety and emotional rehabilitation implied in making a fresh start for a wanted child in the home of those needing to parent, would seem an attractive means of achieving permanency for abused or neglected children admitted to the public care system. Unfortunately, this is as difficult to achieve in France as elsewhere and an abused child is much more likely to be admitted to either foster care or to accommodation in a residential unit. In practice only a small minority of the total child care population ever become available for adoption. Child care adoptions are restricted to ‘wards of the state’ and largely confined to children who are young and healthy. Children with Special Needs In France, as Selwyn et al. have pointed out, “children with special needs, especially those with a disability, are far less likely to be adopted”.49 As in the U.K. and elsewhere, there is a distinct lack of prospective adopters for children with a disability who are instead most usually accommodated in small specialist residential units such as those provided by Emmanuel for severely impaired children. However while this remains true of domestic adoption it does not reflect the reality of contemporary intercountry adoption. Increasingly the children adopted from traditional sending countries such as China, Columbia and Thailand have some degree of health or social care need. Intercountry In 2019, a total of 421 children (615 in 2018) from 5 countries were adopted by French parents: Vietnam, 49; Colombia, 43; Thailand, 37; Haiti, 30; and the Republic of Congo, 28. The extent of the changes that have affected ICA over the course of the past two decades is striking. In 1997, a total of 3528 children from 70 countries were adopted into France. In 2003, of the 4500 children adopted in France, almost 4000 (90%) were born abroad.50 The rise at the turn of the century was largely attributable to the many adoptions from Vietnam51 and Haiti. While in 2004 intercountry adoptions totaled 4079, and had dropped to 3504 by 2010, nonetheless the annual average remained at a fairly constant level of 3200–4000 during the period 1998–2010. In 2011, however, the total fell to 1995.52 It is also noticeable that the children being adopted were young: in 2008, no less than one-fifth involved babies of 12 months 48 Ibid.,

citing Initial report to CRC, 1993. Selwyn, J., and Sturgess, W., International Overview of Adoption: Policy and Practice, University of Bristol, 2000 at p. 37. 50 See, further, at: www.diplomatie.gouv.fr/fr/adopter-a-l-etranger/la-mission-de-l-adoption/les-sta tistiques-de-l-adoption. 51 In 1998, a total of 1343 children were adopted from Vietnam, falling to 469 in 2010 (source, Selman, Adoption Advocate No. 44: Global Trends in Intercountry Adoption: 2001–2010). 52 See, further, ‘National experiences on the management of the demand for intercountry adoption’ at: www.childoneurope.org. 49 See,

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or younger, and 67% were in respect of children aged not more than 4.53 It is ironic, perhaps, that France is also one of the few European countries with a high proportion of children aged less than 4 in its state child care population.54 Transracial France’s colonial past ensured that it would have an early introduction to transracial adoption. Children from Vietnam, Algeria, Mali, Burkina Faso, Haiti and other countries to which France had strong ties have for many decades found their way into the French adoption process and have given it a strong transracial dimension. However, in recent years, as fertility rates fall and concerns regarding a more salient Islamic culture rise, there has been evidence of difficult racial tensions and of public contention regarding immigration particularly from Africa.

13.2.2.2

First Party Adoptions

As in other developed western nations, the use of adoption by a parent or relative of a child in order to legally consolidate a reformed family unit, is well established. Art 345-1 of the Civil Code provides for the plenary adoption of a child by the spouse of the child’s parent while Art 360 provides for the simple adoption of a child by the parent’s spouse. Step-Parents A large proportion of annual adoptions are by step-parents. The applicant step-parent must be married to the birth parent of the child to be adopted.55 Same sex stepadoptions, where one person for example adopts the child of their divorced lesbian partner, are now possible but it remains illegal for same-sex unmarried couples. Kinship Leaving aside step-parent adoptions, most adoptions by relatives are simple rather than plenary in nature.56

13.3 Overview of Principles, Policy and Law There is very little in the way of official documentation examining adoption policy and law in France. Such as there is relates in the main to the government’s periodic 53 See,

Service de l’Adoption Internationale. Chou, S. and Browne, K., ‘The relationship between institutional care and the international adoption of children in Europe’, Adoption & Fostering, Vol 32, Issue 1, 2008, pp. 40–48, at pp. 45–46. 55 See, Art. 343 of Civil Code. The law is to be amended. 56 See, further, Robcis, C., The Law of Kinship: Anthropology, Psychoanalysis and the Family in France, Cornell University Press, 2013. 54 See,

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587

reporting obligations to the Committee on the Rights of the Child. It can, however, be fairly said that in response to the latter’s recommendations, and as a consequence of adverse rulings made by the ECtHR, France has adjusted its policy and laws relating to adoption to increase compliance with Convention provisions.

13.3.1 Adoption Principles and Policy The structural distinction between plenary and simple adoption (see, further, Sects. 1.2.1 and 5.2.1) has always given the French adoption process a different profile from other countries, particularly those belonging to the common law tradition.

13.3.1.1

Principles

As a signatory nation to both the UN Convention on the Rights of the Child 1989 and the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 1993, France has embedded some key principles into its adoption law. The Welfare Interests of the Child In the past, the Committee on the Rights of the Child has expressed concern at inconsistencies in French legislation and noted that in practice the interpretation of the legislation and determination of which child is “capable of discernment”, could result in the possibility of denying a child the right to express their views and have them taken into account, or make it subject to the child’s own request which may give rise to discrimination.57 Consequently, Arts 345 and 361 of the Civil Code now provide (for plenary and simple adoptions, respectively) that the adoption of every child aged 13 or older is conditional upon the prior consent of that child. Art. 348-3 requires this consent to be given before a notary public in France or abroad or before the diplomatic authorities abroad. If the child is a pupille de l’État, parental consent is instead given by the aide sociale à l’enfance. It is revocable up until the adoption order is issued by the Tribunal Judiciare (previously known as the Tribunal de Grande instance).58 If the adoption is pronounced in France, the adoptee must be heard in court if he or she is “capable of discernment”. Openness As illustrated by the legacy of ‘accouchement sous le secret’ there is little in the way of a culture of ‘openness’ in the French adoption process. Moreover, as the challenge 57 See, Concluding Observations of the Committee on the Rights of the Child, France, op cit

at para. 21. 58 The name change occurred in 2020. Author thanks Pascale Salvage for bringing this to his attention (note to author: 19.06.2020).

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to the anonymity right was unsuccessful in Odièvre v. France59 —when the ECtHR ruled that denying children given up at birth the right to discover their biological parents’ identity did not violate the European Convention—it remains the case that technically such children cannot be viewed as unduly discriminated against (see, further, Sects. 4.3.2.2 and 4.3.4).

13.3.1.2

Policy

There is no indication of any independent French policy initiative in respect of adoption. The correlation between a high incidence of young children in residential care and a high level of intercountry adoption would seem to indicate an unaddressed policy issue whereby the latter serves to avoid dealing with the fact that very many of the former are not available for adoption.

13.3.1.3

Adoption Alternatives

Unlike the U.K., there is a strong traditional preference for relying on long-term foster care as a more appropriate option than adoption for furthering the welfare interests of a child in care. In special circumstances, a non-parent (e.g. a foster parent, grandparent or other relative) can apply to the juge et tutelles (guardianship court) for a tutelle order (guardianship).

13.3.2 Contemporary Adoption Related Legislation The present adoption system, first introduced in the 1804 Civil Code has since been subject to periodic reviews and updating. Currently the statutes (66-500 of 11th July 1966, as amended) and Part VIII of the Civil Code (‘Of Adoption’) constitute the primary legal framework for adoption in France. The Code of Families and Social Action is also relevant.60 The main statutes governing adoption in France are: Statute n° 2016-297, March 14th, 2016 This pursues the objectives initiated by the law of March 5, 2007 to “contribute to the knowledge of the population of minors and young adults in danger benefiting from a child welfare benefit or a judicial measure of child protection, as well as that of the activity of child protection services; and to facilitate the analysis of the coherence 59 Odièvre

v. France [2003] 1 FCR 621.

60 See, further, at: Code de l’action sociale et des familles (C.A.S.F.) at: https://www.legifrance.gouv.

fr/affichCode.do?cidTexte=LEGITEXT000006074069&dateTexte=20190508, archived at https:// perma.cc/H7BU-RVD7.

13.3 Overview of Principles, Policy and Law

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and continuity of the actions implemented for the benefit of minors, their families and young adults under the protection of children”. It also mentions that the hearing of the child, in the adoption process, is compulsory (Civil code, Article 353). Statute n° 2007-308 of 5th March 2007 This statute, amending Art 388-1 of the Civil Code, provides that “the discerning child has the right to express his/her view in any judicial proceeding that concerns him/her (e.g. in an adoption process). The hearing of the child (always in private) cannot be refused by a judge where this hearing is at the child’s request.” As FrancozTerminal comments, this was “a reform that greatly strengthened the right of a child to be heard and to express his/her views before a judge”.61 Statute n° 2005-744 of 4th July 2005 This important statute introduced some technical reforms. It aimed to improve the adoption process by harmonizing the approval process across the country (the administrative procedure, at the end of which the candidate is is granted an ‘assent’ to adopt, managed by local authorities—the Conseils départementaux). The reform also aimed to improve the support to adopters, especially those engaged in intercountry adoption, and created the Agence Française de l’adoption62 to assist such adopters. It strengthens the assistance and support given to adopters, once children have been entrusted to their care, by introducing mandatory post-adoption service provision to be delivered either by the adoption service of the local authority or by the Agence Française de l’adoption.63 Statute n° 2002-93 of 22nd February, 2002 This statute granted former adoptees and wards of the state the right to access their records. It also created a new commission, the Conseil national pour l’accès aux origines personnelles (CNAOP), to mediate between the interests of adopters, adoptees and birth parents. Statute n° 2001-111 of 6th February, 2001 This statute introduced provisions relating to intercountry adoption in order to have the French legislation “fit” with the Conventin de La Haye, 29 mai 1993 Statute n° 98-771 of 1st September, 1998 This statute establishes the arrangements for appraising applications for authorisation to adopt a child in State care (Articles 1, 4 and 5). 61 Note

to author (20.12.2013). further, at: www.agence-adoption.fr/home/. 63 An alternative view of the impact of this law has been expressed by Terre des Hommes which asserts that: “Since the passing of a law on 4 July 2005, the involvement of the French Central Authority in “strictly private” adoptions with non-contracting states has noticeably diminished. The situation is therefore highly alarming”. See, Lammerant, I. and Hofsetter, M. (eds) Adoption: at what cost?, Terre des Hommes, Lausanne, Switzerland, 2007, at p. 12. 62 See,

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13 France

Statute n° 96-604 of 5th July, 1996 This statute (the MATTEI Act) makes adoption easier by relaxing certain restrictions and simplifying administrative procedures, for example by reducing the time-limit for withdrawing consent from three to two months. • Statute n° 94-629 of 25th July, 1994 • Statute n° 76-1179 of 22nd December, 1976 • Statute n° 66-500 of 11th July, 1966 This statute, the basis of modern adoption, introduced the two legal forms of adoption that now exist in France: plenary adoption which severs the links between the child and its birth family and creates a new set of parental relationships; and simple adoption which institutes a second set of relationships with the adopting parent/s without severing the links with the family of origin. Whereas previously legitimation adoptive was restricted to two non-separated spouses, adoption plénière was now available to an unmarried person. Moreover, consensual adoption for both ‘legitimate’ and ‘illegitimate’ children was introduced for circumstances where both mother and father have given their consent. Pascale Salvage adds” Since 2005, France has suppressed the terms “legitimate, natural, illegitimate”. As far as adoption is concerned, the only difference that remains is that unmarried couples cannot adopt in common”.64

13.3.2.1

The French Civil Code: Part VIII; of Adoption (Articles 343 to 370-5)

The Civil Code is subject to ongoing amendment. • Chapter I—Of Plenary Adoption (Articles 343 to 359) – Section I—Of the Requisites for Plenary Adoption (Articles 343 to Articles 381-1 and 381-2 350) – Section II—Of the Placing for Purposes of Plenary Adoption and of the Judgment of Plenary Adoption (Articles 351 to 354) – Section III—Of the Effects of Plenary Adoption (Articles 355 to 359). • Chapter II—Of Simple Adoption (Articles 360 to 370-2) – Section I—Of Requisites and Judgment (Articles 360 to 362) – Section II—Of the Effects of Simple Adoption (Articles 363 to 370-2). • Chapter III—Of the Conflict of Laws relating to Adoption and of the Effects in France of Adoptions Ordered Abroad (Articles 370-3 to 370-5).

64 Note

to author (19.06.2020).

13.3 Overview of Principles, Policy and Law

13.3.2.2

591

The Code of Families and Social Action

Essentially the national child protection legislation, the Code provides that each département has an agency—service de l’aide sociale a l’enfance—to enforce child protection measures in its area.

13.3.3 International Law France has signed but not ratified the European Convention on the Adoption of Children which came into force on 24 April 1968. It has signed the U.N. Convention on the Rights of the Child 198965 and its two Protocols.66 It has also signed and ratified the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 199367 and established the Mission Adoption Internationale, a department of the Ministry of Foreign and European Affairs, as the Central Authority for Intercountry Adoption (see, further, Sect. 4.4).

13.4 Regulating the Adoption Process The adoption process in France, being essentially consensual in nature and catering for both simple and plenary adoption orders, in domestic and intercountry proceedings, is subject to a lighter regulatory regime than is applied in most modern common law countries. The process requires two successive steps: an administrative procedure, which leads to the grant of an assent (agrement), and then a judicial procedure leading to the adoption order. The responsibility for making adoption orders is therefore vested in both the Head of the District Council (President du Conseil General) and his agents regarding the administrative steps and in the courts with regard to the judicial procedure.

65 Signed

on January 26th, 1990. Optional Protocols on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict, as well as the ratification of ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. 67 Signed on April 5th, 1995 and ratified on June 30th, 1998. 66 The

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13 France

13.4.1 Length and Breadth of Process In keeping with its civil law tradition, the French adoption process is not as structured, into carefully delineated stages each with accompanying specific statutory responsibilities, as is the case in most modern common law countries. There is no statutory pre-adoption counselling service for birth parents, for example, nor does the process extend to include a statutory entitlement to tracing and reunification services.

13.4.2 Role of Adoption Agencies and Other Administrative Bodies Government policy in respect of adoption is the joint responsibility of the Foreign Affairs Department and the Family Department (attached to the Department of Health and Social Care). The relevant government bodies are the Conseil national de la protection de l’enfance (CNPE), the Agence Française de l’adoption (created by the Act 2005-744 of 4th July 2005 for ICA) local authorities (Conseil départementaux), the Agence française de l’adoption (AFA) and the authorized adoption agencies. In practice any person wanting to adopt a ward of the state or a foreign child has to apply to the adoption service within the Child Welfare Service (Aide Sociale à l’Enfance) in their département of residence for approval. Prospective adopters intending to adopt a child from outside the jurisdiction will most often avail of the services of the Agence française de l’adoption (AFA) or another specialist authorized private adoption agency. The Agence Française de l’adoption Established on 18th May 2006, this agency is ostensibly a public body, accredited to mediate in all Hague compliant countries and such other countries, with which France has a partnership agreement, as the Minister may determine on a case by case basis. It is seen as having a dual status as both a state agency and an accredited body. Terre des Hommes has commented that the agency “seems to be much more a mechanism aiming at the acceptance of semi-private or quasi-private adoptions by the countries of origin, which no longer want private adoptions, than an accredited body”.68 The Child Welfare Service Approval by the Child Welfare Service has been compulsory for adopting a ward of the state since the statute of the 6th June 1984, and for adopting a foreign child since that of the 5th July 1996 (Art. 11.-I). This ‘assent’ process has since been harmonized throughout the country by Statute n° 2005-744 of 4th July 2005 and 68 See, Lammerant, I. and Hofsetter, M. (eds) Adoption: at what cost?, Terre des Hommes, Lausanne,

Switzerland, 2007, at p. 28.

13.4 Regulating the Adoption Process

593

ancillary statutory instruments.69 Assent or refusal to assent must be communicated within 9 months after the initial request from the applicant.70 Once granted, the assent remains valid for five years but adopters must confirm their application each year to the adoption service of the Child Welfare Service.71 Only registered child-minders and those intending to acquire a child over two years old with parental consent, may adopt without approval. In case of rejection, administrative and legal recourse is possible. Once approved, two options are open to the prospective adopters. Firstly, if they wish to adopt in France they are registered on a list of prospective adopters established by the local authority. The adoption service of the Child Welfare Service manages the process of entrusting a ward of the state to adopter/s. The child will be matched to an adopter whose parental profile meets the particular needs of that child. Secondly, if they wish to pursue an intercountry adoption then, since 2005 they are entitled to avail of assistance from the French Agency for Adoption (Agence française de l’adoption) which was established to support such adopters. Applicants trying to adopt in another country are not obliged to inform the adoption service of the Child Welfare Service regarding every step they take; once a child has been suggested, however, they must submit an application in order to obtain the documents needed for adoption. The National Council for Access to Personal Origins (CNAOP) This agency was established in 2002 by a statute that also granted former adoptees and wards of the state the right to access their records and discover the names of their parents, relatives and their medical conditions.72 The role of the agency is to mediate between the interests of adults who wish to know their origins, those of pregnant women wishing to maintain their anonymity, and those of children who have the need to access the information necessary to form an authentic sense of personal and cultural identity. Mission de l’Adoption Internationale This government agency located within the French Ministry of Foreign Affairs was established in order to co-ordinate the processes of intercountry adoption. It acts as a central authority for the purposes of the Hague Convention and is responsible for authorizing and supervising intercountry adoption agencies.

69 See, Decree n° 2006-981 of 1st August 2006 and n° 2006-1272 of 17 October 2006. The legal provisions have been integrated to Art. R225-1 to R225-11 of the Social Welfare and Family Code. 70 See Art. L225-2 of the Social Welfare and Family Code. 71 See R225-7 of the Social Welfare and Family Code. 72 Loi no 2002-93 du 22 janvier 2002 relative à l’accès aux origines des personnes adoptées et pupilles de l’Etat.

594

13.4.2.1

13 France

Adoption Agencies

Adoption within France must be undertaken through a registered accredited body and on a not-for-profit basis. There are 41 such ‘accredited bodies’ in France with responsibility for adoption, or the placement for adoption, of minors under the age of 15. They are accredited and supervised by government officials and may have their licence withdrawn if they are found to have breached regulations or standards of practice. In practice most domestic adoptions are processed by the Aide sociale à l’enfance service which being a public body does not charge fees. There are private agencies like Famille adoptive française which operate largely but not exclusively on an intercountry basis and are entitled to charge for expenses. Other foreign adoption agencies, such as those based in the U.S., may offer services to French citizens on a strictly commercial basis though technically for French citizens to pay fees for adoption services is in breach of the Civil Code, Article 16-1. Terre des Hommes has, in the past, expressed concern regarding the large number of private adoption agencies in France, the official acceptance of private adoptions and the lack of effective regulatory controls.73 It has pointed out that there is no legal requirement that French prospective adopters pursue their application through an accredited body, they may instead do so privately and many choose that option: Terre des Hommes has estimated that “private adoptions constitute two-thirds of intercountry adoptions”.74 Pascale Salvage comments that this no longer reflects ICA practice in France.75

13.4.3 Role of the Determining Body Like the common law jurisdictions, however, the bulk of the assessment work in respect of the adopters, and as regards ensuring that the proposed application is in keeping with the welfare interests of the child concerned, is conducted within an administrative framework. The Head of the District Council (President du Conseil départemental), an elected local authority, together with his internal agents, in particular the Childhood Welfare Service (ASE—Aide Sociale à l’Enfance) and the Assent Commission (Commission d’agrement) are the lead government regulators of the administrative stage of the process. On completion of that stage, a special District Court (Tribunal judiciaire) located in each local authority (Department) will finalise the adoption process; though few of the latter are competent to engage in ICA applications.

73 See, Lammerant, I. and Hofsetter, M. (eds) Adoption: at what cost?, Terre des Hommes, Lausanne,

Switzerland, 2007, at pp. 12–13. at p. 26. 75 Note to author (19.06.2020). 74 Ibid.,

13.4 Regulating the Adoption Process

13.4.3.1

595

The Role of the Judiciary

Adoption in France, although including a significant administrative component, is essentially a judicial process. It falls ultimately to the District Court (Tribunal judiciaire) to either grant or refuse the adoption order sought. The Tribunal judiciaire is also the body responsible for overseeing all international adoptions.76

13.4.4 Registration For a simple adoption order to be recognized in France and for the adopted child to acquire French nationality, an application must be filed with a Tribunal judiciaire. In the case of a plenary adoption, the adoptee is automatically French if that is the nationality of one of the adopters.

13.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria In France, the consensual nature of adoption and the more loosely regulated approach is evident in the criteria governing the parties entry to the process.

13.5.1 The Child Under Article 347 of the Civil Code, the following may be adopted: children in respect of whom the mother and father or the Family Council have validly consented to adoption; wards of the state (found children, orphans77 and those whose parents having been deprived of all parental responsibility78 are then entrusted to the Child Welfare Service as pupilles de l’État); and children declared abandoned under the conditions provided for in Article 350. The Social Welfare and Family Code governs the adoption of children from the public care system. Article L225-2 states: Children in State care may be adopted either by persons given custody of them by the children’s welfare service wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt …

76 See,

Statute n° 2009-526 of 12 May 2009. those orphans without any extended family members able to undertake guardianship responsibility and therefore entrusted to Child Welfare Services. 78 See Art. L224-4 of Social Welfare and Family Code. 77 Only

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13 France

Foreign children may also be adopted. Article L225-17 of the Social Welfare and Family Code states: Persons entrusted with a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in Articles L225-2 to L225-7 of this Code.

Where plenary adoption is contemplated (for children under 15 years of age), this is normally only allowed where the child has been entrusted to the prospective adopter and lived in his/her home for at least six months.79 For older children, plenary adoption is permitted (assuming all other conditions are met) “during the minority of the child and within two years following his coming of age” only if the child, before reaching 15 years of age, either (i) lived in the home of persons who did not fulfil the statutory requirements for adopting or (ii) was the subject of a simple adoption.80 In domestic adoptions, when the child is under two years of age and is not related to the adopter by kinship or marriage, he or she must be delivered to a child welfare service or to a duly authorised body for adoption. This provision81 is designed to avoid direct contact between the biological family and potential adopters. It is also intended to bar any possibility of circumventing the legal prohibition on surrogacy by using a legal provision entitling a birth parent to consent to the adoption of their child by a third party. Pascale Salvage adds “Yes, but nowadays it has become very hypocritical since surrogacy, as long as it has occurred abroad, is largely tolerated”.82 There is no age limit for adoptees in the context of simple adoption; they may be adopted even though they are past the age of majority.

13.5.1.1

The Welfare Threshold

Of all the above possible categories of children who may be eligible for adoption it is really only those who fall within the ambit of Art. L224-4 of the Social Welfare and Family Code for whom their welfare is a positive influence at this stage. Only for that very small minority, who have been so abused by their parents that the latter have been judicially stripped of their right to custody, can it be said that a breach of the welfare threshold is the trigger for their entering the adoption process. For all others, welfare is a default factor or one that comes into play later. Where the child is older than 13, then his or her personal consent is a necessary prerequisite for a plenary adoption.83 It is also necessary for a simple adoption.84 79 Article 345 of the French Civil Code. This is a mandatory requirement that the District court (Tribunal de Grande Instance) have to check before ordering a plenary adoption of the child. It is not required for a simple adoption. 80 Ibid. 81 Article 348-5 of the French Civil Code. 82 Note to author (19.06.2020). 83 See, Art. 345 of the Civil Code. 84 See Art. 360 in fine of the Civil Code: L’adoption simple est permise quel que soit l’âge de l’adopté. (…) Si l’adopté est âgé de plus de treize ans, il doit consentir personnellement à l’adoption.

13.5 Threshold for Entering the Adoption Process: Eligibility …

597

13.5.2 The Birth Parent/s In French law, adoption requires the consent of the biological parents. Once the child’s filiation to both parents has been established, their consent is necessary, unless grounds exist for this to be dispensed with (see, further, below). The consent must have been given freely, by way of a certified document,85 or before a French or foreign notary, a French diplomatic or consular agent or, most usually, before the Childhood Welfare Service (ASE—Aide Sociale à l’Enfance).

13.5.2.1

Unmarried Mother

The consent of the mother is required unless this can be dispensed with (where she has given birth anonymously) or cannot be obtained (in relation to a ‘found’ child whose identity cannot be established), as, for example, if the child concerned has been abandoned. Having given consent, the parent then has a two-month period during which she can change her mind and retract the consent.86 The law and procedure governing an ‘accouchement sous le secret’, which applies regardless of marital status, was outlined by the ECtHR in the case of Kearns v. France87 (see, further, Sect. 4.4.7.4) as follows: • Two days after giving birth, the mother had a protracted interview with the social services, at the end of which she signed a record of the child’s placement in state care in accordance with Article L. 224-5 of the Social Welfare and Families Code and handed over a folder intended for the child, which contained a letter, photographs and administrative documents. The record stated that she wished to have the child taken into State care, requested secrecy and gave consent to adoption under Article 348-3 of the Civil Code. • She was given “Information on the placement” which stated that – a child who is claimed back within a period of two months by the parent who entrusted the child to the Child Welfare Service will be returned to that parent without any further formalities88 – if the child has a second parent who did not entrust him or her to the service and who claims the child back within a period of six months, the child will be returned to that parent without any further formalities89 – once these periods have expired (two months if the sole parent or both parents entrusted the child to the service; six months if the second parent did not entrust the child to the service), an application for judicial review of the child’s 85 See

new Art. 348-3 as amended by Statute n° 2010-1609 of 22 December 2010.

86 Ibid. 87 Application 88 Article 89 Ibid.

No. 35991/04, ECHR, 10.01.08. L. 224-6, paragraph 2, of the Social Welfare and Families Code.

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13 France

placement in State care may be lodged, within thirty days from the date of the formal registration, with the tribunal de grande instance90 – beyond these time-limits if the child has been placed for adoption, any application to have the child returned will be inadmissible.91 • She was given a notice setting out the effects of placement in state care and of consent to adoption and the conditions for recovery of the child and withdrawal of consent. • She was given a model letter requesting the return of the child and/or withdrawing consent to adoption, if consent has been given. • On the same day, she gave her consent to the child’s adoption and certified that she had received the above information, understood the effect of giving consent and accepted the consequences of the ‘accouchement sous X’ process. The child, who now had no legally established parentage, was then placed with foster parents by the state authorities with a view to her adoption under Article 351 of the Civil Code.

13.5.2.2

Unmarried Father

Again, where the identity and whereabouts of the unmarried father are known, his consent is required unless grounds exist for it to be dispensed with. However, this is only the case where filiation is established: the consent of a putative father, without any legal link to the child in question, is neither required nor sought.

13.5.2.3

Failed Parental Rehabilitation

Art. L224-4 of Social Welfare and Family Code makes provision for the possible adoption of those children whose parents have been deprived by the courts of all parental responsibility due to their criminal abuse, neglect or failure to protect. Before such a ruling is made, however, every effort will be made to restore the child to safe parental care, or to care within the extended family. An agreed plan or projet pour l’enfant will be drawn up between authorities and the parent/s allowing for all options to be explored and tested. This may take the form of a placement a domicile (permitted under the policy of service d’adaptation progressive en milieu naturel) where essentially a child is returned home as part of an intensive professional investment designed to improve parenting skills, or a supervised parent and child residential placement, an accueil sequential, which allows for a time share arrangement between family home and a specialised training unit. The adoption of a child in circumstances of failed paental care is viewed very much as a last resort. 90 Article 91 Article

L. 224-8 of the Social Welfare and Families Code. 343 of the Civil Code.

13.5 Threshold for Entering the Adoption Process: Eligibility …

599

13.5.3 The Adopters: Eligibility and Suitability Criteria The criteria applied for approving adopters vary in nature according to the type of adoption order sought, whether simple or plenary, and are applied with more stringency to third party adopters than to those who are related to the child.

13.5.3.1

Third Party Adopters

The request for adoption must be addressed to the Head of the District Council (President du Conseil départemental) of the District in which the applicant resides. The relevant Child Welfare Service (ASE—Aide Sociale à l’Enfance) is notified and it informs the applicants as to the procedure. If they wish to proceed, the applicants must provide the Child Welfare Service, together with their application92 : • a copy of his or her birth certificate and family file (livret de famille) if the applicant has children; • a copy of his or her police record (bulletin no 3 du casier judicaire); • a medical certificate attesting that his or her health and the health of those persons living in his or her home are compatible with welcoming the adopted child; • documents attesting to his or her financial means; and • the completed questionnaire that was given to him/her on their first meeting with the adoption service. The questionnaire will require: information on their marital status; their past and present family situation; information on their family of origin (parents, brothers and sisters); their occupation, income, financial commitments; and will invite a brief outline of their reasons for adopting.93 The applicant/s must then be assessed in accordance with the usual eligibility and suitability criteria. Eligibility Criteria Article 343 of the Civil Code states that: Adoption may be applied for by a married couple who have not been judicially separated and have been married for more than two years or are both over twenty-eight years of age.

Thus, applicants may be a married couple living together (not judicially separated) and applying jointly. For both domestic and intercountry adoptions spouses seeking to adopt must have been married for more than two years, unless both are older than 28 years.94 There is no upper age limit nor is there a required maximum age difference between adopter and adoptee. Third party adopters must be not less than 92 See new Art. R225-3 of the Social Welfare and Family Code as amended by the Decree n° 2006-981 of 1st August 2006. 93 Art. R225-3 of the Social Welfare and Family Code provides that this questionnaire must be given to the prospective adopter/s at the first meeting. 94 Article 343 of the French Civil Code.

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13 France

15 years older than the child whom they propose to adopt.95 There are no requirements regarding race or religion. A married person may apply alone. If not judicially separated, however, then his or her spouse’s consent is required unless that spouse is incapable of expressing his or her intentions.96 An unmarried couple cannot make a joint application97 ; only one of the partners can be the child’s adoptive parent. Article 343-1 of the Civil Code states that: Adoption may also be applied for by any person over twenty-eight years of age. …

Thus, where the applicant is a single person, he or she must be over 28 (though in practice getting approval from the Child Welfare Service can be difficult).98 Given that French law expressly permits the right of single persons to adopt, the state cannot therefore take ‘discriminatory’ action when applying the law by refusing to accept applications from homosexuals or lesbians.99 Suitability Criteria The prospective adopters are assessed by the Child Welfare Service in accordance with the usual criteria relating to psychological, financial, social, educational and family situation. Where that agency has refused approval or not issued it within the legal time limit, the court can nevertheless grant the adoption if it deems those making the request are fit to look after the child, and that this would be in the latter’s best interests.

13.5.3.2

First Party Adopters

Where both spouses are applying to adopt the child of one of them, there is no age limit nor any requirements regarding duration of marriage.100 There must be an age difference of 10 years between adopter/s and the child concerned101 ; though the court may make an order where the age difference is less in certain circumstances.102 The minimum age of 28 years for adoption by a sole applicant does not apply where that person is adopting their spouse’s child.103 In that case a plenary adoption is permitted only if the said child has a legally established filiation exclusively with

95 Articles

344 of the French Civil Code. 343 and 343-1 of the French Civil Code. 97 Articles 346 of the French Civil Code. 98 Articles 343-1, 343-2 and 343 of the French Civil Code. 99 See, the ruling of the ECtHR in E.B. v. France, Application No. 43546/02, 22 January 2008. 100 Article 343-2 of the French Civil Code. 101 Article 344 of the French Civil Code. 102 Article 344 of the French Civil Code. 103 Articles 343-1 and 343-2 of the French Civil Code. 96 Articles

13.5 Threshold for Entering the Adoption Process: Eligibility …

601

said spouse104 ; if the parent other than the spouse has been completely deprived of parental authority; or if the parent other than the spouse is dead and has left no first degree relatives, or if these have obviously lost interest in the child.105 A cohabitee or registered partner of the birth parent, who has custody, is not eligible to adopt the latter’s child as this would result in the other birth parent losing parental authority over their child. The court will refuse to order a simple adoption in relation to the child of unmarried birth parents.106

13.5.3.3

The Assent Committee (Commission d’Agrement)

Within nine months of the registration of the application, the applicant is notified of the grant or refusal of the assent. Committee approval is conditional upon a finding that “the conditions offered at the family, educational and psychological levels correspond to the needs and best interests of the child.”107 The decision will state the number of children, if any, that may be adopted, and may include a statement regarding restrictions on the children to be adopted, such as the number and their age. If the grant of assent is refused, the applicant can appeal the decision to an administrative court. The assent is effective for a five-year period, and remains valid if the applicant moves to another location in France, subject to a registration to the Head of the District Council (Conseil départemental). Since 1st September 1998 any approved person wishing to adopt a ward of the state or a foreign child has had to confirm each year their continuing intention to adopt. The 2005 statute strengthened the monitoring of those prospective adopters who do not take further steps to adopt a child after being granted an assent. Two years later, if no children have been entrusted to the prospective adopter/s, the adoption service will arrange a meeting to clarify their intentions and determine whether updating socialwork reports are needed or, if necessary, if the assent should be withdrawn.108

104 Art.

435-1 bis of the Civil code as amended by the Statute n° 2012-404 of 17 May 2013 added a new category viz: where the child has been adopted as a single person exclusively by the said spouse. 105 Article 345-1 of the French Civil Code. 106 See, Cour de cassation 20th February 2007 n° 06-15.647 and n° 04-15.676. The two cases concerned same-sex couples but sexual orientation was irrelevant. Adoption was considered as contradicting the best interest of the child since it would thereby deprive the birth mother of parental responsibility for her children (author acknowledges with thanks the advice of Laurence FrancozTerminal on this matter). 107 See, Article R225-4 of the Social Welfare and Family Code. 108 See Article R225-7 of the Social Welfare and Family Code. Author acknowledges the advice of Laurence Francoz-Terminal on this matter.

602

13.5.3.4

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Single and Same Sex Adopters

Adoption applications may be made by single persons aged 28 or older; indeed, such applications are the only type permitted for unmarried couples. The traditional legal constraints in relation to adoption by single applicants and by same sex couples was challenged by the decision of the ECtHR in E.B. v. France109 which determined that the exclusion of individuals from the adoption process simply because of their sexual orientation was discriminatory and in breach of the European Convention of Human Rights (see, further, Sect. 4.4.7.2). This decision laid to rest the degree of uncertainty resulting from the earlier ruling in Fretté v. France110 where the ECtHR had ruled that the exclusion of a gay man from the adoption process, because of his sexual orientation, did not violate the Convention. However, E.B. v. France did not alter the prohibition on same sex adoption in France, as adoption is only available to married couples. What it did do was open more widely the possibility of adoption by a single person over 28 years, by requiring that any consideration regarding sexual orientation is disregarded. This is because the ECtHR, in the latter case, took the view that by interposing a requirement that the applicant should establish the presence of a referent of the other sex among her immediate circle of family and friends, the French authorities had fatally compromised the applicant’s right as a single person to apply for authorization to adopt. Where a gay or lesbian applicant is in fact living with—but not married to—their same sex partner, the adoption is restricted to the applicant and no legal tie will be created at all between the adopted child and the partner.111

13.6 Pre-placement Counselling There is no explicit statutory obligation resting on any specific agency to provide a pre-placement counselling service to the birth parent/s but as a matter of good practice, in relation to domestic proceedings for plenary adoptions, this would be undertaken by the Child Welfare Service. The persons whose consent is required for adoption will invariably be counselled and duly informed of the effects of their consent, in particular they will be advised that a plenary adoption will result in the termination of the legal relationship between the child and his or her family of origin.

109 Application No. 43546/02, 22 January 2008. In the court at first instance, the plaintiff’s adoption

was denied because of an “absence of a paternal presence or involvement and because of the ambiguity of the petitioner’s companion with respect to the adoption procedure.” 110 Application No. 43546/02, 25.01.08. 111 The author is grateful to Laurence Francoz-Terminal for her advice on developments in this area of law.

13.7 Placement Rights and Responsibilities

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13.7 Placement Rights and Responsibilities Once the Assent Committee has formally approved the prospective adopters, the latter are then free to make preliminary arrangements in respect of establishing contact with a child available for adoption. The appropriate agency to make this arrangement will depend upon the status of the prospective adopters as first or third party applicants and whether they propose to pursue a domestic or intercountry adoption.

13.7.1 Authority to Place Before a final adoption order is made, the child is usually placed with his or her prospective third party adopter/s on a trial basis. This is called the placement en vue d’adoption. It cannot occur less than two months after consent has been given for adoption and is only defined as a “placement” in the context of a proposed plenary adoption. If, after the expiry of that period, consent has not been withdrawn, the child concerned may then be placed with a view to adoption.112 Any proceedings to establish filiation or paternity must be taken before the child is placed. Placement of the child in a family with a view to his or her adoption (placement en vue d’adoption) precludes any restitution of the child to the family of origin.113 Where the intending adopter/s are related to the child and the latter is at least 2 years of age, then application to the court usually follows directly after acquiring parental consent (i.e. without an intervening supervised placement).114

13.7.1.1

Placement by Birth Parent

The adoption process in France prohibits a birth parent from making, or arranging for others to make, an adoption placement of their child—if under two years of age— with a person chosen by the parent.115 The parent/s role is restricted to relinquishing their child to an approved adoption agency which will then take full responsibility for placement selection. This procedure is intended to prevent undue pressure being placed on the birth parents, or indeed on the prospective adopters.

13.7.1.2

Consent

The consent to place for adoption a child who is the subject of an ‘accouchement sous X’ process is given in effect by the appropriate state authority. Such a placement, 112 Articles

348-3 of the French Civil Code. 352 of the French Civil Code. 114 Article 347 of the French Civil Code. 115 Civil code, Article 348-5. 113 Article

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by virtue of the provisions of Article 352 of the Civil Code, constitutes a bar not only to the return of the child to the mother but also to any declaration of filiation or recognition.116

13.7.2 Placement Supervision From the time of arrival of a child in their new family until the adoption order is granted, the placement is monitored. The welfare interests and health of wards of the state remain the responsibility of the adoption service of the Child Welfare Service until the court decision alters their legal status. The 2005 statute strengthened the requirement to safeguard the welfare of the child and assess the progress of the placement: there is now a mandatory post-placement assessment and support process to be undertaken by either the Adoption service of the Child Welfare service or by the French Adoption Agency (Agence française de l’adoption).117 In the case of an intercountry placement, if requested by the country of origin or by the adopters, the child placed may also be monitored by the Service or by the organization that arranged the placement of a child born abroad.

13.8 The Hearing A formal judicial hearing of the application marks the final stage in the French adoption process. This is necessary whether the applicants are seeking a simple or plenary adoption order. Application to the District Court The applicant must bring his request for an adoption order to the District Court of the district in which he resides. Such request can be brought as soon as the child subject to adoption is placed with the applicant. However, if the request is for plenary adoption the Court can examine the request only after the expiry of a six-month period in which the child is placed with the applicant.118 116 However, note the view of Laurence Francoz-Terminal: “The 2 months period under challenge in

K. v. France was not the 2 months period regarding consent to adoption according 348-3 of the Civil Code. The 2 months period under challenge was the delay that precludes an anonymous mother from claiming the child back in order to establish the filiation of the child in accordance with Art. L. 224-6 of the Social Welfare and Families Code. Indeed, the consent to adoption is never required from a woman that has given birth anonymously under the ‘accouchement sous X scheme. From a legal point of view she’s a woman who never gave birth, and so she’s a third party in relation to the child. Since she’s not the mother her consent is not needed to free the child for adoption” (note to author). 117 Statute n° 2005-744 of 4th July 2005. 118 Articles 348-3 of the French Civil Code.

13.8 The Hearing

605

Supporting Documents The legal conditions applying to the applicant and to the adopted child are verified. The validity of the necessary assents is also verified. The court proceeds to a general inquiry and has a power of investigation to assess whether adoption is in the best interests of the child. The Child Welfare Service can provide the court with information acquired during the assessment stage. The Procureur de la Republique can also direct such investigations that she or he thinks may be necessary.

13.8.1 Where Consent Is Available The court must satisfy itself that all required consents have been given, unless grounds exist for consent to be dispensed with. Whether married or unmarried, both parents share equal parental responsibilities for their child and both must consent. When one is dead, unable to give consent, or has lost parental rights, the consent of the other is sufficient. When parentage is established with regard to only one parent, then the consent only of that parent is necessary. When both parents have died without leaving any instructions, or both have lost parental rights, then consent is given by the family council (conseil de famille) after consultation with the person with actual care responsibility for the child. The same procedure applies where the parentage of the child is not established.119 For both simple and plenary adoption the personal consent of the child concerned is also required if he or she is aged 13 years or older120 ; validity is not conditional upon the child having sufficient understanding.121 Consent is given before a notary (notaire), before French consular or diplomatic agents or, most usually, before the ASE.122 The consent of birth parents may be revoked within 2 months123 but no retraction is possible for the child concerned after he or she has given their agreement.

13.8.2 Where Consent Is Not Available Where a child is a ward of the state or is otherwise in the public care system and the parents have not consented to adoption, consent is given by the family council responsible for the child. No consent is needed for the adoption of children whom

119 Articles 120 See,

348, 348-1 and 348-2 of the French Civil Code. Art 348-3 of the French Civil Code as amended by Statute n° 2010-1609 of 22 December

2010. 121 Articles

345 and 360 of the French Civil Code. 348-3 of the French Civil Code. 123 Articles 348-3 of the French Civil Code. See, also, Kearns v. France, op cit. 122 Articles

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the courts declare to have been abandoned.124 The court may grant an adoption order if it determines that consent has been unjustifiably, or abusively, refused by one or both of the birth parents, or if they are disinterested in the child or if they are at risk of endangering the child’s health or morality.125 Except where there exists a bond of relationship by blood or by marriage up to the 6th degree inclusive between the adopter and adoptee, the consent to the adoption of children less than 2 years of age is valid only if the child was actually entrusted to the Child Welfare Service or to an authorised adoption agency.126

13.9 Thresholds for Exiting the Adoption Process In France there is no right to adopt or to be adopted, nor any general right to start a family.127 This gives rise to a cautious judicial approach towards adoption.

13.9.1 The Welfare Interests of the Child An adoption order will only be granted if the District Court considers this to be in the best interests of the child. The Committee on the Rights of the Child has urged France to incorporate the concept of the child as a subject of rights in all policies, programmes and projects.128

13.9.1.1

The Paramountcy Principle

There is no suggestion in the Civil Code or related statutes that the welfare interests of the child concerned are to be accorded a paramount legal weighting in adoption proceedings.

124 Article

381-1 et 381-2 of the French Civil Code. 348-6 of the French Civil Code. 126 Articles 348-5 of the French Civil Code. 127 See, further, Beignier, B., ‘Freedom to Conceive a Child’, Dr. fam. 2004, chron, No 3, at p.4 for an argument that procreation is not merely a right but a freedom. 128 Concluding Observations of the Committee on the Rights of the Child, France, U.N. Doc. CRC/C/15/Add.240 (2004) at para. 5. 125 Articles

13.9 Thresholds for Exiting the Adoption Process

13.9.1.2

607

Voice of the Child

Until recently, if a child requested a hearing, this could only be refused by a decision giving very detailed reasons.129 However, the 5 March 2007 law n° 2007-293, relating to child protection, amended this point. The new Article 388-1 of the Civil Code now states that where a child requests to be heard then this request must be granted.130 The Committee on the Rights of the Child had noted with regret, in its 2004 report, that earlier recommendations made regarding the expression of views by children and the weight to be given such views remained insufficiently unaddressed.131 This has now been rectified. Article 353 of the Civil Code has made it compulsory to ensure that the child is heard in such proceedings.

13.9.2 Representing the Child’s Welfare Interests The welfare interests of a child the subject of adoption proceedings will generally be represented by reports to the court submitted by the Child Welfare Service or authorized adoption agency.

13.10 The Outcome of the Adoption Process The outcome of an adoption application must be decided within 6 months after it is lodged in the court and most usually will take the form of a granting or refusal of an adoption order. However, the court is also entitled to make an order for simple adoption in response to an application for a plenary adoption with the adopter’s consent. The court judgment can be appealed within 15 days of receipt, by the applicant, the Procureur de la Republique, or by any third party who was notified of the decision.

13.10.1 Adoption Order Third party applications, almost invariably consensual, constitute a majority of the total annual adoption orders. Most of such orders relate to intercountry adoptions with many of the remainder being in respect of ‘nés sous le secret’ and wards of the state. The proportion of contested adoption applications concerning children in the public care system is very low. Unlike many common law countries, the law in 129 Article

388-1 of the French Civil Code. author gratefully acknowledges the advice of Laurence Francoz-Terminal on this matter. 131 Op cit, at ‘Introduction’. 130 The

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France has resisted allowing step-parents to use adoption as a means of usurping the legal standing of a birth parent.

13.10.1.1

Type of Order

The adoption order granted may be either ‘simple’ or ‘plenary’. Simple Adoption Order Where the subject is the birth child of a spouse then the other spouse, as applicant, is only eligible for a simple adoption order during the lifetime of their spouse. The order does not terminate the child’s legal ties with their family of origin. Plenary Adoption Order A full or plenary adoption order is the one most usually granted. It may be granted to a birth parent following the death of their unmarried partner, who was the other birth parent of the child concerned, but only if the deceased leaves no first-degree relatives (e.g. grandparents) or if these have clearly taken no interest in the child.132

13.10.2 Alternative Orders There are no alternative statutory orders available to the court and no provisions that specifically address any rights or obligations of the parties concerned to post-adoption contact.

13.11 The Effect of an Adoption Order The effect of an adoption order made in a French court depends entirely on whether it is simple or plenary in nature.

13.11.1 The Child Plenary adoption confers on the child a filiation with their adopters that substitutes for their original filiation. The adopted child assumes the same relationship as a child born to the adopter/s. Any legal bond with the original family is extinguished. The adopted child automatically assumes the nationality of the adopter/s. The child loses

132 Article

345-1 of the French Civil Code.

13.11 The Effect of an Adoption Order

609

all inheritance rights in respect of their birth parents and instead acquires the same such rights in respect of their adopters as a marital child. In a simple adoption, the adopted child becomes a member of his new family but retains some legal bonds with his family of origin and does not automatically acquire the nationality of the adopters. However, the legal barrier preventing marriage between the adopted person and the ascendants or relatives of the adopting person applies.133 Also, the adoptee retains their inheritance rights in relation to their family of origin; the simple adoptee (and their children and stepchildren) can inherit from both families; the adoptee will inherit from the parents of the adoptive parents, unless the latter decide to disinherit them.134 While the adoption gives rise to a maintenance obligation (obligation alimentaire) between the adoptee and adoptive parent, it does not completely extinguish that which lies between the adoptee and their birth parents. If the adoptee dies and leaves successors, rights of inheritance are determined by common law. If not, the inheritance is divided, half going to the birth family and half to the adoptive family. Name In a simple adoption, the child retains the name of his family of origin in addition to that of the adopters, unless it is decided in court that the child will not keep his or her birth name, while in the plenary form the child assumes the family name of the adopters.

13.11.2 The Birth Parent/s The effect of a plenary adoption order is that birth parents lose all parental rights in respect of their child and are freed from all duties. All such rights and duties are transferred to the adopter/s. A simple adoption order does not irrevocably extinguish all legal ties. For example, birth parents remain bound by their duty to maintain the adoptee (the obligation alimentaire) but in practice this can only be activated if the adoptee first establishes that he or she could not obtain such maintenance from their adoptive parents.

13.11.3 The Adopters In simple adoption, the adopters are vested with parental rights and responsibilities including a maintenance obligation (obligation alimentaire) in respect of the adoptee.

133 Article 134 Article

366 of the French Civil Code. 368 of the French Civil Code.

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13.11.4 Dissolution of an Adoption Order Under French law a full or plenary adoption is irrevocable.135 A simple adoption order can be revoked but only in exceptional circumstances and only after a full judicial hearing.136 French law has no particular procedure for the annulment of an adoption, although the decision may be set aside, for example because of a formal defect, which seldom happens.

13.12 Post-adoption Support Services There is a legal responsibility on each departement to make available post-adoption support services for all parties of both domestic and intercountry adoptions. Organisations such as CLSC Plateau Mont Royal offer various post adoption services, free of charge, in the form of group sessions and individual counselling. Adoption Counselling and Advisory Services (COCAs) are available to provide post-adoption support.

13.12.1 Adoption Support Services Statute n° 2005-744 of 4th July 2005 introduced a duty to offer post-adoption support services to assist adopters. Should the adopter/s accept the offer, the responsibility for service provision rests with either the adoption service of the local authority or the Agence Française de l’adoption.

13.13 Information Disclosure, Tracing and Re-unification Services Until the 1960s, an estimated 10,000 babies a year were ‘nés sous le secret’, or born to mothers who had exercised their right to anonymity and left no trace of parental identity on their children’s birth certificates or on any other official records.137 Although the numbers have since decreased appreciably, to reach 664 in 2009, 666 in 2019 and 550 in 2018 such anonymous births have made a significant contribution to third 135 Article

359 of the French Civil Code. 345 of the French Civil Code. 137 The exercise by any woman of this right, which is enshrined in Article 326 of the Civil Code and which the legislature has to date shown no intention of reconsidering, is governed by the provisions of Article L. 222-6 of the Social Action and Families Code, as amended by the Act of 22 January 2002. 136 Article

13.13 Information Disclosure, Tracing and Re-unification Services

611

party adoptions. This has resulted in a situation where an estimated 450,000 people, mainly adoptees, have been deprived of origins information that has been officially edited out by the French state. The legal guarantee of maternal annonymity with the inevitable accompanying identity issues for the children concerned has been a matter of concern to the Committee on the Rights of the Child.138 The Committee noted the introduction of the law adopted on 22 January 2002 relating to the right to know one’s origins, 139 and allowing mothers who have a baby in secret to place their name in a sealed envelope thus leaving open the possibility to decide later in life if they wish to meet their child or not. However, the law does not impose any obligation on such a mother to reveal her identity, even confidentially. A woman who requests, at the time of delivery, that her admission and her identity be kept secret, is encouraged to leave, on a voluntary basis, information on her health and that of the father (if she has any such information), the origins of the child and the circumstances of birth, as well as her identity, in a sealed envelope. In this she can specify her name, her date and place of birth. On the cover of the envelope are written the first names that she may have chosen for the child, as well as its sex, date, hour and place of birth. This envelope is stored and can be unsealed only by a member of CNAOP if solicited by the child or by his or her legal representative. In that event, CNAOP can then initiate a search for the mother and contact her. If contacted, she can then elect to either maintain or waive her anonymity. In fact the mother can at any time waive the secret of her identity, but she does not have the right to search for the child.

13.13.1 Information Disclosure The limited factual information recorded on an adoptee’s original birth certificate, the process for gaining access to it and the extent of information required to be kept on agency files, combine to make it difficult for an adoptee or birth parent to obtain a full factual picture of the adoption to which they were parties. However, the general rule is that an adopted child has a right of access to all the documents in his or her administrative file, upon request if the child is of age, otherwise via his or 138 See, UN Committee on the Rights of the Child (51st session, 2009) when following its consider-

ation of the third and fourth combined periodic report of France, the Committee expressed concern that a mother giving her child up for adoption, if she wished, could conceal her identity and oppose the right of the child to know his or her origins, depriving the child of a part of his or her rights. The Committee reiterated its previous recommendation that France take all appropriate measures to fully enforce the child’s right to know his or her biological parents and siblings, as enshrined in Article 7 of the Convention. 139 In its 2004 report, the Committee on the Rights of the Child notes (CRC/C/15/Add.240 30 June 2004) that the concerns and recommendations (CRC/C/15/Add.20) it made upon consideration of the State party’s initial report (CRC/C/3/Add.15) in respect of the right to know one’s origin (para. 14), remain insufficiently addressed.

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her legal representative. An adoptees may access their records at the public social welfare services (Aide sociale à l’enfance) and at the adoption agencies: though those who were children nés sous le secret or abandoned will clearly have great difficulty in finding identifying information. Children whose identity was known before adoption can access that information in the court orders (and this is valid for domestic and intercountry adoption). In 2009, the Committee on the Rights of the Child “reiterated its previous recommendation that France take all appropriate measures to fully enforce the child’s right to know his or her biological parents and siblings, as enshrined in Article 7 of the Convention”.140 Rights of access to information are dependent upon the type of adoption order granted. Plenary Adoption In a full or ‘plenary’ adoption, the provisions governing access to public records give adopted and adopting persons access to official documents (full copies of birth certificates) that mention the fact of adoption. Where the identity of the child was known when the adoption order was issued, the order will record the birth name even if it is a plenary adoption. Where the identity was not known, then a copy of the adoption order will be available but the identification details will relate only to the adopter/s. Simple Adoption In simple adoption, the child concerned and other parties to the adoption have rights of access to relevant official documents (e.g. full copies of birth certificates) on which the identity of the birth parent/s may be recorded, as the original birth certificate will not have been annulled. Additionally, the birth certificate will record the fact of adoption and the identity of the adopter/s. However, persons with no legitimate interest do not have access to documents mentioning adoption (plenary or simple) nor to the identity of the birth parents.

13.13.2 Registers There are no adoption registers as such in France. The registrars’ office (bureau de l’état civil) in the local town hall, which maintains registers of birth, marriage and deaths (naissances, mariages, décès), will include a record of adoptions registered with it. These records will typically provide the place, date and time of registration; the date and place of birth; the child’s surname and forenames, the parents’ names (with mother’s maiden name), and the names, ages, and professions of witnesses 140 See, further, Committee on Rights of the Child, Concluding Remarks of its fifty-first session, at:

http://reliefweb.int/report/mauritania/committee-rights-child-concludes-fifty-first-session.

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(where appropriate). A duplicate of these records is held in the Archives Départementales which provides a centralised nationwide system of record keeping for all citizens.

13.13.3 Conditional Access The identity of birth parents will not be disclosed to an adoptee if the parents formally requested confidentiality at the time of the birth and have not officially retracted that request. This entrenched right of parental veto, endorsed by the decision in Odièvre v. France141 has strongly differentiated French law from that of the U.K. and most of Europe. The Committee on the Rights of the Child, in its 2004 report, remained concerned that the rights enumerated in Article 7 of the Convention may not be fully respected by the State party and that the right of the mother to conceal the identity, if she so wishes, is not in conformity with the provisions of the Convention. It noted with regret in its 2004 report that its earlier recommendations regarding the right to know one’s origins (para 14) remain unaddressed.

13.13.4 Tracing and Re-unification Services Legislation passed in 2002 put in place a national government body with the power to determine requests from adopted children and their birth parents for identifying information and to assist those seeking to trace birth relatives. This legislation, may well provide the means for an applicant to contact his or her birth mother. Consequently, the practical value and relevance of the Odièvre judgment is now questionable. The absence of any unconditional right of access to identifying information regarding family of origin, has so far obviated the need for contact registers etc.

13.14 Conclusion France belongs to the civil law tradition. Adoption, here, reflects the principles that currently hold the balance in French family law, some of which are being tested by the ECtHR, and is set within the distinctively egalitarian culture of this nation. The consensually based and judicial nature of the French adoption process has some characteristics that distinguish it from its counterpart in common law and other jurisdictions. For example, the concept of anonymous births, known as ‘accouchement 141 [2003]

1 FCR 621.

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sous le secret’, is relatively rare throughout the jurisdictions studied. The fact that the consent of a child older than 13 is a pre-requisite for his or her adoption is also atypical as is the lack of any upper age limit on prospective adopters. In the context of an unusually high rate of child abuse, a high level of children in public care and the highest total of young children under three in institutional care in the E.U., the low rate of consensual adoption from the public child care system is very evident. This has to be contrasted with the fact that the annual ICA rate in France is among highest in the world. Of particular interest is the distinction made in French adoption law between plenary and simple adoptions. The traditional form, third party adoption of a child whether in a domestic or intercountry context, constitutes a majority of the total annual adoption orders and invariably warrants a plenary order with all the absolute vesting and divesting of rights normally associated with a full order in a common law jurisdiction. On the other hand, step-adopters are marked out as requiring a much lesser form of adoption by being restricted to a simple order which leaves clear legal ties between adoptee and their family of origin. This two-tiered system allows for meaningful distinctions to be drawn in the social roles available to adoption in France. In some ways, this jurisdiction with its international reputation for pushing the boundaries of social convention, is remarkably conservative in relation to adoption issues.

Chapter 14

Germany

14.1 Introduction The Federal Republic of Germany (Bundesrepublik Deutschland), a civil law jurisdiction with a population of some 81.5 million,1 is the most populous member state in the European Union. Re-unified in 1990, its 16 partly autonomous states (Länder), each with a degree of independent legislature on specific matters, are legally bound by a federal Constitution and by the rulings of its Constitutional Court. Family law, including provisions governing adoption, is to be found in the Civil Code which incorporates adoption specific legislation and related amendments. This chapter begins by examining the background social factors that have shaped the modern adoption process. It identifies and assesses the more prominent trends and the resulting emerging characteristics of current adoption practice. It then details the legislative framework for adoption, on both a domestic and intercountry basis, giving consideration to the policy and principles that have informed statute law. As in other jurisdiction specific chapters, this leads into the application of a template of legal functions (see, further, Chap. 3) to outline the German adoption process, explain the role of its regulatory bodies and adoption agencies, and to track the path taken by the parties through the sequence of stages that ends with the making of an adoption order. The chapter then considers the availability of post-adoption support services, information disclosure rights and arrangements for tracing and reunification. It concludes by reflecting on the more distinctive hallmarks of contemporary adoption law and practice in Germany.

1 See,

German Federal Statistic Office: https://www.destatis.de/.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_14

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The author has been greatly assisted by advice from Professor Dr. Jörg Reinhardt and by information to be found in both the overview of German adoption law published by the Centre for Adoption Policy,2 and the Internal and Intercountry Adoption Laws published by the International Social Services.3

14.2 Background Adoption in Germany has taken some time to overcome the distortions in its social role resulting from the impact of two world wars and the racially driven ideology of the Third Reich and the Socialist period in Eastern Germany from 1949. This historical background has been well documented and analysed by academics.4

14.2.1 The Social Context Giving Rise to Adoption In recent years, the usual factors—including rates of non-marital births, marriage breakdown, abortion and child care admissions—have influenced the domestic availability of children. In Germany, though to a markedly lesser extent than other countries in Western Europe, domestic sources have been supplemented by recourse to other countries, but this has been decreasing. Another singular feature distinguishing Germany from its western neighbours is the influx of migrants in recent years. In 2015 alone, the child protection services in Germany took custody of over 42,300 unaccompanied refugee children.5 How many such children ultimately enter the adoption process is unknown.

14.2.1.1

Marriage and Family Breakdown

As elsewhere in Europe and among the developed nations more generally, the marriage rate in Germany is in decline: from 8.2 (per 1000 of the population aged 15–64 years) in 1990, 7.6 in 2000 and reaching 6.9 in 2008.6 As marriage rates declined, the frequency of divorce increased. Divorce rates increased from 2.5 (per

2 See, ‘Overview of German Adoption Law’, at: http://www.adoptionpolicy.org/pdf/eu-germany. pdf. 3 See, Frank, R., ‘Germany’, in International Social Services, Internal and Intercountry Adoption Laws, Kluwer Law International, The Hague, 1996 pp. 1–50. 4 For a brief historical overview see, for example, Bosch, Entwicklungen und Probleme des Adoptionsrechts in der Bundesrepublik Deutschland, Zeitschrift fur das gesamte Familienerecht,1984. 5 See, further, the Federal Statistics Office of Germany. 6 See, https://www.destatis.de/.

14.2 Background

617

1000 of the pop aged 15–64 years) in 1990 to 3.5 in 2008,7 rising slightly further from 4.8 to 5.4 in the period 2014–2020. Since the mid-1990s, the proportion of adults opting for non-marital partnerships has grown rapidly. However, the fact that the 2012 report published by the Organisation for Economic Co-operation and Development (OECD) showed 82% of all German children living at home with both parents (as opposed to 68.9% in the U.K.) indicates a greater level of family stability in Germany than in many of the 30 countries it surveyed.8

14.2.1.2

Unmarried Mothers

Germany, in keeping with most other developed nations (Japan being a notable exception) has experienced a rising number of ‘out-of-wedlock’ births. In the early 1990s, polls indicated that 60% of German sixteen-year-olds were sexually active, compared with 15% in the 1950s. In 1990, the estimated rate of births to unmarried women was 15.1% of all live births, increasing to 32.1 in 2008.9 As such births provide the main source of children for domestic adoption by non-relatives, the rise is significant but it remains lower than in other developed nations such as the U.K. and the U.S. Significant, also, and for the same reason, is the provision of designated safe refuges where mothers can relinquish their babies, safely and with “preliminary” anonymity (Vertrauliche Geburt) has been legalised in Germany in since 2014 following criticism of the earlier practice of total anonymous birth.10

14.2.1.3

Abortion

In 2010, the German abortion rate was 6.1 abortions per 1000 women aged 15– 44 years.11 This is one of the lowest abortion rates in the western world (about onethird that of the U.S.) and yet Germany’s abortion laws are not especially restrictive: it is legal during the first trimester of pregnancy and is available after counselling if medically or psychologically necessary in the later trimesters. Again, the correlation between rates of abortion and adoption would suggest that if the former is falling then this might be conducive to a rise in the latter.

7 See, U.S. Bureau of Labor Statistics at: http://www.census.gov/compendia/statab/2011/tables/11s

1335.pdf. 8 See, further, at: http://www.huffingtonpost.co.uk/2012/12/29/uk-family-breakdown-rate-_n_2379

845.html?view=print. 9 Ibid. 10 UN

Committee on the Rights of the Child (CRC), 25 February 2014, op cit at para 31. U.N. Dept of Economic and Social Affairs, World Abortion Policies 2013, at: http://www. un.org/en/development/desa/population/publications/policy/world-abortion-policies-2013.shtml. 11 See,

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Assisted Reproduction Services

In 2019 the population of Germany was estimated at 81.5 million. Although currently the most populous country in the European Union, its birth rate is one of the lowest in the world.12 Indeed, Germany currently has the lowest percentage of family households with children in the entire EU. However, despite its demographic challenges, German ART services are regulated by some of the most restrictive legislation in the western world.13 It is probable that, as Robertson has suggested, “Germany’s history of science and human rights abuse, however, has made it hostile to technological and genetic control of reproduction”.14 Consequently, the position now in Germany is that children are a much sought after scarce resource. This provides a context in which adoption assumes considerable importance. Surrogacy Surrogacy in Germany is governed by very restrictive legislation. The law for the protection of embryos (Embryonenschutzgesetz) prohibits egg-donation and other forms of embryo manipulation or transfer. It provides that no medical practitioner should perform artificial insemination or embryo donation on a woman, who is willing to hand the child over to commissioning parents upon birth in accordance with a surrogacy agreement. Non-compliance is a criminal offence. Moreover, s 13 b of the amended Adoption Intermediation Act (Adoptionsvermittlungsgesetz) states that no person should bring together a surrogate with prospective commissioning parents or vice versa and s 13 d prohibits commercials or announcements which seek to bring together such persons. Non-compliance is again a criminal offence. To make a human being the subject of a contract is impermissible under German law: the mother of a child is the woman who gave birth to that child.15 Therefore only the surrogate is recognised as the child’s mother. In March 2012, for example, a German couple, decided to use the services of Ukrainian surrogate mother, who carried the child conceived by them. But after the birth German embassy in Kiev refused to give the child a passport, citing the child had no German citizenship. In German law, the mother was the Ukrainian surrogate and the father was considered to be the Ukrainian mother’s husband.16

12 The population is in negative growth as birth rates range from about 8.7 births per 1000 people to about 9.8 while the death rates range from about 11.6 deaths per 1000 people to about 15.8. 13 See, further, Robertson, J.A., ‘Reproductive Technology in Germany and the United States: An Essay in Comparative Law and Bioethics’, Columbia Journl of Transnational Law, 2004, pp. 189– 227. 14 Ibid., at p. 192. 15 Civil Code, s 1591. 16 See, decision of the Administrative Court of Berlin, September 10, 2012, at: http://www.ukrain iansurrogates.com/surrogacy-ban-in-germany.

14.2 Background

14.2.1.5

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Increase of Children in Public Care

State intervention in family affairs is authorized by the Child and Youth Services Act, incorporated as the 8th Book in the Social Code, and by s 1666 of the Civil Code, but is approached with extreme caution. As Schweppe has explained,17 the law provides that infringement of parental custody should never go beyond that which is necessary in the best interests of the child—Grundsatz der Verhältnismäßigkeit (the principle of reasonableness).18 Taking a child into care and the withdrawal of parental responsibility is regarded as an extreme measure to be exercised when a child is clearly in need of protection (Kindeswohlgefährdung). In such circumstances the Youth Welfare Offices have statutory powers to remove children as a preliminary protective measure before the court rules on whether to impose restrictions on parental rights.19 The Civil Code provides that, where the welfare of a child has been placed at risk, the Family Court may restrict or withdraw parental responsibility if this is necessary to protect the child’s welfare.20 In such cases the court has to appoint a curator (Ergänzungspfleger) where specific aspects of parental custody are restricted: a curator may, for example, have the right to determine the child’s place of residence or the necessary medical treatment. In cases where there has been a complete withdrawal of parental responsibility, the court has to appoint a guardian (Vormund). This will happen most obviously where the child has been abandoned or in severe cases of child neglect or abuse.21 As a rule, an individual person should be appointed as guardian, but the court may appoint a Verein (private association) or the local Youth Welfare Office (Jugendamt) in cases where no individual person is available.22 Most often guardianship is now administered by the local Youth Welfare Office. National German statistics for the year 1999 show that such authorities were appointed to be guardian or curator in 80% of the court proceedings involving the (partial) withdrawal of custodial rights. The children found by the court to have been failed by parental care are then placed in foster homes, with other relatives, or in residential care.

17 See, Schweppe, K. , ‘Child Protection in Europe: Different Systems – Common Challenges’, German Law Journal. 18 The Civil Code, s 1666a. 19 See, Inobhutnahme, s 42 Social Code VIII. 20 The Civil Code, s 1666. This provides that, where the physical, mental or emotional welfare of a child is placed at risk by neglect or mistreatment of the child or because parents otherwise fail to comply with their parental duties, the Family Court shall order the measures necessary to protect the child when voluntary measures have been insufficient to protect the child’s welfare. 21 The Civil Code, s 1773. 22 The Civil Code, s 1791a and 1791b.

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Unlike other countries such as the UK and the US the increase in the care population does not seem to trigger policy debates in Germany leading to law reforms that might enable the adoption option to be available to a greater proportion of that population.23 Foster Care In 2017 there were approximately 91,000 children formally placed in full-time foster care (0.3% of the under 18 population) with numbers constantly rising (e.g. in 2005 there were 50,364 children and young people in family foster care and in 2015 there were 71,50124 ). The current regulatory regime for foster care, as noted by Wolf, is unsatisfactory25 : In Germany, there are no universally recognized standards for foster care services. For this reason, local agencies vary considerably in terms of their principles, operation and staffing … no government agency exists that could establish let alone implement, standards.

Residential Care The proportion of the child care population consigned to residential care has always been relatively high (e.g. in 1998 82% of ‘looked after’ children living away from home were in foster care in England in contrast with 39% in Germany26 ). In 2005, for example, there were some 61,806 children in residential homes, 81,310 in 2015 and approximately 100.000 in 2017; considerably more than in foster care.27 A report published in 2010 estimated that between 1949 and 1975 up to 800,000 children and youths lived in foster care in West Germany, two-thirds in church-run homes, where some 30,000 were found to have suffered rampant physical, emotional and sexual abuse.28 Kinship In Germany, the preferred foster care placement is with a relative. Of the total foster care population in 2005, approximately 60% of the children were in kinship placements.29 23 Bach, R., Von Kindeswohl und Kinderwunsch, Bad Boll 2011However, see Botthof, A., Die Annahme als Kind als Alternative zur Dauerfplege, FamRZ (Zeitschrift für das gesamte Familienrecht) 2016, pp. 768–773. Also, see, further, at: https://www.dji.de/ueber-uns/projekte/projekte/exp ertise-und-forschungszentrum-adoption-efza.html. 24 See, further, at f/n 14. 25 See, Wolf, K. , ‘Promoting the positive development of foster children: Establishing research in Germany’, Adoption & Fostering, Vol 36, Issue 1, 2012, pp. 40–51, at p. 41. 26 See, White, K.J., ‘The Ideology of Residential Care and Fostering: Re-framing Children’s Services’, NCVCCO Annual Review Journal No. 3, 2002 at pp. 231–242. 27 See, ‘Foster Care Research in Germany: A Critical Review’, at: http://www.thefreelibrary.com/ Foster+care+research+in+Germany%3a+a+critical+review.-a0202649731. 28 See, Abschlussbericht des Runden Tisches “Heimerziehung in den 50er und 60er Jahren” at: http://www.rundertisch-heimerziehung.de/documents/Abschlussbericht_rth-1.pdf. 29 See, Walter and Blandow, 2004.

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14.2.2 Resulting Trends in Types of Adoption In Germany the upper age limit for the adoption of minors is 18, though adults can also be adopted.30 The annual statistics show a steady decrease in annual adoption orders: from 8687 in 1993, to 5909 in 2001, 4060 in 2011, to 3812 in 2015 and down to 3733 in 2018. In particular, there is virtually no reliance upon intercountry adoption. Given the demographic challenges it faces, it seems remarkable that Germany has such a low annual adoption rate compared with all western European countries and others.31

14.2.2.1

Third Party Adoptions

Third party adoptions in Germany peaked at 7669 in 1978, falling to 4008 in 1986.32 In 2018, 1330 children were adopted by unrelated persons.33 The domestic adoption of children by non-relatives continues to fall. Domestic Domestic adoptions predominate in Germany. The annual statistics show a heavy weighting favouring domestic over intercountry adoption, though the former are gradually shrinking: in 1999, of the total of 6399 adoptions, 5605 were domestic; in 2000, the figures were 6373 and 5495; in 2001, 5909 and 5056; in 2002, 5668 and 4708; 2003, 5336 and 4584; and by 2015 they were 4013 and 3812. The domestic adoption of children in Germany is one of the three highest in Europe (accompanied by the UK and Poland)34 but adoption by non-relatives continues to fall: peaking at 7669 in 1978, falling to 4008 in 1986, to 1448 in 2013 and reaching 1362 in 2015.35 However, if adoptions by step-parents and relatives were deducted, the annual rate of traditional third party adoptions by ‘strangers’ of children born within the jurisdiction would be seen to be in steep decline. This is borne out by the statistics for 2018 which reveal that more than half of the total (2283 or 61%) were adopted

30 Civil

Code, s 1743. further, at: http://www.hcch.net/upload/adostats_za.pdf. 32 See, Linder, 1987. 33 See, further, at: https://www.destatis.de/EN/FactsFigures/SocietyState/SocialStatistics/Social Benefits/PublicChildrenYouthWelfare/Adoptions.html. 34 http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/583860/EPRS_BRI(2016)583860_ EN.pdf. 35 See, further, at: https://www.destatis.de/EN/FactsFigures/SocietyState/SocialStatistics/Social Benefits/PublicChildrenYouthWelfare/Adoptions.html. 31 See,

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by a step-parent (i.e. by a new partner of the biological parent) 120 children (3%) were adopted by relatives.36 Child Care In Germany, as adoption is essentially a consensual process, there are very few adoptions of children—about 5%—from the care system where the need for parental consent has been judicially removed. According to the German Association for Child Protection in 2010, the number of children entering the public care system increased by 81% in the previous 4 years37 but in that year only 250 left it by way of nonconsensual adoption. There is no policy, established practice, or seemingly any exact statistical data, relating to the adoption of children from the care system in Germany. The local Youth Welfare Office is required to consider whether adoption from care placements is legally possible but this rarely leads to adoption.38 Intercountry As with so many other strands of contemporary social life in Germany, intercountry adoption is mired by a distorted interpretation imposed during the Third Reich. This was an aberrant period of eugenic experimentation which included the enforced removal of many infants with Aryan characteristics from birth parents, in Scandinavia and other subjugated countries, for adoption by German citizens.39 In Poland alone, an estimated 200,000 children with Aryan traits were forcibly removed from their families and given to German or Austrian couples. As Textor points out, this was followed in post-war Germany by a policy reversal which, in a context of massive destruction and poverty, saw the country become an exporter of children as “the number of children adopted by foreigners increased from 489 in 1950 to a peak of 2628 in 1957”.40 By the early 1990s, as he goes on to demonstrate, the position was reversed yet again as “slightly more than 1000 ICAs take place in the Federal Republic of Germany each year”.41 Contemporary practice, some two decades later, has seen a considerable drop in annual intercountry adoptions. In 2004, for example, there were a total of 475 such adoptions: 163 from Hague compliant countries; and 312 from non-Hague (of which almost half were from Russia).42 Terre des Hommes 36 Author acknowledges with thanks the advice of Nina Dethloff on this matter (note to author, 9.10.2014). See, further, at: https://www.destatis.de/EN/FactsFigures/SocietyState/SocialStatistics/ SocialBenefits/PublicChildrenYouthWelfare/Adoptions.html. 37 See, further, at: http://www.dw.de/new-child-protection-law-aims-to-strengthen-families-ratherthan-divide-them/a-6329547. 38 The Social Code VIII, s 36, para 1. 39 See, for example, Nichol, B., The Hunt for Lost Blood: Nazi Germanization Policy in Occupied Europe, Doctoral thesis, University of Tennessee (2016), at: https://trace.tennessee.edu/cgi/viewco ntent.cgi?article=5190&context=utk_graddiss. 40 See, Textor, M.R., ‘International Adoption in West Germany: A Private Affair’, in Alstein, H. and Simon, R. (eds), Intercountry Adoption: A Multinational Perspective, Greenwood Publishing Group, 1991, at p. 109. 41 Ibid., at p. 111. 42 See, Annual Adoption Statistics for Receiving States: Germany, 2005, at: http://www.hcch.net/ upload/adostats_de.pdf.

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estimates that between 2000 and 2005 there was a decrease in annual intercountry adoptions from 878 to 547.43 By 2015 they had fallen to 201 and down even further to 129 in 2018. Transracial Perhaps particularly in western Europe, there is a strong correlation between transracial and intercountry adoptions. As a consequence of Germany’s relatively low and falling annual rate of intercountry adoption, its experience of transracial adoption is also correspondingly lower than that of other developed nations. In this context, it is relevant to note that German intercountry adoption—against the trend in other western nations—does not seem to include any adoptions from China.

14.2.2.2

First Party Adoptions

Adoptions by a parent, step-parent or close relative constitute the majority of all adoptions in Germany. As Reinhardt notes “Generally speaking we have about 55% stepchildren-adoptions and 4–5% kinship adoptions per year. Only about 40% are ‘out-of-family’ adopters”.44 In Germany by far the majority of all children entering the adoption process are known to, if not related to, their adopters and are remaining within their home and framework of relationships. The customary queries regarding the tendency of this use of adoption to distort family relationships therefore applies with greater force than usual. The risk of an adoptee not having an opportunity to develop a fully informed independent identity is similarly accentuated. Step-Parents Step-parent adoption is by far the single largest category of German adoptions. In 2009, for example, of the almost 4000 adoption orders made, about half were in favour of step-parents, by 2013 the proportion had risen to almost 60% and in 2018 of the 37,733 adoptions a total of 2283 or 61% were granted to step-parents. Because such a high proportion of German adoptions are step-adoptions, often following the re-marriage of a parent and involving the children of their previous marital family, and the number of child care and intercountry adoptions are relatively low, so the proportion of marital children adopted is particularly high in this country and they tend to be older than adoptees in other countries. The law in Germany vests total custody in the mother of a child born to an unmarried couple unless both parents agree to share custody.45 Nevertheless, in the event of her marriage to someone other than the child’s father, the latter’s consent is

43 See, Lammerant, I. and Hofsetter, M. (eds) Adoption: at what cost?, Terre des Hommes, Lausanne,

Switzerland, 2007, at p. 23. to author: 15.04.202. 45 But see, Zaunegger v. Germany (Application no. 22028/04), IHRL 3698 (ECHR 2009). 44 Note

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still required unless he is unknown or is not recorded as the father or if he is known but claims not to be the father.46 Kinship Evidence of a preponderance of kinship adoptions can be found in the statistical differentiation made between pre-adoption locations of the children concerned. In 1999, for example, there were a total of 6399 adoptions of which 4406 involved children located in their family of origin when adopted. In 2000, the figures were respectively 6373 and 4337; in 2001, 5909 and 4002; in 2002, 5668 and 3778; in 2003, 5336 and 3594; and in 2018, 37,733 and 120. While, clearly, the majority of these were step-adoptions, that still leaves a considerable proportion being adopted by relatives.

14.3 Overview of Principles, Policy and Law Adoption was initially legalised by incorporating provisions into the Civil Code on 18th August 1896 and took effect on 1st January 1900. There was a major reform of the law relating to children in 1976.

14.3.1 Adoption Principles and Policy As a signatory of all main international instruments, the different jurisdictions of this federated state are required to ensure that the overarching principles and policy of the law relating to adoption is at least compliant with the provisions of the UN CRC, the ICCPR and other such treaties, conventions and protocols.

14.3.1.1

Principles

The principles governing adoption are essentially those underpinning family law and are drawn from the Constitution and the Civil Code, as updated in the reforms of 1976 and 1998. The Interests of the Child Article 6 of the German Constitution provides at least the same level of rights recognition for children as the Convention on the Rights of the Child. The basic principle that adoption should serve the best interests of the child is stated in the Civil Code.47

46 Author 47 Civil

acknowledges advice from Jörg Reinhardt on this matter (note to author: 15.04.202). Code, s 1741, para 1.

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However, the CRC noted with concern that this principle had not been fully incorporated into federal legislation and the prioritization of the child’s best interests was not yet integrated into all areas of the legislative, executive and judicial branches of government.48 Openness The traditional approach of secrecy and anonymity for all parties is provided by the Civil Code: no information regarding the identity of the adoptee, the fact of their being subject to an adoption process or of an eventual adoption order may be disclosed; any breach may result in judicial penalties.49 Indeed, barring certain exceptional circumstances, enquiries from official or private sources to a family seeking confirmation that a child has been adopted are explicitly prohibited and it has been established that it is permissible for the parties concerned to deny the fact of adoption.50 However, in practice open adoption is accommodated, subject to the consent of all parties. The adoption agencies are obliged by the law (Adoption Intermediation Act, ss 8a and 8b) to establish post-adoption exchange of information and personal contact in any form. They also have to facilitate any level of contact between the biological parent and the child throughout the latter’s life. Moreover, adoption agencies are obliged to encourage adopters to advise adoptees from an early age about the fact of their adoption and of their right to access adoption files.51

14.3.1.2

Policy

There would not seem to be any adoption specific policy formulation that presents a coherent overview of federal government strategy, objectives and public service responsibility in relation to the various strands of adoption practice (including child care and surrogacy). Nor is there any known history of such policy initiatives.

14.3.1.3

Adoption Alternatives: Long Term Fostering and Private Family Orders

Long-term foster care has become the default legal framework for those children in the public care system due to parental absence, failure to protect or failure to provide adequate care. Guardianship and custody orders provide alternatives to adoption for some in certain circumstances. There are no legal orders, let alone a continuum 48 UN Committee on the Rights of the Child (CRC), Concluding observations on the combined third and fourth periodic reports of Germany, 25 February 2014, CRC/C/DEU/CO/3-4, at para 26, available at: http://www.refworld.org/docid/52f8a2074.html [accessed 19 August 2017]. 49 Civil Code, s 1758. 50 See, Munchener Kommentar zum Burgerlichen Gesetzburch, Band 8, Familienrecht II, § 1758, No 6. 51 Adoption Intermediation Act, ss 8a, 8b and 9.

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of private family orders, designed specifically to offer options for vesting varying aspects of parental responsibilities.

14.3.2 Contemporary Adoption Related Legislation The provisions for adoption in the Civil Code (updated by the family law reform 1998) together with the Adoption Intermediation Act 1976 (amended in 2002 and 2020) provide the main legal framework for adoption in Germany. Other legislation with a bearing on adoption concerns the court procedures in relation to adoption issues, intercountry adoptions and the recognition of foreign adoptions in Germany. The Civil Code (Gesetzbuch) This provides the basic, over-arching, federal civil law framework, within which family law provisions address child care and adoption. Provisions relating to child care are to be found in ss 1626–1698b and address such matters as: the parental duties of care and protection; the suspension or removal of parental rights; and the appointment and duties of a guardian or curator. Provisions relating to the adoption of minors are to be found in ss 1741–1766 and deal with issues such as: consent; eligibility to adopt; the effect of an adoption order; and the cancellation of an adoption. The adoption of adults is addressed more briefly in ss 1767–1772. The Procedure in Family Matters Act 2009 This legislation provides for the Family Court to have jurisdiction for adoption matters52 ; it also contains provisions for court proceedings in adoption cases. The Adoption Intermediation Act 1976 This legislation, as amended in 2002 and 2020 is part of the Social Code and addresses all aspects of arrangements to be made in relation to child adoption beginning with counselling of the parties involved, examination of adoption applicants, placement decision and post-adoptive care and counselling. It also states the legal requirements relating to matters such as: the functions of adoption agencies, their accreditation and the role of professional staff; prohibitions regarding advertising and solicitation; adoption support services; and notification duties. The Child and Youth Services Act 1991 The Child and Youth Services Act (Kinder und Jugendhilfegesetz) is incorporated into the 8th Book of the Social Code. Sections 11–42 govern the service provision duties of the local Youth Services Welfare Offices which support vulnerable families, protect children and provide care arrangements for those children who cannot remain in their family home. According to a decision of the Constitutional Court adoption should be preferred to foster care. Nonetheless, child care adoptions are rare in Germany due to the importance attached to parental rights. 52 The

Procedure in Family Matters Act, 2009, s 1, 111 No.4, 186ff.

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627

Section 51 specifically addresses the duty to provide counselling, guidance and support to birth parents and to children engaged in adoption proceedings by the local Youth Welfare Offices. The Parentage Law Reform Act 1997 One consequence of this statute, which came into effect on 1st July 1998, was to give adopted children the same legal status as birth children in relation to their respective parents. Primarily, however, the Act strengthened the legal position of the father of a non-marital child by requiring the consent of both birth parents for the relinquishment of their child for adoption.53 The Guardianship Act 1997 A unifying theme of family law reform in the late 1990s was the need to establish legal equality for marital and non-marital children. As Frank has explained, the statute, which came into effect on 1st July 1998, “sets out the extent of the parents’ right to custody of an illegitimate child”.54 As he points out, that law was highly controversial because of “the danger that the mother could conceivably choose not to reveal the identity of the father”.55 This would effectively allow her to prevent the father from seeking any rights in relation to their child and give her exclusive discretion to relinquish the child for adoption.

14.3.3 International Law Germany ratified the International Covenant on Civil and Political Rights of 1966 in 1973, with effect from 1976, and the Convention on the Rights of the Child in February 1992. U.N. declarations and resolutions—including the U.N. Universal Declaration on Human Rights—are assumed to be binding on the basis of Article 25 of the U.N. Charter. Germany ratified the revised European Convention on the Adoption of Children in 2015 and the Hague Convention in 2002 (see, further, Sect. 4.4). It has implemented the Hague Convention by way of the Adoption Intermediation Act and two separate statutes: the Adoption Convention Implementation Act which concerns intercountry adoption placements and co-operation between national Central Authorities; and the Effects of Foreign Adoption Act which regulates the recognition of foreign adoption orders.

53 The

Parentage Law Reform Act 1997, s 1747 1. Frank., R., ‘Germany: Parentage Law Reformed’, in Bainham, A. (ed), The International Survey of Family Law, Martinus Nijhoff, The Hague, 1997, pp. 167–182, at p. 167. 55 Ibid., at p. 168. 54 See,

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14.4 Regulating the Adoption Process The statutory adoption process in Germany is federally regulated by ss 1741–1772 of the German Civil Code (Bürgerliches Gesetzbuch).

14.4.1 Length and Breadth of the Process The German process accommodates the adoption of both adults and children and while the outcomes differ, in terms of ‘simple’ and ‘full’ orders respectively, the actual process is much the same. The length and breadth of the process conforms in most respects with that of other developed western nations, including the postadoption phase with service provision relating to information disclosure, tracing and re-unification. There is a legal assumption that the process is one that extends for the duration of the adoptee’s life (see, further below, at Sect. 14.11).

14.4.2 Role of Adoption Agencies and Other Administrative Bodies As regards intercountry adoptions, the Federal Prosecutor General acts as the designated national Central Authority (Bundeszentralstelle für Auslandadoption) for the purposes of the Hague Convention while each of the 16 German states have established their own or joint Central Authorities to process intercountry adoptions.56

14.4.2.1

Adoption Agencies

Adoption is viewed as a public service and therefore all adoption agencies are either Youth Welfare Offices or Central Adoption Authorities of the states (Länder); and some are state ‘accredited bodies’ and regulated accordingly. Those engaged in intercountry adoption need special accreditation for the relevant partner countries. The role and functions of adoption agencies are as defined by the Adoption Intermediation Act (Adoptionsvermittlungsgesetz) which require all agencies to be registered, and to be subject to government supervision. Each agency must have at least two adoption specialist social workers on its staff. Agency duties include: the provision of counselling—as well as medical, psychological, psychiatric and legal expertise and experience in placement and post-adoptive care. Since ratification of Hague, as Terres des Hommes point out, “the placement of children is usually carried out

56 The

Adoption Intermediation Act, s 2(1) and (2).

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629

by specialists, thus improving its quality” and it also noted “a decrease in child trafficking in the area of adoption, as well as in the number of private adoptions”.57 Voluntary or Independent Adoption Agencies Several independent nonprofit adoption agencies operate in Germany, as permitted and regulated by the Adoption Intermediation Act.58 The agencies operating within Germany are mostly affiliated to the churches; intercountry adoption services are independent non-profit organisations. Any adoption agency must operate with professionally trained social work staff.59 In total there are probably no more than 160: 95% of which are affiliated to either Catholic or Protestant churches. Accredited Bodies Some 12 independent agencies (Annerkannte Auslandsvermittlungsstelle) are accredited bodies authorized by special license, issued under s 4(1) of the Adoption Intermediation Act, to make intercountry adoption placements. They include organisations such as the International Social Services: German Branch, Parents for Children, Help a Child and AdA. They are accredited and thereafter monitored by the relevant state Central Adoption Authority.

14.4.2.2

Central Adoption Authorities

The Central Adoption Authorities of the states (Länder) are responsible for matters such as: the registration and supervision of independent adoption agencies; arranging staff training; and maintaining regional lists of hard to place children to facilitate the identification of possible matching placements. They also perform intercountry adoptions and act as Central Authorities for the purposes of the Hague Convention.

14.4.3 Role of the Determining Body There is no central federal regulatory body for adoption in Germany. The process is judicial in nature, requiring a court order,60 with the Family Court (Familiengericht) determining all applications in accordance with ss 1741–1772 of the German Civil Code (Bürgerliches Gesetzbuch) and the Procedure in Family Matters Act (Familienverfahrensgesetz.61 Appeals lie to the superior district court (Oberlandesgericht) and further to the federal court (Bundesgerichtshof ). 57 See, Lammerant, I. and Hofsetter, M. (eds) Adoption: at what cost?, Terre des Hommes, Lausanne,

Switzerland, 2007, at p. 23. Adoption Intermediation Act, s 2(2). 59 Ibid., s 3(2). 60 The Civil Code, s 1752. 61 The enlarged Family Court assumed jurisdiction for adoption applications in 2009. Author acknowledges with thanks the advice of Nina Dethloff on this matter (note to author, 9.10.2014). 58 The

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14.4.4 The Registrar General Germany has no central registration system for recording births, marriages and deaths. Instead each state has established its own separate system of civil registration. Adoptions are included in the records of births, marriages and death maintained by the civil registration office (Standesamt) in the local towns. Whether the order granted was in respect of a domestic or intercountry adoption, the adopted child’s details must be recorded by the Registrar for the district in which the adopters reside.62 In relation to the ‘simple’ adoption of an adult, as this does not confer citizenship status, the Registrar will not record the adoption in the birth register. An appeal against a decision of the Registrar lies to the lower district court.63

14.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria In Germany, the adoption of minors (under 18) is regulated by ss 1741–1766 of the Civil Code. There is also the option of adopting adults (ss 1767–1772) but the latter requires only that the adoption is morally justified (sittlich gerechtfertigt). That said the following passages refer only to the adoption of minors.

14.5.1 The Child For minors, the gateway to the adoption process is manned either by public (Youth Welfare Office) or private adoption agencies. Both sets of service providers bear responsibility for assessing applicants and submitting home study reports to the court, which is required in any case concerning the proposed adoption of a minor. The upper age limit for a child is their 18th birthday. The law requires a full report on all matters relevant to the welfare interests of the particular child, including a profile of their family of origin, to be submitted to the court.64

14.5.1.1

The Welfare Threshold

The welfare needs of a child do not necessarily constitute criteria for admission to the German adoption process. The threshold merely requires that adoption should serve the best interests of the child. This is generally interpreted as predicting that 62 Personenstandsgesetz,

s 15, para 1, No 3. s 45. 64 The Recommendations concerning adoption procedures etc. 1994 (The Recommendations), No 32. 63 Ibid.,

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631

the child’s circumstances will improve and that this will be evidenced by the child’s predicted psychosocial development, and/or by the legal safeguards protecting their welfare.

14.5.2 The Birth Parents Both birth parents must consent to the adoption of their child (see further below at Sect. 14.8) regardless of their marital status and whether or not they live together with the child. The consent requirement is independent of parental rights: so both birth parents must consent even if not married or even if they even have had their parental rights removed by court order (see, however, Sect. 14.8.2.1). The court will require a full report on the birth parents and their family background: this will need to address the reasons and circumstances of their voluntary relinquishment of the child; or, alternatively, a full explanation of the reasons for their refusal to consent to the proposed adoption. The report must include details of any counselling offered or provided to the birth parents.

14.5.2.1

Unmarried Mother

Even where the unmarried mother has sole custody the consent of the father to the adoption of their child must still be sought. However, since May 1st 2014, the law has granted women a right to “preliminary” anonymity when giving birth; the child, on attaining the age of 16, has the right to access information regarding their birth mother’s identity.65

14.5.2.2

Unmarried Father

Since 1998, the locus standi of unmarried fathers, in relation to their children for whose adoption the mother had given consent, has been the same as that of married fathers. Once paternity has been established, or claimed by a presumptive father, the local Youth Welfare office must offer him advice regarding his rights.66 Specifically, the office must counsel the father on his right to refuse his consent to the adoption. If the birth father has applied for custody, an adoption order cannot be made until after the court has ruled on his application.67 If he refuses his consent then the adoption order cannot be made.

65 See,

Pregnancy Conflict Act, s 25. s 1600 a. 67 Ibid., s 1747(3) Nr 3. 66 Ibid.,

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The ECtHR ruled in Zaunegger v. Germany68 that the legal right of an unmarried mother to refuse the father the possibility of his obtaining, with her, joint custody of their child was discriminatory, in relation to their equal right to private and family life, and constituted a breach of Article 14 taken together with Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, the law was amended (see, Civil Code, s 1626a).

14.5.2.3

Failed Parental Rehabilitation

The local Youth Welfare Offices have a duty to make appropriate efforts to reunify a family, within a reasonable time following the admission of a child into the care system,69 while birth parents of a child in foster care have the right to request reunification services at any time.70 Also, birth parents enjoy a presumptive right to maintain contact with their child in foster care, unless a family court rules that contact endangers the welfare of that child.71 These responsibilities reflect the significant weight attached to parental rights as protected in the Constitution, leading to the relatively strong position of birthparents. Experiences from adoptions during the Nazi years and in the totalitarian East German system from 1949–1989 resulted in constitutional provisions establishing the rights of birthparents to be protected by the state wherever possible. Thus the threshold for taking children into custody is much higher in Germany than in other states: only if there is no other option can children be taken into foster care against parental wishes. The reverse is also true: children will only be returned to the birthparents if the latter can show that they have been able to restore the standards of care expected from those with parental rights: a complete change of life and attitude is required compared to the status quo ante. So, for example, in Haase v. Germany,72 the ECtHR found that the domestic court had been justified in deciding that the best interests of a child were served by not reuniting him with his birth parents. The court explained73 : Experience shows that when children remain in the care of youth authorities for a protracted period, a process is set in motion which drives them towards an irreversible separation from their family. When a considerable period of time has passed since the children were first placed in care, the children’s interest in not undergoing further de facto changes to their family situation may prevail over the parents’ interest in seeing the family reunited. The possibilities of reunification will be progressively diminished and eventually destroyed if the biological parents and the children are not allowed to meet each other at all.

68 (Application

no. 22028/04), IHRL 3698 (ECHR 2009). Social Code VIII, s 37. 70 The Civil Code, s 1632. 71 Ibid., s 1684. 72 Application No. 11057/02, (2004). 73 Ibid., at para. 103. 69 The

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Generally, as Wolf has noted, “in Germany there is substantial criticism of the practice of reuniting children with birth families”. He asserts that ‘efforts to support the birth family are sparse … it is usually only after several years living in foster care that the issue of return to the birth family is raised … much more rarely than in the U.K., birth families are reunited’. 74 In practice, only in 4–5% of the cases are birth families reunited. A virtual absence of non-consensual adoption means that by far the majority of children remain in the care system until they age out.

14.5.3 The Adopters: Eligibility and Suitability Criteria Marital status is not a legal determinant of eligibility to adopt. However, married applicants can only adopt together (i.e. not as individuals) and if they already have children they must show that the proposed adoption will not be to the detriment of the latter nor to the welfare interests of the prospective adoptee.75 The adoption agency will assess the eligibility and suitability of prospective adopters and submit its findings in a home study report, in accordance with matters specified in the Recommendations,76 to the court.77

14.5.3.1

Third Party Adopters

Until 1961 the law required adopters to be childless and/or be aged 50 or more, as the traditional social function of adoption had been to ensure an heir. Since then adoption has been transformed to become, as elsewhere, a service providing family life for children in need and for childless couples. There is now no legal upper age limit for an adopting parent. However, guidelines advise a maximum age gap of 40 years between adoptive parents and child, particularly if they are adopting a baby. Applicants must be at least 25 years old.78 A married couple must apply jointly79 (except where one spouse is legally incompetent or under age80 ): the minimum age for one applicant being 25 years old and the minimum age of the second being at least 21; there is no stipulation regarding a minimum period of marriage.81

74 See, Wolf, K. , ‘Promoting the positive development of foster children: Establishing research in Germany’, Adoption & Fostering, Vol 36, Issue 1, 2012, pp. 40–51, at p. 49. 75 The Civil Code, s 1745. 76 The Recommendations, No 3.3. 77 The Adoption Placement Act, s.7. 78 The Civil Code, s 1743. 79 Ibid., s 1741(2)(2). 80 Ibid., s 1741(2)(4). 81 Ibid., s 1743(2).

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As joint adoption is only possible for spouses, registered partners cannot adopt as a couple as s 1742 of the Civil Code does not extend to them and thus, arguably, is discriminatory. However, one member of a couple may adopt alone. In such circumstances, the consent of a registered partner is required.82 In the case of an adult adoption, where the adoptee is a married person, the consent of their spouse is necessary.83 There are no restrictions as to the residency or nationality of the adopting parent and non-Germans may adopt a German child.

14.5.3.2

First Party Adopters

There are no special requirements regarding adoption by a relative. Step-Parents Where the prospective adoption concerns a stepchild, then a lower age limit of 21 years is permitted. In the case of a step-child adoption, the consent of the “remaining” birthparent—as well as that of the spouse or registered partner—must also be available.84 The Recommendations emphasise the need for a thorough assessment of the adopter’s motives, family dynamics, the welfare interests of the child and the sustainability of the new family unit.85 Indeed, counselling from a public or independent adoption agency is a prerequisite.

14.5.3.3

Intercountry Adopters

Where the applicants are pursuing an intercountry adoption in respect of a child in a Hague compliant country, then the related files prepared by a public or private agency can be processed through the Federal Central Authority (Bundeszentralstelle für Auslandsadoption)—if so requested by the applicants. Otherwise, the applicants can bypass Central authority oversight as it has only structural and coordination responsibilities. If either the prospective adopter/s or the child are resident in Germany,86 then the Family Court has jurisdiction to hear an intercountry adoption application and the local Youth Welfare Office Department will act as the adoption agency if no accredited body is involved.87 Where the applicants and child are habitually resident in Hague signatory states then the assessment of adopters and related proceedings

82 The

Registered Partnership Act, s 9(6) 1. Civil Code, s 1749(2). 84 Ibid., s 1749(1). 85 The Recommendations, No 3.43. 86 The Procedure in Family Matters Act, s 187. 87 The Social Code, VIII, para 1, s 50. 83 The

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are as set out in the Convention.88 There has been a judicial ruling that intercountry adopters must fully comply with the normal assessment procedures and a failure to do so when adopting a child overseas will violate German laws.89

14.5.3.4

Single and Same Sex Adopters

Unmarried, single people, as well as one member of an unmarried couple, including those in a registered civil partnership (Lebenspartnerschaft), can adopt in Germany; married (heterosexual or homosexual) couples can only adopt jointly.90 Step-children may be adopted by the new partner of one of the biological parents even if the adopter and the parent are not married91 provided the other biological parent is unknown/absent or gives consent to the adoption. A 2009 study reported that there were around 16,000 children living with same-sex parents. In 2014 the Federal Constitutional Court delivered a judgment that triggered legislation to facilitate same sex adoptions. While acknowledging that the constitutional provision—“marriage and the family shall enjoy the special protection of the state”—could be used to justify ruling out same-sex partners adopting the other partner’s adopted child, Kirchhof J nevertheless held that “in marriage as in a civil partnership, adoption provides the child in the same way with legal security and material advantages in terms of care, support and inheritance law”. Subsequently, partially in response to that case, the government introduced legislation to rectify the law with effect from July 2014.92

14.6 Pre-placement Counselling The Youth Welfare Office has a legal duty to offer pre-placement counselling to the birth parents and advise them on the alternative options available. Any wishes the parents may have regarding the placement of their child must be noted, taken into account and given effect, insofar as they are judged to be compatible with the welfare interests of the child. Once legal proceedings are underway, relinquishing parents should be further counselled on the course of adoption proceedings and given advice as to the consequences of an adoption order.93 Also, they must be be counselled with the aim of establishing their views on “openness”, either in form of personal or other contacts, or at least being able to obtain information on the further development of 88 See, Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, Article 2. 89 See, AG Hamm, 3 February 2006—XVI 41/05. 90 Civil Code, s 1742. 91 Civil Code, s 1766a. 92 See, further, at: http://dip21.bundestag.de/dip21/btd/18/012/1801285.pdf. 93 The Social Code, VIII, s 51.

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the child. Where proceedings are initiated to dispense with the need for parental consent, then the local office must advise the parents accordingly.

14.7 Placement Rights and Responsibilities In keeping with the essentially consensual nature of the adoption process in Germany, an adoption placement will only be made after all parties have given their consent, even if a court has terminated the birth parent/s custody rights.94

14.7.1 Authority to Place Authority to make adoption placements is as stated in the Adoption Intermediation Act, which requires that they be made by professionals only.95 This most crucial step in the adoption process must only occur after a rigorous matching assessment by the professionals involved,96 the prospective adopters having had sight of the child and, following agreement in principle, a full disclosure of all information regarding the child’s background. Where all parties favour an open adoption, then the adoption agency may facilitate a placement direct from hospital after the baby’s birth, even though the birth parents are unable to give a valid consent until the child is at least 8 weeks old.97

14.7.1.1

Placement by Birth Parent

Such placements are prohibited in German law but there is good reason to suspect that some undetected birth placements do occur.

14.7.1.2

Placement by Accredited Body

Adoption placements are mostly made by accredited independent adoption agencies or by the local Youth Welfare Offices. While each may have responsibility for domestic adoptions, intercountry placements98 are arranged through the Central Adoption Units of the States (Länder) or by special accredited bodies that also act as Central Authorities under the Hague Convention. A considerable proportion of ICA 94 The

Civil Code, s 1666. s 2(1). 96 The Recommendations, No 4. 97 The Civil Code, s 1747, para 3. 98 Ibid., s 2a(4). 95 Ibid.,

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placements were alleged99 to bypass the regulatory process. Arguably, such practices amount (or may amount) to “trafficking” which is illegal and violates Art 35 of UN CRC. In 2020, therefore, it became mandatory to use public or private agencies to prepare, facilitate and monitor any placement, be it domestic or intercountry. Since then, any unaccompanied or private adoption from abroad cannot be legally recognized in Germany. Culture/Religion Considerations If a child already has adherence to a particular religion,100 this has to be respected by an adoption agency and choice of placement should ensure religious compatibility. Birth parents have the right to stipulate the preferred religious upbringing of their child.

14.7.1.3

Foster Placement

Once the child placed for adoption by an adoption agency or accredited body, the status of the placement is legally defined as ‘foster care with a view to adoption’ (Adoptionspflege).

14.7.2 Placement Supervision A probationary adoption placement (Adoptionspflege) is generally a prerequisite for an adoption application under German law,101 whether the proceedings are domestic or intercountry in nature. It is treated by the professionals concerned not as ‘probation’ but as a therapeutic settling in period.102 During this time, from the signing of consent forms, or from the issue of a child care order, until court determination of the adoption application, parental rights are suspended. The local Youth Welfare Office assumes guardianship responsibilities. There are no prescribed time limits: duration is dependent upon the length of time it takes to confirm that the child has settled and the family dynamics are propitious for the future. At the conclusion of the probation period, the supervising agency must provide an evaluative report, which details the emerging family dynamics, to the Family Court. Should the placement break down, the court must be notified and it must determine the least harmful alternative care 99 See,

further, Reinhardt, J. Reformbedarfe im Recht der Minderjährigenadoption und der Adoptionsvermittlung (2015) and Botthof, A., Perspektiven der Minderjährigenadoption (2014), at pp. 166ff. 100 Federal Law on the Religious Education of Children (15th July 1921; 12th September 1990). 101 The Civil Code, s 1744. 102 The Recommendations, No 4.4.

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arrangement for the child. One option may even be the birth parents resumption of care responsibility.103

14.8 The Hearing In Germany, adoption is essentially a consensual process. Nonetheless, the Family Court (Familiengericht) will hear the prospective adoptive parents and the child (but not necessarily the birthparents) in private, following submission of an application.104 The proceedings are as outlined in the Procedure in Family Matters Act. The court is required to protect the anonymity of the applicant adopters,105 investigate and examine all relevant facts ex officio,106 and it must hear submissions from the adoption agency,107 the child108 and all other children already living in the adopters’ family. The agency is required to submit a report that includes an assessment as to whether child and adopters are appropriately matched. Also, in every case the local Youth Welfare office and (in case of adoption with foreigners involved) the Central Adoption unit must report to the court.

14.8.1 Where Consent Is Available The birth parents consent is necessary but this is only legally valid if given a minimum of 8 weeks after the child’s birth.109 The consent of an unmarried father, however, is valid even if given before the birth. Consent is most usually given without any disclosure of the prospective adopters identity but it must refer to a specific person or couple. The consent of the child is also a prerequisite for his or her adoption110 but the rules governing how it is given are unusually meticulous. So, for example: a child is not actually entitled to give an autonomous consent, it must be accompanied by that of their guardian111 ; if the child is less than 14 years of age or legally incompetent, then it is the consent of their guardian that must be given.112 The fact that a child aged 14 or more, the subject of adoption proceedings, is entitled to give consent but only 103 The

Code of Procedure in Non-Contentious Matters, section 49, para 1, No 1 m. Civil Code, s 1752(1). 105 The Civil Code, s 1758. 106 The Procedure in Family Matters Act, s 26. 107 Ibid., s 189. 108 Ibid., s 192. 109 The Civil Code, s 1747(2) 1. 110 Ibid., s 1746(1) 1. 111 Ibid., s 1746(1) 3. 112 Ibid., s 1746(1) 2. 104 The

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if this is endorsed by a guardian seems anomalous and may well be discriminatory. Interestingly, and in contrast with other countries, there is provision for a child aged 14 or older to withdraw their consent at any time prior to the making of an adoption order—with or without the permission of their guardian.113 No other party may do so.114 However, the validity of a parental consent lapses if an adoption order is not issued within 3 years.115

14.8.2 Where Consent Is Not Available Although by far the majority of all adoptions proceed on a consensual basis, German law also provides for circumstances when parental consent is either unavailable, if the child has been born anonymously (Vertrauliche Geburt), or the right to exercise it has been forfeited due to parental conduct.

14.8.2.1

Dispensing with Consent

Where a birth parent is dead, incapacitated by mental illness, or their whereabouts are unknown, then the court may dispense with the need for their consent.116 It may also do so where the birth parent/s custody rights have been terminated following convictions for child abuse or neglect, abandonment or failure to provide financial support for more than one year.117 Also, where the birth parents are indifferent towards the welfare of their child, but not culpable of abuse or neglect, then the need for their consent may be dispensed with three months after they have received counselling as to their rights.118 However, it would seem that these provisions are seldom used due to the strong constitutional position of the birthparents and the negative experiences with forced adoptions during the Third Reich and in communist East Germany. Moreover, dispensing with consent is a wholly separate matter which the court is required to rule upon even when parental custody has been previously been judicially removed. Consent to adoption in Germany is a function of innate parental rights and is quite distinct from any parental care responsibilities.

113 Ibid.,

s 1746(2). s 1750(2) 2. 115 Ibid., s 1750(4) 2. 116 Ibid., s 1747(4). 117 Ibid., s 1748(1) 1 and 2. 118 Ibid., s 1748(2) 1 and the Code of Social Law (Sozialgesetzbuch), Vol VIII, s 51(1). 114 Ibid.,

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14.9 Thresholds for Exiting the Adoption Process The lack of a range of alternatives, coupled with an inability to attach conditions, means that the court’s ambit of discretion is restricted to either making or refusing an adoption order.

14.9.1 The Welfare Interests of the Child The principle of the welfare of the child—together with his or her (prospective) integration in the adoptive family—are the central legal determinants for making an adoption order. The Civil Code, s 1741, declares that: A child may be adopted if such adoption will serve the welfare of the child and if it is to be expected that a parent-child relationship will develop between the adopter and the child.

The (prospective) integration in the adoptive family has to be examined by the court on the basis of the experiences of the “probation period” (see above at Sects. 14.7.1.3 and 14.7.2), the hearing (above at Sect. 14.8) and the statements of the adoption agency and the local Youth Welfare Office (plus the Central Adoption Unit, if applicable (above at Sect. 14.8). There have been judicial rulings that an adoption carried out without taking the interests of the child into account violates German public policy and cannot therefore be recognized119 whereas a foreign adoption can be, even if legally flawed, as long as it serves the interests of the child and is consistent with the essential principles of German law.120 However, there is no suggestion in the above phrasing that the welfare test is, as in equivalent U.K. legislation, to have a projected application to assess the probability of the proposed adoption ensuring the child’s best interests on a life-long basis. There have also been rulings illustrating that even where the letter of the law has not been complied with, the welfare interests of the child may prevail and allow an adoption order to be made. This seemed to be the case in the 2014 ruling by the Federal Supreme Court which held that the Californian registration of a gay couple, as the legal parents of a surrogate child, should be recognised in German law; in part because one of the parents was genetically related to the child.121 The court took the view that any consideration of whether a foreign court decision is contrary to German public policy (orde public) must take into account the child’s right to respect for his or her private and family life under Article 8 of the ECHR, citing the ECtHR decisions in Mennesson and Labassée.122 119 See,

KG Berlin, 4 April 2006—1 W 369/05. AG Hamm, 17 April 2006—XVI 44/05. 121 See, Federal Supreme Court judgment of 10 December 2014, XII ZB 463/13. 122 See, Mennesson and Others v France and Labassee v France, Application Nos. 65192/11 and 65941/11, 2014. 120 See,

14.9 Thresholds for Exiting the Adoption Process

14.9.1.1

641

Paramountcy

The above s 1741 statement of principle, that the welfare interests of a child (Kindeswohl) is to be treated as of paramount significance, matches the provisions of the Convention on the Rights of the Child and is also relevant regarding recognition of foreign adoption orders: these need to be substantiated by evidence that the child’s best interests have been fully taken into account, to a standard compliant with UN CRC, if they are to be recognized in Germany. The s 1748 provisions of the Civil Code lend added weight and extend the reach of the welfare principle relative to the innate rights of birth parents. Constraints The making of an adoption order is not statutorily constrained by requirements such as that the court consider the lifelong effects of adoption on the subject, or the benefits of attaching conditions, before granting the application.

14.9.1.2

Voice of the Child

In German adoption proceedings, unlike the position in almost all other countries, judges are required to hear a child in person and must do so regardless of the age of the adoptee (s 192 procedure in the Family Matters Act). Taking into account the child’s age, development and emotional stability the court will decide whether to hear the child: alone, or together with birth parents, or with prospective adopters, and with or without siblings; in the court or in the family home; in the presence of experts; and on one occasion or more.

14.9.1.3

The Paramountcy Principle and Religious Upbringing

While there are no legal constraints regarding religious upbringing, and notwithstanding the absence of the paramountcy principle, the Guidelines do require that the child’s religion be taken into account. In effect, a guarantee must be given that the child will be free to practice his or her religion.123 On the other hand the birthparents may decide to consent to an adoption by adopters of different religion to that of their family.

14.9.2 Representing the Child’s Welfare Interests German law provides for the appointment of a guardian ad litem in Family Court proceedings relating to parental custody for a child whenever this is necessary in 123 The

Guidelines, No 3.316.

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order to preserve the interests of the child, for example where the decision may include the separation of a child from his/her family.124 This, for example, may be the case in a step-parent adoption where the court considers that the application gives rise to a conflict of interests that may jeopardise the child’s welfare and it may then appoint independent representation for the child.125

14.10 The Outcome of the Adoption Process Under German law, an adoption application can only be granted or rejected. There is no provision for interim orders nor is there a range of private family law orders available to the court that could, where needed, offer an alternative to adoption. In relation to domestic adoption applications, the Family Court will, on approving the application, issue the requested adoption order. In relation to intercountry adoption applications the same court has authority under the Procedure in Family Matters Act, s 187, to issue an adoption order in circumstances where (as mentioned above) either the prospective adopter/s or the child are resident in Germany. In practice, however, most “sending” states insist that the adoption order is made within their own jurisdiction.

14.10.1 Adoption Order Adoption proceedings, as governed by the Procedure in Family Matters Act 2009, provide for Family Courts to have the requisite jurisdiction. As a general rule, that court will not grant an adoption order until a reasonable probationary period has elapsed.126 In the case of foreign adoptions, legal recognition is mandatory in Germany127 unless Article 23 of the Hague Convention is applicable (see, further, Sect. 5.6.5). Also, it has become customary to transpose weak foreign adoptions into statutory adoption orders in order to remove all uncertainty as to the legal status of the child and their adoptive family.128

124 The

Procedure in Family Matters Act, s 158. Civil Code, s 1796. 126 Ibid., s 1744. 127 Effects of Foreign Adoptions Act (Adoptionswirkungsgesetz), s 5. 128 Effects of Foreign Adoptions Act (Adoptionswirkungsgesetz), s 3. 125 The

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14.10.1.1

643

Conditional Adoption Order

German law does not allow for an adoption order to be compromised. Aside from the distinctions between ‘full’ and ‘simple’ forms of adoption and between the restrictions imposed upon adoption by relatives, there is no possibility of using an accompanying order—for example, as to possible arrangements for post-adoption contact between an adoptee and their birth parents or siblings—that could customize the legal effects of adoption to accommodate the particular welfare interests of an adoptee. This issue was examined in I.S. v. Germany129 where the applicant complained of not being able to have regular contact with, and receive information about, her biological children who had been adopted by another couple. She submitted that the German courts’ decisions on contact and information with regard to her children had breached her human rights. She alleged that she had been promised contact with and information about the children, which had not been respected. The ECtHR held that there had been no violation of Article 8. It found that, by consenting to the adoption, the applicant had knowingly given up all rights as regards her biological children. The arrangements concerning information about them had in particular been based on a mere declaration of intent by the adoptive parents. It found that the German courts’ decision, to favour the children’s interest in developing in their adoptive family without disruption over the mother’s right to respect for her private life, had therefore been proportionate. The 2020 amendment of the Adoption Intermediation Act stipulates that adoption agencies must try to make consensual arrangements for ongoing contact or, at least, for exchanges of information on the development of the adopted child. In practice informal arrangements for post-adoption contact had been well established before, if only by means of an annual exchange of letters and photographs.

14.10.2 Alternative Orders The court cannot grant any alternative to an adoption order: its jurisdiction is limited to granting or refusing the order sought (ne ultra petita). If adoption is refused, then the legal status of the child remains as before.

14.11 The Effect of an Adoption Order In Germany, as in most other western countries, the effect of a full adoption order is to legally end the relationship between child and birth parents and transform the relationship between adopter and child to that of parent and child.130 However, 129 Application 130 The

No. 31021/08, (2014). Civil Code, s 1754.

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unlike those other countries, not all adoption orders are made in respect of children; the adoption of adults is also possible but only in the ‘simple’ rather than the ‘full’ form.

14.11.1 The Child A full adoption order is granted in relation to any child adopted regardless of whether the adoption is by third parties, a single person, a relative or step-parent. The issue of a full adoption order ends an adoptee’s legal relationship with his or her birth parents and substitutes an equivalent relationship with their adopters whose surname they will assume thereafter.131 The usual accompanying legal indicators of such a change of status also apply: an entitlement to maintenance from adopters; full inheritance rights; and, as the adoptee and adopters are held to come within the prohibited degrees of consanguinity, they are prohibited from marrying each other.132 A child adopted by a German citizen becomes a German national automatically if aged less than 18 on the date the application for adoption was made and if at least one of the adopters is German.133 Adult Adoption A simple adoption is reserved for adults134 but in certain restricted circumstances a full order may be granted.135

14.11.2 The Birth Parent/s On the granting of a full adoption order, all legal ties between the adoptee and their family of origin are terminated136 (except in cases of kinship adoption137 ).

131 Ibid.,

s 1757. however, that s 1766 of the Civil Code expressly addresses the legal consequences for the adopter and adoptee in the event of their marrying each other: the adoption status (rather than marital status) is then cancelled. 133 The German Nationality and Citizenship Act 1913, as amended in 1993, s 3, No 3, and s 6. 134 The Civil Code, ss 1767–1771. 135 Ibid., s 1772. 136 Ibid., s 1755. 137 Ibid., s 1756. 132 Note,

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14.11.3 The Adopters The effect of an adoption order is to fully vest in the adopters all parental responsibilities that were previously held by the birth parents. Thereafter the legal relationship between adopters and child is as if the child had been born to them and of their marriage.

14.11.4 Dissolution of an Adoption Order A German adoption order is theoretically permanent and irrevocable. However, if it was legally flawed from the outset then it may be repealed: for example, if the declaration of consent was made by mistake, under duress or because of the legal noncompetence of one of the parties138 ; unless the flaw is rectified.139 Any revocation is subject to this not being seriously damaging to the welfare interests of the child140 and proceedings must be initiated within three years of the adoption order being issued,141 by the aggrieved party.142 Additionally, a singular characteristic of a German adoption order, which lends considerable weight to the welfare principle, is that the order may be revoked by the Family Court, at its discretion, without the need for a motion initiated by any of the parties involved, if satisfied that not to do so would seriously imperil the welfare of the child concerned.143 If the adoption order was granted in favour of a couple, it may be revoked only in respect of one of them.144 Also, it may be cancelled by the Constitutional Court at the instigation of a person—such as the unmarried father of the adopted child—with proof that their fundamental right to be heard by the court, prior to its granting the order, was breached.145 Finally, any revocation is subject to the condition that the birth parent is willing and able to undertake care of the child or if the purpose of the revocation is to permit a fresh adoption.146 The consequences of revocation are to: leave intact the legal effects of the adoption up until the point of revocation147 ; and thereafter to sever all legal ties to the adopters and their family while restoring those between the child and their birth family.148 138 Ibid.,

s 1759. s 1760(1) and (2). 140 Ibid., s 1761(2). 141 Ibid., s 1762(2) 2. 142 Ibid., s 1762(2) 1. 143 Ibid., s 1763(1). 144 Ibid., s 1763(2). 145 The Federal Constitution, Basic Law, Article 103. 146 The Civil Code, s 1763(3). 147 Ibid., s 1764(1). 148 Ibid., s 1764(2) and (3). 139 Ibid.,

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14.12 Post-adoption Support Services State support for all parties to an adoption is well established in principle and practice. The domestic adoption system is almost entirely financed by the state—parents only pay modest fees for background checks and medical examinations. Post-adoption support services are viewed as a public service entitlement: counselling and support services are available to the adopters, the child and the birth parents from the relevant adoption agency and/or from the local Youth Welfare Office.

14.12.1 Adoption Support Services There is official recognition that the adopters and child will require ongoing support,149 their entitlement to access the full range of normal family and community services must be explained and facilitated.150 Support may include the provision of contact information for, and liaison with, local and national adoption networks and support groups. In general, the German authorities also encourage agencies to facilitate contact between adopting families and birth parents and assist with the provision of updates on the child’s development, exchange of photographs, etc.151 From 2020 they are obliged to regularly investigate whether any contact is possible and—if so—in what form. Also, adoption agencies are obliged to support and accompany contacts if requested.

14.13 Information Disclosure, Tracing and Re-unification Services The German Constitution is guarded on the subject of information rights. It asserts that individuals have a fundamental right to develop their own personality, but it also warns that this is conditional upon no infringement the rights of others or of public morals.152 The maternal right to relinquish a child anonymously—leaving no information whatsoever—with a state guarantee that her anonymity would thereafter be protected, is now severely constrained. Even if the mother has been granted anonymity at the time of the birth of her child (Vertrauliche Geburt), the latter has now the right to access identifying information (Herkunftsnachweis) on attaining 16 years of age.153 149 The

Recommendations, No 4.4. Social Code, VIII, ss 27–41. 151 Adoption Intermediation Act, ss. 8a, 8b and 9. 152 The Federal Constitution, Basic Law, Article 2. 153 Pregnancy Conflict Act, s 31. 150 The

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647

14.13.1 Information Disclosure The German Federal Constitutional Court has upheld the constitutional right of every person to know his or her biological origins.154 Adoptees aged 16 or older may access their adoption files (if under 16, the adoptive parents can claim access to the files as the adoptee’s legal representative)155 and the public register, which records the facts relating to his or her origins.156 Moreover, agencies are obliged to explore the potential for openness before and after the adoption order is issued (Adoption Intermediation Act, ss 8a, 8b and 9).

14.13.2 Adoption Registers The Personal Status Act (Personenstandsgesetz) requires the name and identifying data of an adopted child to be registered under the family name of the adopters.157 An adoptee’s birth certificate will simply name the adopters as the birth parents with no indication that the child has been adopted.158 The original birth certificate is kept on file by the Registrar and is not publicly accessible. The adoptee, on reaching 16 years of age, is entitled to copies of his or her birth certificate on application to the Registrar.

14.13.2.1

The Adopted Children Register

There is no such register in Germany. No official mechanism exists—such as access to an adoption specific Register—that would enable members of an adoptee’s birth family to identify, locate and/or contact the adoptee.

14.13.2.2

The Register of Intercountry Adoptions

Germany does not maintain a special register for recording the details of all children adopted from outside the country. The Federal Central Authority (Bundeszentralstelle für Auslandsadroption), however, has information relating to all cases of intercountry adoptions with the exception of independent, private adoptions (which were common and legal until 2020) from member states of the Hague Convention and until 2020 from all other sending states. The Federal Central Authority is therefore able to trace 154 Decision

of the German Constitutional Court, BVerfGE 79, 256; FamRZ 1989, 255. Adoption Intermediation Act, s 9b(2). 156 Personal Status Act (Personenstandsgesetz), s 61(2) 1. 157 Ibid., s 15, para 1, No 3, 4. 158 Ibid., s 63. 155 The

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the cases dealt with by each adoption agency and thus locate the relevant adoption files.

14.13.3 Conditional Access An adoptee’s access to identifying information is granted by law159 ; context information on the life of the adoptee’s parents or siblings can only be permitted subject to the informed voluntary consent of the relevant birth parent and/or sibling.

14.13.4 Tracing and Re-unification Services The parties to an adoption do not share an equality of rights to subsequently access information: agency disclosure of information on an adoptee sought by birth family members is entirely dependent upon the consent of adopters and adoptee. However, the adoptee has a right of access to his or her adoption files as well as to personal records. The responsibility to counsel and support “searching” adoptees is not only provided by the law160 but has become a central aspect of the contemporary work of German adoption agencies. They also encourage, support and accompany postadoptive contacts between adoptees and their birth families and facilitate contactseeking activities by birthparents or siblings “searching” for their adopted relatives.

14.13.4.1

The Adoption Agency

Facilitating adoptees in a search for information relevant to establishing their identity is acknowledged to be a public service duty and related counselling services are available and even mandatory before access to the adoption files is given. In the event of the necessary consents being given, then the relevant adoption agency is obliged to mediate between the parties and assist in an exchange of information and/or facilitate personal contact.

14.13.4.2

The Role of Adoption Support Agencies

Adoption agencies and the local Youth Welfare Offices are required to provide ongoing counselling and support services to all parties following an adoption on request.161 159 Adoption

Intermediation Act, s 9b. Intermediation Act, s. 9 (2). 161 Adoption Intermediation Act 1976, s 9. 160 Adoption

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14.14 Conclusion The most obvious distinguishing characteristic of the adoption process in this jurisdiction is that it is rapidly fading in significance. Most adoptees are the step-children of their adopters. So, if as in some other jurisdictions, legislation should introduce a presumption that an alternative order would be more appropriate for step-parents, then adoption would almost cease to have much relevance for family law in Germany. Currently, the characteristics of this process naturally reflect the primary being use made of it. German demographic trends point inexorably towards a shrinking population. With a steadily increasing proportion of elderly citizens and a declining fertility rate, children are becoming ever more precious; a needed resource to fulfill family life and fuel investment in a secure economic future. Paradoxically, however, German law does little to facilitate the growing numbers of those hoping to become parents. While it would be simplistic to overstate the shadow of fascism, eugenic experimentation and the forced adoptions in Communist East Germany that perhaps continues to hinder the formulation of assertive state policies in Germany, nevertheless this may be contributing to the restraint shown by government in developing assertive policies in relation to family matters. Other factors, however, are also in play. As Reinhardt points out “statistics show a steady decrease of applicants for adoption which leads to the assumption that people in general prefer “own” children created by use of the increasing medical methods, or at least “genetically part-identical” children by using possibilities of surrogacy abroad”.162 The high number of children in the public child care system has not challenged the consensual nature of Germany’s adoption process. There would appear to be a reluctance to re-examine policies that for some decades have resulted in a population of not less than 50,000 children who are left to age-out in state care: instead of adoption, some 80% are offered only the protective umbrella of guardianship; while the rhetoric claims that every effort should be made to reunite children with birth families, little in fact is being done—or, perhaps, can be legally done—and an unusually high proportion are left in long-term residential care. In addition, the laws governing artificial reproduction treatment and surrogacy are particularly restrictive, denying access to the many for whom this is the only means to attain parenthood. Nor is there much in the way of recourse to overseas sources as is clearly revealed by the declining annual rates of intercountry adoption: it is noticeable that comparable rates in other European countries such as France, Spain and Italy are consistently much higher. In Germany, adoption remains very much a part of private family law: essentially used to redraw legal boundaries for reforming family units and in so doing it accommodates both child and adult adoptees. If there is to be a strategy for easing the impact of demographic trends then a case could be made for broadening the present use of 162 Note

to author (15.04.2020).

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adoption as a small contribution towards that end. This might include: removing some of the obstacles that currently prevent the adoption option being available for children in care; relaxing the constraints on accessing ART services and surrogacy, in which adoption often has an ancillary role; and providing encouragement and support services for those who choose to explore intercountry adoption. All of which would necessitate a more interventionist federal government approach to family matters.

Chapter 15

Romania

15.1 Introduction In the three decades since the fall of Ceau¸sescu, this landlocked country with a population in 2019 of 19.41 million, has slowly left behind the sterility of its communist past and is gradually if patchily growing out of the mediaeval conditions of poverty that then prevailed, particularly in the agricultural hinterland. Joining the EU in 2007 enabled Romania to benefit greatly and quickly from social infrastructure grants, access to expertise and other resources which have accelerated its socio-economic development. It also introduced Romania to the principles and standards established in a raft of European and international legal instruments, including those underpinning modern family law and the role within that of the adoption process. This chapter examines the ensuing modernising of adoption in Romania. Beginning with an overview of background factors, the chapter considers the social context that shaped the use of adoption. Poverty, abandoned “orphans” and the mass warehousing of children their parents could not afford to feed, formed the primary image of Romania for most western onlookers in the last decade of the twentieth century and explained why international adoption seemed a provident solution to an urgent crisis. The chapter outlines the framework of principles, policy and law—domestic and international—and the related patterns of adoption, before explaining the agencies and procedures that constitute the regulatory machinery governing the contemporary Romanian adoption process. The latter is then broken down into its successive stages, allowing the law and practice of each stage to be described and assessed. This is followed by a consideration of the legal effects of adoption on the parties involved and their subsequent entitlement to support and assistance, access to identity information and to the possibility of tracing and reunification services.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_15

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15.2 Background Romania is not a wealthy country. In 2017, according to EUROSTAT, 41.7% of children in Romania were at risk of poverty or social exclusion, significantly higher than the EU average of 24.9%, while the 2019 report Child Rights Now! Romania, found that one third of all Romanian children still live below the national poverty line.1 The adoption process in this country must be seen against that background.

15.2.1 The Social Context Giving Rise to Adoption At the time of the fall of the communist dictator, Nicolae Ceau¸sescu, an estimated 100,000 children were confined to orphanages. The new policy for the Child Protection Service (CPS) originated in 1997 when Romania started working towards joining the European Union.

15.2.1.1

Marriage and Family Breakdown

The Ceau¸sescu regime promoted early marriage (immediately after finishing school), made divorce very difficult, and criminalised adultery and homosexuality.2 The respect for the traditional, heterosexual marital family unit then established would seem to have outlived the period of dictatorship. 3 One indicator of the ongoing socially stabilising effect of marriage is evident in the fact that Romania has one of the lowest rates of single parent households in Europe: 7% compared with 22% in the UK and 30% in Denmark.4 Marital families have remained the norm in Romania. The marriage rate has climbed steadily to reach 8.8 marriages per 1000 inhabitants in 2007, after which it dropped considerably to 5.2 per 1000 in 2011 as a result of the external migration triggered by Romania’s EU accession and the opening of borders. Another factor influencing the marriage rate was Law No 396/2006, which took effect in 2007, granting financial support to couples who married for the first time—prompting an increase in marriages on its introduction and a fall on its repeal in 2010. Moreover, the divorce rate is low. Although this can be achieved with ease—by declarations of mutual agreement to terminate the marriage at the City Hall and the 1 See,

further, at: http://tdh-europe.org/news/children-in-romania-face-seven-serious-and-urgentproblems-according-to-child-rights-now-report/7452. 2 Criminal Code 1969. 3 There is no legislative provision for gay marriage but the ECJ decision in Coman and Others v. Romania, Case C-673/16, (June 2018) established that same-sex married couples have residence rights if one of the spouses is a Romanian citizen. 4 See, further, at: https://business-review.eu/news/romania-among-eu-countries-with-the-fewest-chi ldren-raised-by-a-single-parent-eurostat-171746.

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registration of that decision before the Registrar of Births, Deaths & Marriages5 —the divorce rate in Romania, 22.06%, is one of the lowest in Europe (64.2% in Portugal).6 The enduring social significance of marriage reflects the fact that Romania, following its rejection of communism, has reasserted a strong affiliation to its Christian heritage: it is now probably the most religious country in Europe.7 Needless to say, in a society unified around a Christian ethos—as was the case in Ireland in the 1960s—there would be considerable pressure on unmarried mothers to conform to religious values by relinquishing their ‘illegitimate’ infants to married couples.

15.2.1.2

Unmarried Mothers

In 2015, according to Eurostat, 12.3% of first children in Romania were born to teenage mothers (5.4% in the UK), the highest incidence of adolescent mothers in Europe; a record which this country has consistently maintained in recent years.8 The social context that permits so many children to be generated in the age group least able to care for them, also accommodates their abandonment. Many adolescent and unmarried mothers, without social support or access to appropriate services, either anonymously abandon their newborn infants or make arrangements for their relinquishment, choices that can lead into the adoption process. Abandoned Children/Orphans In 1966 a Ceau¸sescu decree prohibiting abortion, coupled with a scarcity of support services for families and growing poverty, led to a dramatic increase in the number of children abandoned or relinquished into state care. By 1991 it was estimated that 142,000 to 200,000 children (4% of Romania’s child population) were living in 628 residential care institutions of which 72 were orphanages caring for 6642 children aged 0–3 years most of whom had various medical or psychological problems.9 The majority of the children consigned to orphanages were not in fact orphans. In most cases, one or both parents of each child was still living and could be readily located by the authorities but this was viewed as pointless; it was accepted by all parties that state care rather than parental care was the only realistic option for neglected children. Abandonment along with poverty has proven to be a persistent social problem, mostly manifested by infants being left in maternity hospitals, other safe places or placed in the care of the CPS. During 2014–2018 four to five infants in every 1000 newborns were abandoned by their mothers in maternity hospitals and other 5 See,

further, at: https://www.ten-law.net/knowledge/divorcing-in-romania/. further, at: https://www.statista.com/statistics/612207/divorce-rates-in-european-countriesper-100-marriages/. 7 See, for example, Turcescu, L. and Stan, L., ‘Religion, Politics and Sexuality in Romania’, EuropeAsia Studies, Vol. 57, No. 2, (2005), pp. 291–310. 8 The 2019 Terre des hommes report Child Rights Now! Romania, found that teenage pregnancies continued to be one of the most serious social problems in Romania. 9 UNICEF report, at: https://www.unicef.org/about/history/files/unicef_annual_report_1991.pdf. 6 See,

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health units.10 In total, 4745 children have been abandoned in such places, though the number would seem to be steadily decreasing from about 1200 in 2014 to 751 in 2018. By far the majority were newborn infants, nearly half being reintegrated into their families while slightly more than half were placed in CPS facilities, mainly foster homes. Contemporary child abandonment has taken a new form, the so-called “children left behind” by parents going to work abroad.11 According to the Ministry of Education, in 2019 more than 159,000 children had at least one parent working abroad which leads to some thousands ending up being placed in foster care, with relatives or other families and some in institutions. The associated problem of large numbers of ‘street children’ begging in public places12 was a matter of concern to the Committee on the Rights of the Child in its ‘Concluding Observations’ on the fifth periodic report of Romania of 13 July 2017. The fact that so many infants are abandoned—unidentifiable and wholly bereft of parental ties—together with the fact that a significant proportion are newborn infants, while tragic in itself, would seem to be propitious for the Romanian adoption process, but in practice this is not happening. Although Law 57/2016 requires the authorities to declare abandoned children legally adoptable after 6–12 months, depending on circumstances, over a year later, this step had been taken in relation to only 1.5% of the children in institutions.

15.2.1.3

Abortion

Ceau¸sescu’s policy on family planning was uncomplicated: the more children, the more hands would be available to build a strong socialist economy. He began in 1966 with Decree 770 criminalising abortion (except in particular circumstances) and continued with a ban on contraception, with tax penalties on childless couples and awards for mothers who produced several children. Unfortunately, in the short term more children meant more mouths to feed in what was one of the more impoverished countries in Eastern Europe, leading to large scale abandonment of children and overflowing orphanages. Another consequence of the ban on abortion was that Romania acquired the reputation of having the highest maternal mortality rate in Europe.13 Fear of dying in childbirth, or surviving but being unable to afford to feed their babies, or simply the 10 Annual statistics: 2014, of 1213 children abandoned in hospital units 738 were newborn babies; 2015, 624 abandoned children were infants; 2016, 714 were infants; in 2017, of 804 abandoned children, 573 were infants; and in 2018, of the 751 abandoned children about 70% were infants. 11 See, further, at: https://balkaninsight.com/2019/07/24/home-alone-romanian-children-left-bymigrant-parents/. 12 See, for example, ‘Trafficking in Persons for Begging: Romania Study’, at: https://ec.europa.eu/ anti-trafficking/sites/antitrafficking/files/trafficking_in_persons_for_begging_-_romania_study_0. pdf. 13 The 2019 Terre des hommes report Child Rights Now! Romania, op cit, found that the mortality rate of babies at childbirth was still an alarming 7 out of every 1000.

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prospect of living with the stigma of being a single mother, drove many women to seek illegal abortions. In the immediate post-Ceau¸sescu years there was a surge in the number of abortions (899,654, or a rate of 177.6 per 1000 women, in 1990)14 which tapered off in the following 3 decades (58,238, or 10.1 per 1000 women, in 2017) to reach the current situation where although abortion is legal15 it is becoming steadily more difficult to access; nearly one third of Romanian hospitals—often for religious reasons—now refuse to conduct such procedures.16 Whether or not this exacerbates the ongoing problem of unwanted children being abandoned and a consequent increase in adoption remains to be seen.

15.2.1.4

Assisted Reproduction Services

Romania had a high, if forced, fertility rate during the Ceau¸sescu era. From 2002 that rate continued an upward trend, peaking at 1.66 children per woman in 2009, after which the total fertility rate experienced a marked decline until 2013. Currently, at 1.52, the Romanian fertility rate is close to the European average (1.58).17 Romania remains one of six of 43 European countries that have yet to introduce specific legislation to regulate assisted reproduction techniques.18 The need for such regulatory measures was illustrated by the circumstances examined by the ECtHR in Nedescu v. Romania19 which concluded with a ruling that the manner in which the Romanian judicial and administrative authorities implemented and interpreted legal provisions concerning the seizure and storage of the applicants’ embryos breached their Article 8 rights. Affordability is a limiting factor in accessing treatment as this is not wholly part of national health public service provision, though IVF and embryo transfer procedures are partially publicly funded. As has been stated: “Romania needs a coherent public policy in order to financially support couples that want to have a child”.20 In the

14 See, Remez, L., ‘Romanian Maternal Death Rate Fell by Two-Thirds after the 1989 Revolution’, Family Planning Perspectives, Vol. 27, (1995), at p. 263. 15 The new Penal Code 2014, now regulates abortion procedures. 16 See, further, at: https://theblacksea.eu/stories/quarter-hospitals-romania-are-refusing-legal-aborti ons/. 17 See, further, ESHRE, ‘A Policy Audit on Fertility: analysis of 9 EU Countries’, (March 2017), at: PolicyAuditonFertilityAnalysis9EUCountriesFINAL16032017.pdf. 18 Others being Albania, Bosnia and Herzegovina, Ireland and Ukraine. See, further, at: https:// www.eurekalert.org/pub_releases/2020-02/esoh-emt020320.php. 19 Application No. 70,035/10, (2018). 20 SOS Infertilitatea patient association, Romania, July 2016.

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absence of any such policy, such couples are more likely to turn towards the adoption process as offering the most feasible means of acquiring a family. Surrogacy Commercial surrogacy is practised but is unregulated in Romania,21 indeed the country has become a reproductive tourist destination for that reason.22 The law neither prohibits nor regulates surrogacy but the principle—mater semper certa est—is the governing rule. This is implied in the Civil Code which states that ‘human medically assisted reproduction with a third party donor does not determine a filiation link between the child and the donor’ and ‘maternal filiation results from the act of giving birth; it can also be established through recognition of court order’.23 Consequently, while couples have little trouble, other than the expense involved, in making surrogacy arrangements, they then have to initiate adoption proceedings in order to terminate the parental rights that remain inherently vested in the birth mother and thereby legally transfer those rights with the child to the commissioning prospective parents.24 In short, surrogacy generates adoption proceedings in Romania.

15.2.1.5

Increase of Children in Public Care

Against established trends in contemporary western nations, recent history in Romania records a steady decrease in the extent to which the state undertakes responsibility for children whose parents are unable or unwilling to do so. Unlike those other nations, however, Romania started from a high baseline, one raised by the Ceau¸sescu regime as it pursued a policy of encouraging ever larger families, producing children their parents could not afford and were forced to relinquish in their thousands to state institutions. In 2004, official statistics showed 82,918 children in CPS care but by 2018 that number had fallen to 52,783. According to NAPCRA, each year about 5% of children entering CPS care have been abused or neglected within their families, and removed from parental care, although the reported cases of child abuse or neglect are much higher.25 In 2018, there were 15,253 such cases reported but 12,248 children were kept within their families with special support and counselling services. Children left behind by migrant parents and others found to have been trafficked, add to 21 See,

further, at: https://www.nomaternitytraffic.eu/surrogacy-hearing-at-the-romanian-parlia ment/?lang=en. 22 Demény E., ‘Networks of reproduction: politics and practices surrounding surrogacy in Romania’, in Davies, M, (ed), Babies for sale: transnational surrogacy, human rights and the politics of reproduction, London, Zed Books, (2017), pp. 123–141. 23 Civil Code, Articles 441 and 408 respectively. 24 See, Hostiuc, S. et al., ‘Maternal filiation in surrogacy: legal consequences in Romanian context and the role of the genetic report for establishing kinship’, Romanian Journal of Legal Medicine, Vol. 24, (2016), pp. 47–51. 25 See, further, Popescu, R., Muntean, A. & Juffer, F, ‘Adoption in Romania: Historical Perspectives and Recent Statistics’, Adoption Quarterly, Vol 23(1), 2020, pp. 1–26.

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the numbers in state care. Once admitted to state care most children remain in the system until they reach 18 years of age (for longer if the child continue his/her studies (education) or for a limited period at the request of a child without any other form of social support).26 Moreover, they are likely to be shuttled from one care setting to another: because of the rule prohibiting institutional admission of children under three years age, they are instead often fostered until they reach that age and then pass through a succession of age group specific orphanages.27 The choice of care setting provided by CPS will depend upon the “individualised protection plan” that must be formulated for each child.28 Foster Care According to official statistics, the number of children placed in foster care decreased during 2004–2014 before gradually increasing from 36,638 in 2014 to 37,497 in 2016 and falling back to 35,687 in 2018. However, since 2014, the proportion of children placed in foster care slightly increased from 63% in 2014 to 67% in 2018. About half of the foster children were placed with foster parents employed by CPS and the other half with relatives, neighbours or foster families supported by a range of NGOs. For children placed in foster care, the adoption procedure can start following the first 6 months spent within the foster family. A recent case illustrates the difficulties that may then ensue. In June 2019 the interim general prosecutor requested the court to issue an order preventing an 8-year old girl, adopted by a Romanian couple in the US, from being removed from the foster family who had cared for her for the previous six and a half years, and from being allowed to leave the country with her adoptive parents.29 This was a case where, after many failed attempts, suitable Romanian adopters had been found in the US and on whose behalf the Court of Appeal had confirmed an adoption order, overturning the decision of the court of first instance. Faced with the foster carers refusal to part with the child, she was forcibly removed by the authorities. A year later the matter remained unresolved but the drama may well deter foster parents from undertaking care placements pending adoption. Residential Care Law 3/1970 for the protection of minors, promoted institutionalisation as the primary state strategy for ensuring the welfare of those children for whom parental care was, for various reasons, not possible. Children in state care were placed in and moved between different types of institutions depending on their age and level of development. Relationships between family members and child were not encouraged and many children placed in institutions for a temporary period especially due to 26 Author

acknowledges advice from Ana Muntean on this matter (note to author: 08.08.2020). further, at: https://www.romaniafaraorfani.ro/wp-content/uploads/2019/05/Raport_ ARFO_2017.pdf?fbclid=IwAR0C3M0kGBtZxojjGSDLI8dYxEEnHpo0fgoJGtaFR1S42bIsO E6SW5sNIQY. 28 As regulated by Law 272/2004. 29 See, further, at: https://www.romania-insider.com/general-prosecutor-girl-adoption-us. 27 See,

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family’s poverty were ultimately abandoned by their parents. By 1991 a UNICEF Report noted that 142,000 to 200,000 children (4% of Romania’s child population) were living in 628 residential care institutions.30 Since the collapse of the Ceau¸sescu regime, Romanian policy has been one of trying to reverse this institution/family care balance while also promoting domestic adoption—if not ICA—as being an appropriate means to secure family life for children in state care. In 2004, 39% of the children in the public care system were institutionalised. By 2018 this had dropped to 32.38%. In 2016 of the 56,866 children in care (‘the special protection system’) 19,369 were in a residential placement. In 2018, the corresponding figures were 55,302 and 18,197. Placements of children within institutions run by NGOs similarly diminished; those within private units stayed around 20%, slightly increasing from 18.97% in 2014 to 20.44% in 2018.31 It might be noted that some of these NGO facilities are owned and staffed by independent religious bodies that have an ethos not necessarily conducive to moving children on to adoption. For some years there have been several hundred children aged 2 years or less in institutional facilities; a matter on which the UN Committee on the Rights of the Child expressed its concern in the fifth periodic report in 2017.32 The numbers institutinalised in this age group have been steadily falling: in 2014 there were 628 in public or NGO institutions; in 2015, 585; in 2016, 459; 443 in 2017; while in 2018, 405 children aged up to two years were placed in institutions.33 Although decreasing, such numbers would still seem to be wholly contrary to legislative provisions introduced in 2014 which forbade placement in institutions for children aged up to three years. Placed for Adoption When an unmarried mother anonymously relinquishes her newborn infant without any further contact, and no relatives can be traced, then 12 months later—6 months in some circumstances—that child is regarded by CPS as suitable for adoption. The status of all children deemed “adoptable” must be confirmed by the issue of an “irreversible court decree”.34 CPS then has 30 days from certification, to identify prospective adopters.35 Given the number of such infants relinquished annually, the absence of any legal complications regarding parental rights, and the number of approved adopters on the waiting list, it might be thought that speedy adoption placements would ensure that no infant lingered long in institutional care and all would be assured of family based care. This has not proven to be the case. In 2017, 30 See, Hines, J. R., Kessler, S., & Landers, C., Children in institutions in central and eastern Europe

and a first look at alternative approaches, Florence, UNICEF, International Child Development Center, (1991), [Google Scholar]. 31 Placements of children within institutions run by NGOs diminished as follows: 4087 in 2014; 3895 in 2015; 3907 in 2016; 3705 in 2017 and 3496 in 2018. The percentage of children institutionalized within private units stayed around 20%, slightly increasing from 18.97% in 2014 to 20.44% in 2018. 32 CRC/c/ROU/CO/5, (July 2017). 33 See, NAPCRA, n.d. 34 Law 273/2004, Article 23. 35 Law 273/2004, Article 26.

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there were 3257 adoptable children and 2652 approved adopters but ultimately only 1251 children were adopted. The delays built into the process obstruct their adoption.

15.2.2 Resulting Trends in Types of Adoption The Romanian adoption process, which was clearly broken in the years that followed the collapse of the Ceau¸sescu regime,36 has not yet been repaired to the point where it functions in harmony with the needs of Romanian children, the values of Romanian society and the principles established by international law. It is not streamlined, is poorly regulated, it excludes a large proportion of those whose needs it was designed to meet, and all too often the parties are timed out. Many prospective approved adopters—both domestic and international—never reach the matching stage, they lose their accreditation status and have to begin the process again. Their frustration is paralleled by the experience of the very many children available for adoption but who remain and grow up within the child protection system. The process is an inappropriate response to the impact of poverty, assists political avoidance of accountability for that poverty and fails to address the resulting trauma and loss suffered by countless numbers of birth parents.

15.2.2.1

Third Party Adoptions

Since the moratorium imposed on international adoption in 2004, both domestic and international adoptions remained relatively stable, with about 1000 domestic adoptions and hardly any international adoptions each year. The number of children eligible for domestic and international adoption decreased between 2014 and 2017, while the number of parents approved for adoption increased. However, each year fewer children were actually adopted than the number eligible and available. Domestic As stated, since the 2004 moratorium, domestic adoptions have remained relatively stable at about 1000 each year. More recently, the number of children eligible for domestic adoption have decreased. It has been suggested37 that the reasons for this are to do with: the decreasing number of infants in CPS care; the impact of the intensive migration of Romanians on the population of potential adoptive parents; the frequent changes in adoption law which require time for implementation; the focus of CPS personnel being on the improvement of shelter conditions for children rather than on adoption and moving the children out of CPS; the unfulfilled needs of practitioners 36 See, further, at: https://www.nytimes.com/1991/03/24/magazine/the-romanian-baby-bazaar. html. 37 Popescu, R., Muntean, A. and Juffer, F., ‘Adoption in Romania: Historical Perspectives and Recent Statistics’, Adoption Quarterly, Vol. 23, Issue 1, (2020) at: https://www.tandfonline.com/doi/full/ 10.1080/10926755.2019.1665602.

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in adoption for training and professional support, including supervision; for siblings it is difficult to find adoptive parents; and, the unrealistic expectations that parents often have. In particular, it has been pointed out that between 2014 and 2017 more than half of the adoptable children were aged between 7 and 17. Such an age cohort would be defined as ‘hard to place’ for adoption purposes in any country. Child Care and Protection Despite amendments to Law 273/2004, intended to broaden the range of eligible domestic adopters, the number of annual adoptions both domestic and international from the CPS system has remained consistently low. In 2016, for example, only 788 children were adopted—a mere 1.3% of those in the system—the second-lowest number on record since at least 2000.38 The law gives priority to foster parents if they decide to adopt a child placed with them by CPS but this seldom happens. There are no available statistics to reflect the incidence of children adopted by the foster care family. A recent study done by UNICEF in Romania found that children stay an average of 5.5 years within CPS until the adoption process starts.39 The high proportion of young infants among the children abandoned clearly provides an opportunity—and a need—for prompt adoption placements, which might be expected to increase the rate of adoption. However, in practice many children aged below two years of age can still be found in institutions. The 2015 revision of Law 272/2004, prohibiting the placement of children aged less than three in institutions and encouraging their placement in families, has not affected the inertia in the system. In the absence, so far, of any significant growth in domestic adoption capacity the policy decision to terminate ICA would seem to be leading to a larger proportion of the child care population remaining in state care. Children with Special Needs The history of the adoption of special needs Romanian children is, in reality, part of the history of Romanian ICA. Domestic adoption has never made much impact on the large numbers of physically and/or mentally impaired children in institutional care. Intercountry In 1989, at the end of the Ceau¸sescu era, in a context where international adoptions were increasing generally, Romanian orphans suddenly became a particular focus of attention.40 Facilitated by Law 11/1990, Romanian ICA became industrialised: in an eight-month period, some 4491 children were adopted internationally.41 By 38 See,

ARFO Annual Report for 2018.

39 Stanculescu, M. S., Grigoras, V., Tesliuc, E., & Pop, V.,’ Romania : Children in public care 2014’,

the World Bank and UNICEF, Bucharest, Alpha MDN Printing House, (2017). See, further, at: https://www.unicef.org/romania/reports/romania-children-public-care-2014. 40 Selman, P. , ‘From Bucharest to Beijing: Changes in countries sending children for international adoption 1990–2006’, in Wrobel, G.M. & Neil, E. (eds.), International Advances in Adoption Research for Practice, (2009), pp. 41–69, New York, NY, Wiley. 41 Johnson, A. K., Edwards, R. L., & Puwak, H., ‘Foster care and adoption policy in Romania: Suggestions for international intervention’, Child Welfare, Vol 72(5), (1993), pp. 489–506.

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1991 Romania had become a major country of origin for internationally adopted children, with a total of some 10,000 adopted from institutions between 1990 and 2001, but in doing so had generated widespread concern regarding the unregulated role of competing adoption agencies, evidence of corruption, trafficking and of poor record keeping in respect of the many departing children. After a rise in international adoptions in the 1990s—and under pressure from the European Commission, the European Parliament’s rapporteur for Romania and children’s rights advocacy organisations42 —a moratorium was imposed in 2001, and again in 2004 (with effect from January 1st 2005) making international adoption virtually impossible.43 Between 2006 and 2012, there were no ICAs. In 2015 the law on adoption was changed, making international adoption possible once again, but only for Romanian citizens living outside Romania and for foreign citizens who are residents in Romania. It established the principle that international adoption is the option of last resort, restricted to grandparents living abroad, and only then after all efforts had been made to place the child with a Romanian family. Thereafter, the annual number of ICAs has remained low: 2015, 23; 2016, 19; 2017, 29; 2018, 41; and 2019, 22.44 Approximately, 89% of children eligible for international adoption have been between 7 and 17 years of age. Transracial In Romania, this aspect of adoption is more about mixed ethnicity—in practice Roma children being adopted by the non-Roma—than about mixed race. It is probable that any significant transracial dimension to Romanian adoption lies in the fact that Romanian children were quite often the deliberate choice of ICA Caucasian adopters opting for racial congruity to avoid any transracial complications that adoption from many other countries might bring to adversely impact upon their family/extended family and social life. Children from ‘Indigenous’ Communities In Romania, the Roma or Romani are a distinct ethnic group that have suffered historically from state policies of enforced integration. They have also had to endure Nazi persecution in Romania and victimisation elsewhere when their nomadic travels brought them into contact with the authorities in neighbouring European countries.45 The cultural disconnect between mainstream society and the parallel world of the Roma has often led to the latter being the subject of social work intervention on the 42 See, further, Iusmen, I., ‘The EU and International Adoption from Romania’, International Journal of Law, Policy and the Family, Vol 27, Issue 1, (2013), pp. 1–27. 43 Selman, P. , (2009), op cit. See, also, the Commission on Security and Cooperation in Europe, ‘In the Best Interests of the Children? Romania’s Ban on Intercountry Adoption’, CSCE 109–1–3, (Sept 2005), at: https://www.csce.gov/sites/helsinkicommission.house.gov/files/Official%20Tran script%20-%20In%20The%20Best%20Interest%20of%20Children%20Romania%27s%20Ban% 20on%20Inter-Country%20Adoption.pdf. 44 NARPDCA, (note to author 04.09.2020). 45 See, for example, Human Rights Watch, ‘Roma in the Czech Republic: Foreigners in Their Own Land’, Vol. 8, No. 11(D), June 1996.

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grounds that standards of housing, shared parenting and general lifestyle constitute child protection issues warranted the removal of children into state care and possibly on into the adoption process.46 They were found to be disproportionately represented in state orphanages on the collapse of the Ceau¸sescu regime. While there is undoubtedly an important Roma specific strand to the adoption experience in Romania it is unfortunately too complex a subject to be pursued at present.

15.2.2.2

First Party Adoptions

Romanian law, in a reaction to a policy favouring ICA in the immediate postCeau¸sescu years, now gives precedence to adoption by first party applicants over all others. The only ICAs currently processed are in respect of first party adopters. Step-Parents The practice of step-parent adoptions—one spouse adopting the child of the other spouse—was first introduced into Romanian law by Decree 182/1951.47 This no longer used. The Civil Code now specifies the requirements for step parent adoption. Kinship In establishing a match between prospective adopters and the adoptable child, preference is given to relative/s of the child in the extended family,48 if they can be certified as approved adopters. When a child is placed by CPS with a relative within the fourth degree of consanguinity, a domestic adoption process may only be initiated with CPS agreement that this is in the child’s best interests. The period legally allocated to locating and asking such relatives whether they want to assume the child’s upbringing (if the parents abandoned the child) has been shortened from one year to six months.49

15.3 Overview of Principles, Policy and Law Romanian law and policy relating to adoption have been largely shaped by two challenges: dealing with the plight of institutionalised children following the collapse of the Ceau¸sescu regime in 1989; and meeting the standards required for joining the EU in 2007. Central to both was—and continues to be—the problem of child 46 See, Chai, J., ‘Forced removal of Romani children from the care of their families’, European Roma Rights Centre, 21 July 2005, at: http://www.errc.org/roma-rights-journal/forced-removal-ofromani-children-from-the-care-of-their-families. 47 See, further, Jaffe, E.D., (ed.), Intercountry Adoptions: Laws and Perspectives of “Sending” Countries, Martinus Nijhoff, 1995, at p. 39. 48 According to Law 272/2004, Article 4 letter e, the extended family includes the parents, children and their relatives up to the fourth degree. 49 Law 273/2004, Article 26 para. 1 letter c, as amended by Law 57/2016, Article I.21.

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abandonment: its causes; the means of prevention; and finding a balanced response compatible with the welfare interests of the children concerned. Throughout the three decades that have now passed since the demise of Ceau¸sescu, law and policy have evolved under the umbrella of the Constitution and the Civil Code (which replaced provisions in the Family Code 1954), as revised in 2011.50

15.3.1 Adoption Principles and Policy From a position of having been precipitately catapulted into international adoption, coupled with an absence of any semblance of family support services, Romania has struggled with limited resources to build a modern, national, integrated child protection and adoption framework.

15.3.1.1

Principles

The essential principles underpinning the current Romanian adoption process are to be found mainly in Law 273/2004 which is the most formative piece of Romanian adoption related legislation. The Welfare Interests of the Child As a party to both the UN Convention on the Rights of the Child, and to the Hague Convention on Intercountry Adoption, Romania is obliged to ensure that the adoption process gives effect to and promotes the welfare interests of all children who enter it. This principle, ostensibly governing all procedures involving children, is declared in Law 273/2004, Article 2(a), and regulated by Article 263 of the Civil Code. The latter states that for a child placed with a relative up to the fourth degree, the individualized protection plan may result in domestic adoption only if the case manager appreciates it is in the minor’s best interest to initiate the adoption procedure.51 The principle was at the heart of the 2004 moratorium on ICA, but in an ambivalent role, deployed by both sides of an essentially political argument as to whether a continuation of international adoption would promote or impair the welfare interests of the Romanian children involved. That ambivalence continues to paralyse ICA and has also come to permeate the adoption process more generally but perhaps particularly in relation to the parental veto as regards the adoption option for children

50 See, the Civil Code, Book II: ABOUT FAMILY, TITLE III: Kinship, Chapter III: Adoption, Articles

451–482. 273/2004, Article 27 para. 1, as amended by Law 57/2016, Article I.22.

51 Law

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otherwise left to age out of institutional care and the disclosure of birth family information to adoptees. Family Based Care The drive to de-institutionalise children in CPS care and place them where possible in a family based setting is now a governing principle. Priority for Domestic Adoptions For some years the prevailing strategy to—wherever possible—keep Romanian children in Romania has been rigorously pursued. In the absence of any significant growth in the pool of certified approved adopters, this strategy is arguably resulting in many children—particularly those with special needs—not being offered the opportunity for sustainable, permanent family based care. Siblings Placed Together The principle that siblings should not be separated is legally stated in Law 273/2004, Article 6(1), as a fundamental rule of the adoption process. Openness Romanian adoption is of the ‘closed’ variety. There is no provision for any form of contact between the birth parent/s and adopters nor for any mutual exchange of, or of access to, each other’s personal information.

15.3.1.2

Policy

In the aftermath of the trauma inflicted by the Ceau¸sescu regime, incidentally including a ban on both social workers and psychologists, Romania had to construct a child protection service that until then had offered little more than warehousing for the many tens of thousands of children abandoned by their impoverished parents and families. The subsequent journey from de-institutionalisation, via international adoption, to the present spectrum of provision—that includes family support, foster care and domestic adoption—while bumpy, has been accomplished in a relatively brief period and resulted in a credible modern public child protection system. Due to internal and external pressures at the turn of the century, the adoption dimension to policy and practice had necessarily, perhaps, been treated as a ‘stand alone’ area that demanded attention and resources. Three decades after the fall of Ceau¸sescu it is possible that Romania has now established more independence and control in respect of those pressures. The situation is stabilising and although still handicapped by poverty and poor socio-economic circumstances, a balanced policy towards families in need, child protection and adoption is now more firmly in place.

15.3 Overview of Principles, Policy and Law

15.3.1.3

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Adoption Alternatives

Again, like South Korea, the standard default for adoption is for a child to remain subject to guardianship and to be in long-term care in one of the many orphanages or, increasingly if slowly, the prospect of family based care in a foster home is becoming more feasible.

15.3.2 Contemporary Adoption Related Legislation Until 2004, and the introduction of Law 273/2004, Romania did not have any adoption specific legislation. Indeed, even after 2004, there continues to be an overall lack of coherence in the laws relating to child protection, child health care and adoption.

15.3.2.1

The Statutory Framework

Successive, issue specific statutes establishing new rules and procedures, rather than formative legislation anchored on clearly stated principles, would appear to be the approach favoured by the legislature.52 However, as Rebeca Popescu points out, Law 273/2004 together with Law 272/2004 have now brought together a body of principles and rules has given adoption law more overall coherence.53 Government Decision No. 448/2017 Adopted in 2015, this declaration relies on the provisions of Article 92(2) of the Law 272/2004 on the protection and promotion of children rights. It purpose is to regulate the conditions that need to be complied with to ensure the protection of children in certain circumstances and in that context it also regulates the administrative procedure by which adopted persons can obtain information regarding their origins. Law 57/2016 Amending and supplementing Law 273/2004, the primary legislative intent was to speed up legal recognition for the status of ‘adoptable child’. Indeed the overall legislative intent would seem to be aimed at reducing the delays which have crippled the adoption process in recent years. Laws 131/2014 and 299/2014 The first directs that children aged 0–3 should be placed within a family environment, meaning either with: full time foster parents who are paid, trained, approved, and supervised by CPS; foster families trained and paid by NGOs; and relatives or neighbours who decide to take care of the child and who receive a small allowance to cover 52 Information

on adoption legislation available at: http://www.copii.ro/categorii_legislatie/nation ale/. 53 Note to author: 08.08.2020.

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the child’s needs. It makes an exception for children with disabilities who could be placed within institutions with specialized care and requires that siblings be placed together. The second established the National Authority for Protection of Children Rights and Adoption (NAPCRA), which is tasked with monitoring the observance of children’s rights and with taking all measures to ensure their protection by coordinating the involvement of local and central public administration authorities, civil society, parents and children. Law 233/2011 International adoptions were re-established by this law but restricted to Romanian citizens living abroad and their spouses. It also introduced significant changes to improve domestic adoption procedures, amended Law no. 273/2004 on the legal status of adoption and came into effect in 2010. Law 287/2009 As cross-referenced with the Civil Code, Article 457 prohibits: adoption between siblings, irrespective of sex; the adoption of two spouses or former spouses by the same adoptive parent or adoptive family; and adoption between spouses or former spouses. Laws 272/2004 and 273/2004 These two laws established the procedures and governmental structures responsible for child protection and adoption. Law 272/2004, on the protection and promotion of children’s rights, governs the obligation to draw up an individualised protection plan for any child admitted to CPS care (to stipulate adoption where appropriate) and imposes a mandatory obligation on professionals to report any form of violence against a child. Law 273/2004, last amended in 2016, banning all international adoptions and the institutionalisation of children less than two years of age, was passed in response to allegations made by the European Reporter for Romania in the process of Romania’s preparations to join the European Union.54 One of the more important aspects regulated was related to abandoned children’s legal relationship with their birth parents. As amended by the Government Decision 448/2017, this law provides for the right of adopted persons to know their origins and to access information regarding their history. The Romanian Office for Adoption (ORA) was established as a specific governmental body focused on adoption at the national level and later absorbed into NAPCRA, through Law 299/2014, as mentioned above. Government Decision No. 1441/2004 Authorizing foreign private organizations to carry out activities in relation to international adoption, this decision was subsequently amended by Law 57/2016. Ordinance No. 121/2001 Introduced to pave the way for Romania to join the EU, the Ordinance suspended all international adoption procedures. 54 See,

Kang, T., ‘Breaking the myths on intercountry adoption in Romania’, Regent Journal of International Law, Vol.10, (2014), pp. 131–150.

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Law 2013/2000 Further to Romania’s ratification of the International Labour Organization Convention no. 182/1999 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, this law is intended to ensure proper protection for children against exploitation through labour in various circumstances. It established the so-called ‘moratorium’. Law 108/1998 Basically this established a new child protection system, including a Child Protection Commission responsible for protecting children from abuse and neglect, supporting families, and for placing children in families instead of institutions. Law 87/1998 This established that domestic adoption was to be given priority over ICA. Ordinances 25 and 26/1997 Abrogating Law 3/1970, these emergency ordinances initiated a new structure for child protection and adoption. The legislative intent was to promote deinstitutionalisation by setting up new kinds of services, mainly family-type homes and foster families, while also allowing for adoption. Law 47/1993 This stipulated that a child resident in a social or medical institution or in a private institution would be pronounced abandoned by the court if the parents showed no interest in the child for a period of 6 months. Law 48/1991 This established two new governmental structures designed to protect children and regulate the adoption of children: the Commission for Child Protection and the Romanian Committee on Adoption. Law 11/1990 This statute abrogated Articles 73 and 74 of the 1954 Family Code. Introduced in the immediate aftermath of the fall of Ceau¸sescu, it sought to address the problem presented by many tens of thousands of institutionalised children in need of immediate alternative care by facilitating international adoptions. The authority to determine adoption applications was transferred from the Guardianship authority to the courts. Law 3/1970 Ostensibly for the protection of children, this statute promoted institutionalisation as the key means of protecting children left without parental care: nurseries (for infants aged 0–3); children’s homes (according to age and gender), hospital homes (for those with special needs), and re-education centers (for juvenile offenders).

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15.3.3 International Law In the years following the fall of Ceau¸sescu, Romania incorporated a number of significant international instruments into its domestic law. Those most relevant to adoption include: the Hague Convention on Child Protection and Cooperation for International Adoption (Law 84/1994); the European Convention on Child Adoption (Law 15/1993); the UN Convention on the Rights of the Child (Law 18/1990). Others with varying relevance that have been ratified by Romania are: the Charter of Fundamental Rights of the European Union; the European Convention on the Legal Status of Children Born out of Wedlock; The Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. It is also a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (see, further, Sect. 4.4). Having joined the EU in 2007, Romania has consistently been at the forefront of countries signing up to international human rights treaties, conventions and other instruments. It was, for example, one of the first to ratify the UN Convention on the Rights of the Child and the Hague Convention on Intercountry Adoption. However, abiding by and enforcing the terms of the obligations entered into has been a consistent problem.

15.4 Regulating the Adoption Process The Romanian adoption process is consensual: as stated in Law 273/2004, Article 14(1), “The child’s biological parents must give their consent for adoption”. It is restricted to ‘full’ adoptions; the ‘simple’ or customary form, which was once recognised in the Family Code, is no longer part of the national law. Establishing the mechanisms necessary for regulating the adoption process has been central to that journey.

15.4.1 Length and Breadth of Process The Romanian adoption process has the distinctive characteristic—not unlike that of the UK—of being subject to an explicit timeline that determines the time lapse between each stage; arguably, this allows for delay to be built into the process. However, the legislative changes introduced in 2016 have done much to correct that problem by simplifying the procedures and shortening their cumulative length. The adoption process is now governed by Law 273/2004, as amended by Law 57/2016, and the regulations stipulated in Book III—General provisions on non-contentious procedures of the Romanian Civil Procedure Code—as amended.

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15.4.2 Role of Adoption Agencies and Other Administrative Bodies Law No 273/2004 on the Legal Status of Adoption, republished in 2012 and amended by Law 57/2016, consists of ten chapters—each dealing with a specific regulatory segment of the adoption process—and a total of 99 articles.

15.4.2.1

The National Authority for the Rights of Persons with Disabilities, Children and Adoptions (N.A.R.P.D.C.A.)

This body was established in 2019. Its predecessor, NAPCRA, was established in 2004 by Governmental Decision 1432/2004. In 2014, NAPCRA merged with the Romanian Office for Adoption as a consequence of Governmental Decision 299/2014. NARPDCA is accountable to the Ministry of Labour and Social Protection Central Authority NARPDCA is the Central Authority for Romania. Its main functions include: monitoring, and ensuring compliance with, application of the adoption regulations; harmonising the domestic adoption legislation with the norms and principles established by international treaties and conventions; authorising foreign Romanian and private bodies to perform adoption related activities; post-adoption monitoring of domestic and international adoptions; forwarding requests for court authorisation to access adoption records; certifying that adoptions have been approved according to the rules imposed by the Hague Convention; maintaining a central archive of all approved adoptions; and supporting adoptees who wish to learn about their origins by collaborating with other public or private legal entities. The General Directorate for Social Assistance and Child Protection The Directorate has a wide brief at county level for protecting vulnerable groups and for related social service provision which includes measures to safeguard the welfare of children. At a local level it co-operates with the Department of Adoptions and Post-adoptions (SPAS) for matters relating to the adoption process.

15.4.2.2

Adoption Agencies

In the closing decade of the twentieth century, of the many thousands of children the subject of international adoptions some were blatantly trafficked. Adoption agencies were among the intermediaries engaged in the marketing of children at competitive prices on behalf of those who could afford the youngest and healthiest of the children available. Not until the launch of the Child Protection Department in 1997 did Romania begin to acquire some control over the cavalier practices of competing private adoption agencies and ICA in general. Law 273/2004, Article 69(1), specifically and unequivocally addresses this issue “the participation of private institutions

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in the international adoption procedure that takes place in Romania is forbidden”. All adoption agencies are now subject to NARPDCA regulatory controls and monitoring.

15.4.3 Role of the Determining Body While the Romanian adoption process has a substantial administrative dimension it is determined by the judiciary: at the first stage, the court rules on whether or not a particular child satisfies the eligibility criteria to be conferred with the status of “adoptable”; and at the second, it determines whether an adoption application can be confirmed.

15.4.4 Registrar General The national system of registration for births, deaths, marriage and divorce was first introduced in 1865. All adoptions must be registered in the local town hall. The Government Decision No. 448/2017 facilitates adoptee access to registered data.

15.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria The process for becoming an adoptive parent, governed by Law 273/2004, starts with the request of prospective adopter/s to the local CPS office. During the following 90 days, the individual or couple will be assessed and trained in child protection and childcare topics by CPS staff and those approved will be certified as suitable to adopt. This must focus on55 : (a)

(b) (c) (d)

the personality, health condition and the economic situation of the adopter or of the adopting family, the family life, living conditions, and the capacity to educate a child; the reasons for which the adopter or the adopting family wish to adopt; the reasons for which, if only one of the two spouses files a petition to adopt a child, the other spouse does not join up the petition; the obstacles of any kind which are relevant to the capacity to adopt.

Such certification of approval is not mandatory for step-parent adopters.56 Both domestic and international adoptions are restricted to children who have been declared adoptable by court order and who are listed on the National Register 55 Law 56 Law

273/2004, Article 19. 273/2004, Article 20(b).

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for Adoptions kept by NARPDCA which also contains a list of certified approved adopters. The responsibility for matching an “adoptable child” with a certified adopter—or approving a domestic match already made as a consequence of particular circumstances—falls to the Department of Adoptions and Post-adoptions.

15.5.1 The Child The list of adoptable children is regularly updated by NAPCRA on the basis of statistics reported by CPS operating in 41 counties in Romania and six sectors of Bucharest. A child’s name will remain on that list until their 14th birthday after which they will only be considered “adoptable” in particular circumstances. A child may only be legally deemed “adoptable” after a full year of being in the care of the CPS without any form of contact being initiated by the birth parent/s or relatives; though a recent amendment to Law 273/2004 allows the adoption procedure, in some cases, to commence 6 months after registration with CPS.57 For newborn babies abandoned in maternity hospitals, and whose relatives cannot be located, the procedure for becoming suitable for adoption can begin 30 days after issue of their birth certificate. For adoptable children placed in foster care, the adoption procedure can start following the first 6 months spent within the foster family. In practice the waiting time for adoptable children is much longer than these timescales suggest. A recent UNICEF study found that on average a child waited for 5.5 years in CPS care before their adoption process commenced.58 A child eligible for adoption must first be made available to domestic adopters and will only become available to international adopters after being on the Adoption Register for at least two years without any request from Romanian applicants. Given the high incidence of adolescent pregnancies and the respect that marital status attracts in this society it is to be expected that by far the majority of those entering the adoption process are relinquished or abandoned by unmarried birth parents. To be eligible for ICA, such children will be at least three years of age and have special needs due to age or disability. Consent A child aged 10 years or older cannot be designated as “adoptable” unless he or she has given their consent.

57 Law

273/2004, Article 26 para. 1 letter c, as amended by Law 57/2016, Article I.21. M. S., Grigoras, V., Tesliuc, E., & Pop, V. Romania: Children in Public Care 2014, World Bank and UNICEF, Bucharest, Alpha MDN Printing House, (2017). See, further, at: https:// www.unicef.org/romania/reports/romania-children-public-care-2014.

58 Stanculescu,

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15.5.2 The Birth Parent/s The Romanian adoption process is in principle consensual but in practice is often driven by poverty. Children are most often voluntarily relinquished, or abandoned, or even removed from their family home, but this is very largely because birth parents lack the means and are left without the social support systems necessary to care for their children. In circumstances where parental rights have been judicially removed on the grounds of abuse, neglect, or other conduct causing serious harm to the welfare of their child, the parents retain the right to consent, or refuse to consent, to the adoption of that child.59 In such cases, guardianship responsibilities will have been judicially vested in a person or institution—such as CPS—and their consent—in addition to that of the birth parent/s will be necessary for the adoption to proceed. Where the application is in respect of the child of the applicant’s spouse—a step-parent adoption—then a certification of approval as an adopter is not required.60

15.5.2.1

Unmarried Mother

Parental consent is only valid if given at least 60 days after the birth of the child and is retractable for the next 30 days. There is now a legal requirement that the birth parents or their legal representative be counselled prior to giving consent.

15.5.2.2

Unmarried Father

The consent of a birth father—whether married or not—is a legal requirement for the adoption of his child.

15.5.2.3

Failed Parental Rehabilitation

Romanian law requires steps to be taken for the re-integration of a child within their birth family, or integration in the extended family, before he or she can be considered as a subject for the domestic adoption process. In practice, however, there would not appear to be any specification for the content of such steps, for the professionals responsible, nor of the resources and the time period for undertaking what would be a significant challenge.61 Unless the child was registered as one whose parents were unknown, he or she may only be considered for adoption—firstly domestically then internationally—in 59 Law

273/2004, Article 12(2). 273/2004, Article 20(b). 61 Rebeca Popescu points out that there is some specification in Laws 272 and 273 from 2004 and in NAPCRA ORDER no 45/2004. 60 Law

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one of the following circumstances: after a full year from the judicial ruling placing the child into the protective guardianship of the CPS, during which time the birth parent/s have initiated no form of contact with the child; or after six months when all steps to prompt such contact have been tried and failed; or after 30 days have passed since the birth paren/s signed a written statement of relinquishment which they did not retract.

15.5.3 The Adopters: Eligibility and Suitability Criteria According to Law 273/2004 an adoptive parent must submit evidence testifying to their being: without a criminal record; free of psychiatric illness; emotionally and materially stable; and not having abandoned a child or placed one in an institution. The child may be adopted by a married couple or by a single person as long as the applicant has “full capacity to exercise their rights” and is at least 18 years older than the adoptee62 : exceptions may be possible in certain circumstances but in no circumstance can the age difference be less than 15 years.63

15.5.3.1

Domestic Adopters

In order to broaden the potential pool of domestic adopters, amendments to Law 273/2004 permit adoption applications from a range of ‘other persons’ with whom the child enjoyed family life for at least 6 months (if this is not contrary to the child’s best interest) and who have approved adopter status. The term “other persons with whom the child enjoyed family life” is taken to include: the guardian, the professional caregiver, the foster person/family or other persons who have lived with the child, if they have been directly involved in the child’s care and education and with whom the child has developed a relationship of attachment.

15.5.3.2

Intercountry Adopters

As mentioned above, ICA is not possible unless all efforts to identify domestic adopters for the child concerned, over a period of one year since the first stage court decision, have failed.64 In addition to the above requirements, at least one applicant must be a Romanian citizen or be related to the adoptee or is the spouse of the birth parent of the adoptee.65 Romania will not accept ICA applicants with a

62 Law

273/2004, Article 9(1). 273/2004, Article 9(2). 64 Law 273/2004, Articles 39 and 52(2), as amended by Law 57/2016, Article I.37. 65 See, Court of Appeal of Bucharest, Decision 903/2005. 63 Law

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history of drug/alcohol abuse, or a history of pornography. There is a 30 day residency requirement for every applicant to allow time for bonding with a prospective adoptee. Single and Same Sex Adopters Single persons are eligible to adopt, on both a domestic and international basis, but same sex couples are not acceptable for either.

15.6 Pre-placement Counselling Law 273/2004, Article 14, requires the local authorities in the area where the birth parents live to provide counselling and information to the parents or, as the case may be, to the legal guardian, before they express their consent for adoption, and the authorities must submit a report to that effect. Article 17(3) places the same obligation on a local authority in respect of the child concerned if he or she is aged 10 years or older.

15.6.1 The Adoption Committee The Romanian Committee for Adoptions—responsible for maintaining a register of children eligible for adoption, matching and arranging domestic placements for them and designating others as suitable for ICA—was absorbed into NARPDCA. That agency now uses the Child Monitoring and Tracking Information System database (CMTIS) to collate and publish online data regarding children available for adoption. NARPDCA also maintains a register of those certified as approved adopters. Accreditation as an approved adopter is only valid for two years after which the prospective adopters have to re-apply and undergo the entire accreditation procedure again. It is intended to amend Law 273/2004 to extend the period of accreditation validity to 5 years but, as of 2020, this remains pending.66

15.7 Placement Rights and Responsibilities The legal importance attached to the rights and responsibilities taken to inherently vest in birth parents is such that the placement period with prospective adopters has in the past been fraught with uncertainty as, until the actual judicial hearing, there was always the possibility of the placement being terminated by a parental revocation of

66 See,

further, at: http://www.mmuncii.ro/j33/images/Documente/MMJS/Transparenta-decizi onala/31052018_Lege_modificare_Lege_273_23_mai_2018.pdf.

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consent. This is no longer a danger, following new legal provisions, and the placement period is now protected until the court rules on the adopters application.

15.7.1 Authority to Place The adoption procedure begins with the matching—drawn from the respective registers—of an ‘adoptable child’ with certified ‘approved adopters’. This is legally defined as a “preliminary stage to entrusting a child for the purpose of adoption, when the person/family certified as fit to adopt and which meets the particular needs of that child is identified and selected and the compatibility between child and the adopting person/family is established”.67 At the close of this period the prospective adopters initiate the second stage by applying to the court for an order finalising the adoption. Current practice does not permit contact between birth parents and the prospective adopters.68

15.7.1.1

Placement by Birth Parent

The ‘special’ adoption process, as regulated in accordance with Law 273/2004, as amended, does not make any allowance for placements made directly by the birth parent/s for the purpose of adoption. In the past, it is probable that such placements were made, particularly within the extended family.

15.7.2 Placement Supervision The above mentioned mandatory placement lasts for a minimum period of 90 days,69 “so that in case of approval for adoption the established family relationships may be rationally assessed”.70 Supervision will be the responsibility of the local CPS office and will require bi-monthly reports on the adopters family and the adoptee’s progress.71 At the conclusion of the trial period, a final report is submitted to the court designated to hear the adoption application.

67 Law

273/2004, Article 36, as amended by Law 57/2016, Article I.26. 273/2004, Articles: 37, para 2; 50, paras 2 and 3; and 52. 69 Law 273/2004, Article 28. 70 Law 273/2004, Article 40. 71 Law 273/2004, Article 31(1). 68 Law

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15.8 The Hearing Law 273/2004, Article 34, assigns the responsibility for determining an adoption application to the court which conducts a two-stage hearing similar to that in Japan (see, Sect. 18.8). 1st Stage An initial court hearing determines whether or not a child can be legally recognised as an “adoptable child”. If aged 10 years or older, the consent of the child concerned is a prerequisite for being so designated.72 As a consequence of Law 57/2016, if the birth parent/s fail to appear at two consecutive hearing dates, this is interpreted as their refusal to consent to the adoption, which has the effect of rendering the child adoptable.73 Once the irreversible decree is granted, parental rights and obligations are suspended,74 that status remains valid until the child reaches 14 years of age.75 The decree, however, lapses if after one year the department has not identified appropriate adopter/s for the child, and has not initiated the procedures necessary to conclude the adoption process. 2nd Stage Under Law 273/2004, Article 35, the applicant applies to the court for an order confirming that the minor is eligible for special adoption.76 The application is heard in chambers with the mandatory attendance of all whose consent for the adoption is required77 : representatives from the appropriate authorities; CPS, together with the birth parents; and the presence of the child is also compulsory if he or she is of ten years of age or older. The prosecutor is required to attend, as are the applicant adopter/s whose representative may also be present. The application is determined by court assessment of the birth parents care of the minor and ensuring their consent is available and valid (order for suitability of special adoption). At this stage the court will require full documentation in relation to the legal and health status of the child, including: birth certificate; birth and marriage (if applicable) certificates of birth parents; consent declarations given by birth parent/s or guardian; in an ICA application, the court will require an official statement to the effect that, despite all efforts within the prescribed period, the child could not be placed for adoption domestically. In relation to all applicants, the court will require the usual supporting documentation: birth and marriage certificates; police clearance; authenticated medical certificates; income statements; character references etc. In respect of domestic applicants it will also receive a certified declaration of status as ‘approved adopters’, and a copy of the Home Study report from the appropriate 72 Law

273/2004, Article 17. 273/2004, Article 8 para. 2, as amended by Article I.4 of Law 57/2016. 74 Law 273/2004, Article 23(3). 75 Law 273/2004, Article 29 para. 6, as amended by Law 57/2016, Article I.26. 76 See, also, the Child Welfare Act, s 33-6-2, 33-6-3. 77 See, further, Law 273/2004, Article 63. 73 Law

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authorities.78 In relation to ICA applicants, Law 273/2004, Article 44, requires the Central Authority of the receiving state, or its legally accredited and authorized organisations, to certify that: (a)

(b) (c) (d)

the adopter or the adopting family meet the adoption eligibility conditions and are suitable to adopt, in accordance with the applicable legislation of the receiving state; the adopter or the adopting family have received the necessary adoption counselling in the receiving state; a post-adoption survey of the child’s evolution is provided for a period of time of at least two years; and post-adoption services are provided for the child and the family in the receiving state.

Article 45 requires that the competent authorities also provide information regarding the applicants reasons for adopting a child from Romania, as well as information regarding any preferences they may have in relation to such children, and a document certifying that the adoptee may enter and permanently live in the receiving state.

15.8.1 Where Consent Is Available Law 273/2004, Article 11, requires consent to be available from: the birth parents; the spouse of a birth parent; the prospective adoptee if 10 years of age or older79 ; the applicant; and the spouse of the applicant.

15.8.1.1

Timing/Validity

Any retraction of parental consent must be made within 30 days.80

15.8.2 Where Consent Is Not Available Not all Romanian adoptions are consensual. In a small proportion of cases the court will grant an adoption application, despite parental opposition, on the grounds that the birth parent/s have been found to be abusive, neglectful or incapable to an extent that is seriously damaging to the welfare of the child concerned. Even where the birth 78 See,

further, Law 273/2004, Article 35(2). 273/2004, Article 64(2). 80 Halved from 60 days (Law 273/2004, Article 26 para. 1 letter d, as amended by Law 57/2016, Article 121). 79 Law

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parent/s initially say they do not want to raise and educate him/her, but later refuse to give their consent for adoption, the court will then rule the child to be adoptable.81 If, despite all efforts, one of the parents cannot be found to express his/her consent to the adoption, the consent of the other parent will be sufficient, and if both parents cannot be found, the adoption can be completed without their consent.

15.9 Thresholds for Exiting the Adoption Process In the absence of reported judgments it is virtually impossible to discover exactly how the judiciary determine adoption applications: what evidence is adduced; whether expert evidence is invited; how different principles are balanced etc. However, the usual rules apply: eligibility criteria to be satisfied; evidence of undue payments being made, or of consents being induced by improper means will invalidate the application.82

15.9.1 The Welfare Interests of the Child Law 273/2004, Article 37, unequivocally states that the court may only grant an adoption application if “it has concluded that the adoption is in the child’s best interests”. However the provision fails to define “best interests” or indicate how this is to be determined and applied. Apart from the hierarchy of adoption settings that are considered to reflect, in order of priority, the means for giving effect to the principle in general—birth parent/s, kinship, domestic and international—there are no legislative indicators, standards or benchmarks for identifying how the welfare interests of a particular child are to be identified and weighed in relation to other factors.

15.9.1.1

The Paramountcy Principle

As a signatory nation to UN CRC, Romania is bound by the paramountcy principle as stated in Article 21 but there is no explicit statement in domestic legislation of that principle and therefore no indication of the role it might play in adoption proceedings in relation to matters such as the refusal of parental consent or in determining the merits of an application.

81 Law 82 Law

273/2004, Article 26, para. 3, as amended by Law 57/2016, Article I.21. 273/2004, Article 70.

15.9 Thresholds for Exiting the Adoption Process

15.9.1.2

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Voice of the Child

Article 12 of UN CRC establishes the principle that children capable of forming their own views are entitled to do so on matters such as their proposed adoption, and to have those views taken into consideration. In Romanian law this principle is stated in Law 273/2004, Article 2(d), and conditional upon age and type of proceedings. In relation to choices as to custody, a child of 10 years of age or older is entitled to be heard by the court but in relation to their proposed adoption, this “shall not be approved without the consent of the child who has reached the age of 10 years old”.83 For example, in Pini and Others v. Romania,84 the court stressed that “the children’s constant refusal, after they reached the age of ten, to travel to Italy to join their adoptive parents, carries a certain weight in this regard”85 (see, further, Sect. 4.4.7.4).

15.9.2 Representing the Child’s Welfare Interests There is no legislative requirement for a child’s welfare interests to be given independent legal representation in adoption proceedings. Law 273/2004, Article 4, places a responsibility on the General Director of Social Assistance and Child Protection, in whose area the child resides, to offer the child information and explanations, according to their age and development, as to the stages of the adoption process, its effects, and also as regards the adopters, their family and relatives.

15.10 The Outcome of the Adoption Process There is no range of orders in public or private family law that provide any alternatives, allowing a judge to consider options—other than acceding to the application for adoption—that might offer a more appropriate means of addressing the welfare interests of a particular child.

15.10.1 Adoption Order The Family Code—Title III, Chapter III, Article 451—states that “adoption is the juridical operation that establishes the connection between the adopter and the

83 Law

273/2004, Article 17(2). EHRR 275. 85 Ibid., at para. 164. 84 [2004]

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adopter”. This is legally achieved by the court issuing an adoption order. The birth parents must be notified of this fact within 5 days.

15.10.2 Alternative Orders The default position, in the event of an adoption application being rejected, is the resumption of the child’s legal status; most usually this means that he or she is returned to the guardianship of CPS.

15.11 The Effect of an Adoption Order From the date when the adoption approval decree has become irreversible the legal relationship between the parties to the process changes permanently.

15.11.1 The Child The adoption order terminates the legal relationship between the child and his or her birth parents and between the child and all other members of their family of origin. Instead, as expressed in Law 273/2004, Article 50(2), “a filial relationship is established between the adoptee and the adopter through the adoption, as well as family relations between the adoptee and the adopter’s relatives”. Under Article 51(3), “the adoptee has towards the adopter all the rights and obligations which an individual has towards his or her biological parents”.

15.11.1.1

Name

As declared in Law 273/2004, Article 53(1), “through adoption, the adoptee acquires the last name of the adopter” and, under ss (3), at the request of the adopter or of the adopting family, and with the consent of the child who has reached the age of 10 years old, the court may dictate the change of the child’s first name. Arrangements are then made for registration with a new birth certificate which names the adopter/s as the birth parent/s.

15.11 The Effect of an Adoption Order

15.11.1.2

681

Citizenship

As stated in Law 273/2004, Article 50(5), the effects of ICA on the adoptee’s citizenship are those stipulated under Law 21/1991 on Romanian citizenship, re-published, with subsequent amendments and additions.

15.11.2 The Birth Parent/s As stated in Law 273/2004, Article 50(3), “at the moment of establishing the filial relationship through the adoption, the natural kinship between the adoptee and his or her descendants, on the one hand, and his or her biological parents and their relatives, on the other hand, ceases”.

15.11.3 The Adopters A singular characteristic of the Romanian adoption process is the explicit legal requirement that adopters “inform the child that he or she has been adopted, as soon as the child’s age and degree of maturity allow it”.86 They may request assistance in doing so from the Department of Adoptions and Post-adoptions, or from authorized private bodies.87 Moreover, the relevant authorities are required to file quarterly reports on the child’s progress and on his or her relationship with his or her adoptive parents, for at least two years after the adoption has been approved.88

15.11.4 Dissolution of an Adoption Order An appeal may be lodged within 15 days of the issue of an adoption order. An unusual characteristic of the Romanian adoption process is that it provides for an adoption order to be annulled or revoked. As regards the former, anyone who gave their consent to an adoption, or any other interested party, may apply to have the adoption annulled on the grounds that: an error occurred when the consent was given; a consent was forced or induced; the adoption is not in the child’s best interest; or the adoption proceedings did not meet, or violated, essential legal requirements. As regards revocation, regulated by the Civil Procedure, an adoptee, the adopter or the adoptive family can apply to the court to have an adoption revoked on the grounds of criminal acts such as attempted murder. An adoption can only be revoked at the 86 Law

273/2004, Article 52(1). 273/2004, Article 68(1), as amended by Law 57/2016, Article I.51. 88 Law 273/2004, Articles 38 and 49. 87 Law

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request of the adopter after the adoptee has attained full legal capacity even if the deeds were committed before this date. In total, some 4 orders have been annulled, and there is anecdotal evidence that a small number have been revoked, in the past 16 years.

15.12 Post-adoption Support Services Most Romanian adoptees have some level of health and/or social needs and their adopters, domestic and international, will require support and often professional assistance. Many birth parents would also benefit from counselling. However, the provision of appropriate and sufficient post-adoption support services remains largely aspirational in Romania.89

15.12.1 Adoption Support Services In recent years—more so since the 2012 moratorium on ICA—the authorities have invested in post-adoption support services for domestic adoptions in order to reduce the high rate of placement disruptions and strengthen their viability as an alternative to ICA. However, there is very little in the way of explicit legislative provisions to that effect, no specification of the range of services that may be available and no clear statement of entitlement to them. One significant support which is explicitly available is an entitlement to a funded “accommodation leave” of one year—equivalent to maternity/paternity leave.90 There would seem to be an expectation that the authorities will conduct postadoption follow up enquiries for two years or so, to ensure that the adopters’ are coping and that the child is making satisfactory progress, but it is uncertain whether this would necessarily trigger access to services should these be required. Information and counselling for children and adopters, guidance for those caring for children with particular health or psycho-social needs, and advice as to the availability of voluntary mutual support groups are usually provided, but therapeutic intervention for birth parents is a good deal less likely. The service providers are a mix of public authority and government funded voluntary bodies.

89 Groza, V., & Ryan, S. D., ‘Pre-adoption stress and its association with child behavior in domestic special needs and international adoptions’, Psychoneuroendocrinology, Vol 27(1–2), (2002), pp. 181–197. 90 Law 273/2004, Article 461, as amended by Law 57/2016, Article 1.35.

15.13 Information Disclosure, Tracing and Re-unification Services

683

15.13 Information Disclosure, Tracing and Re-unification Services The Government Decision No. 448/2017 regulates the administrative procedure by which adopted persons can obtain information regarding their origins; Article 52 of Law 273/2004 is also relevant.91 The National Authority for the Rights of Persons with Disabilities, Children and Adoptions (NARPDCA) assists persons seeking information surrounding their adoption and information regarding their birth parents. Currently, identifying information relating to the adopters/adoptees/birth parents or relatives is confidential and can only be disclosed with their consent unless otherwise authorised by the court. Persons under the age of 18 years may only receive identifying information if this is necessitated for medical reasons.92

15.13.1 Information Disclosure Adopted persons below the age of 18 who know they are adopted may request NARPDCA for information about their place of birth, institutional route and personal history, either directly or through their legal representative.93 This information is provided without revealing the identity of birth parents or other relatives and subject to the condition that the adoptee—whether domestic or international—participates in at least one counselling session, which confirms that he or she is emotionally stable. On confirmation of such results, NARPDCA takes steps to contact the birth parents and relatives. An adoptee who has attained maturity, may similarly request NARPDCA to issue a document certifying the adoption and clarifying whether filiation was established with one of his/her birth parents before the adoption. He or she may then request the local court or, if not domiciled in Romania, the Court of Bucharest, to authorise their access to the information available in any public authority regarding the identity of birth parents and relatives.94 The adoptee is also required to attend at least one counselling meeting to assess whether she/he is psychologically and emotionally balanced. On receipt of the adoptee’s request, NARPDCA will examine its own records to see if there is any matching request from birth parents or relatives for information regarding the adoptee and, if there is, will process both enquiries jointly. NARPDCA suggests that adoptees, birth parents and relatives may all benefit, should they so request, from counselling, as well as other activities aiming to prepare 91 Article 52(2). The adopters and the adoptee have the right to obtain from the competent authorities public records excerpts, which certify the occurrence, date and place of birth, but do not specifically reveal the adoption, nor the identity of the biological parents. 92 Law 273/2004, Article 52 paras (3) and (4). 93 Law 57/2016, Article 48. 94 Information regarding the documents that must accompany this application is provided in Law 273/2004, Art. 673 paras 1–4, as amended by Law 57/2016, Article I.50.

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them for an actual meeting between or to facilitate other forms of contact. It recommends that all adopted persons who already have information regarding the identity of their birth parents/relatives may also benefit from counselling.

15.13.2 Adoption Registers There are limits to the information available in relation to Romanian children subject to international adoptions in the late twentieth century. In fact, there are no records at all regarding the 16,041 known to have been adopted between 1991 and 1997.95

15.13.2.1

The National Adoption Record

Under Law 273/2004, Article 65(2), the National Adoption Record is required to include “information concerning the adopter or the adopting family, be they Romanians or foreigners, as well as information on children for whom the internal adoption procedure has been initiated, and on children for whom a court decree for entrustment in view of adoption or for adoption approval or annulment has been issued”.

15.13.3 Conditional Access Birth parents and/or relatives are entitled to have access to restricted information in relation to the adoptee: confirmation of the adoption, the year of the approval, the national or international character of the adoption; and information as to whether the adoptee is registered with the authorities as alive or deceased.96 This information may be supplied by NARPDCA to the birth parents or to relatives of adopted persons, without needing the express consent of the adoptee or, as the case may be, of the adopting person or family.

15.13.4 Tracing and Re-unification Services NARPDCA deals with origins enquiries. It supports the adopted person to exercise their right to know his or her origins and history and provides the birth parents and relatives with information about the adopted person, within the limits proscribed by Law 273/2004. 95 The true figure is believed to be nearer to 30,000 children. See, further, at: http://poundpuplegacy.

org/node/41930. 96 Law 273/2004, Article 674 para. 1, as amended by Law 57/2016, Article I.50.

15.13 Information Disclosure, Tracing and Re-unification Services

15.13.4.1

685

The Adoption Agency

Adoption information is archived within the relevant agency.

15.14 Conclusion The adoption process in Romania shares with that of South Korea the defining characteristic of functioning in a social context dominated by a permanent surplus of children—including many abandoned babies—available, but apparently not adoptable, many of whom are housed in orphanages. In what appears to be a determined policy to address this issue, the Romanian government has overhauled its child protection service in recent years, investing in the training and employment of a new cohort of professional social workers and directing them towards preventative intervention to stem the flow of children into the CPS system by mediation in families and thereby forestalling breakdown. Unfortunately, so far the increase in cases of child abuse/neglect indicates little success, but this may be just the immediate effect of more social workers and thus raised levels of detection. Constrained by a lack of domestic adoption capacity, Romania like South Korea reluctantly turned to ICA as an affordable mechanism for managing their child care dilemma. As its economy strengthened, both have in recent years sought to turn off the safety valve of ICA and restore national pride by generating sufficient domestic capacity to cope with the abandoned children problem. Arguably, many of the current characteristics of Romania’s adoption process are attributable to its failure to make this strategy work, leading to a back-up in the system and an incremental return to more children in orphanages and proportionately fewer in permanent family based care.

Part V

Contemporary Law, Policy and Practice in Asia

Adoption in an Asian context is different. This part considers the law, policy and practice in four specific countries—Korea, Japan, China and Russia—and also more generally in an Islamic context. It seeks to identify the characteristics of the law, policy and practice of adoption that differentiate the Asian jurisdictions both from those surveyed in Parts III and IV, and from each other. It draws from the experience of a range of countries (e.g. Indonesia, the United Arab Emirates, Pakistan, Iran and Jordan) to build a composite picture of the core legal functions of adoption in an Islamic context. The chapter on South Korea provides an opportunity to recount the beginnings of the modern phenomenon of intercountry adoption (ICA). The focus on the intriguing and emblematic distinctiveness of the social role of adoption in Japan highlights just how different adoptions can be. In China, the role of adoption is firmly politically defined which makes its policy initiatives singularly revealing for the purposes of this book. Finally, the new addition of Russia—arguably more of a European than an Asian jurisdiction—again illustrates just how susceptible adoption can be to direct political influence. Of particular interest is the fact that this part addresses the issues facing an ICA ‘sending nation’.

Chapter 16

The Adoption Process in an Islamic Context

16.1 Introduction The world of Islam encompasses many different countries and cultures. It spreads from North Africa, throughout that continent and the Middle East to include much of Asia, especially South and South East Asia. In addition to those countries that are almost wholly Islamic there are also many more with significant Muslim populations, including jurisdictions that feature in this book. In some countries, such as the Arabic nations, religion and government are closely intertwined to form an Islamic state. In others such as Turkey the government remains officially secular in the midst of a majority Muslim population. Some like Jordan and Tunisia, and to an extent Egypt, have evolved a modern codification of traditional Islamic teachings while others, notably Saudi Arabia, rely more exclusively on Shari’ah law.1 Then there some like Nigeria and Bosnia in which there are divisive tensions between secular and religious leaders. In short, the location of the Muslim population is not necessarily synonymous with Islamic culture, which in turn serves to indicate the dangers involved in making assumptions regarding Islamic law. The geography of Islam can be misleading. It can suggest a focus on Islamic law rather than on the law in countries with Muslim populations. Even where jurisdiction and religion coincide, as in the almost exclusively Muslim populated countries of Iran and Iraq, this does not lead to coherence in culture and law. As current events confirm, the basic schism between the Sunni and Shi’a Islamic traditions with their respective doctrinal schools (4 Sunni and 3 Shi’a) has endured for centuries; although Iraqi law seemed to successfully unite the Sunni and Shi’a rules, there is now a resurgenge of doctrinal differences. Moreover, in many countries the Muslim population retains 1 Shari’ah

is an Arabic word which comes from a root word meaning ‘a pathway for water’. There is no strictly static codified set of laws of Shari’ah. It is based on the Qur’an, then the Sunnah (i.e. the large collections of Hadith, the sayings and doings of Muhammad, as primary textual sources). These are supplemented by two major and much-contested methods of interpretation by specialist scholars, ijma (‘consensus’) and qiyas (‘analogy’) and centuries of debate, interpretation and precedent (as cited in Pilcrow Press at http://pilcrowpress.com/articles/?aid=04). © Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_16

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a residual affiliation to its pre-Islam culture and practice which does not always fit comfortably with Islamic law and affects, as we shall see, arrangements about adoptions. Often in African countries, for example, local or tribal customs can still exercise persuasive authority alongside the requirements of Islamic teaching. It must also be borne in mind that even Shari’ah law is not uniformly applied in accordance with traditional principles and to some degree is itself open to conflicting interpretations. As Menski comments “centuries of juristic debate have created a rich field of debate and interpretation, so that there is always at first a general statement about ‘the law’ and then quite often much room for debate and adjustment to socio-cultural reality”. 2 It is thus necessary, as he has said, “to cultivate an understanding of how Islamic law, as a religion-based legal system, manages to reconcile the doctrinal centrality of religious belief with its inherent plurality of socio-cultural manifestations”.3 However, Shari’ah law does govern matters relating to family life, a subject of central importance to Islamic culture and also to contemporary Muslim communities wherever they may be located. Islam places great importance on family relationships, parentage and lineage. Despite the doctrinal constraints, in practice it leaves much room for negotiation when it comes to the handling of children’s rights, and to adoption and foster care arrangements. In particular the relationship between parent and child is regarded as crucial. Adoption is one aspect of such family matters. Notwithstanding the above caveats regarding the difficulties inherent in defining ‘Islamic law’, this chapter examines the practice and process of adoption in an Islamic context. It does so by first recognizing that adoption is conceptualized differently in that context. Kafala,4 which means ‘to feed’, is the Islamic term that comes closest to depicting the relationship known elsewhere as adoption. It has been defined as “the commitment to voluntarily take care of the maintenance, of the education and of the protection of a minor, in the same way a [parent would do for a child]”.5 This interpretation is the one enshrined in Shari’ah law and in practice it accounts for most of the alternative family based care arrangements for children who cannot be reared by their birth parents. In addition, some Islamic states also provide for a statutory form of adoption, not dissimilar to that in other jurisdictions studied, which allows non-relatives to assume parental rights in respect of an orphaned or abandoned child.6 Further, some Islamic states are signatories to the Hague Convention which necessarily brings them, as sending or receiving countries, into contact with 2 Note

to author (03.08.20). W., Comparative Law in a Global Context. The Legal Systems of Asia and Africa (2nd ed.), Cambridge University Press, Cambridge, 2006, at p. 279. 4 Kafala is an Arabic legal term for a formal pledge to support and care for a specific orphaned or abandoned child until he or she reaches majority. A form of unilateral contract, it is used in various Islamic nations to assure protection for such minors, as these nations generally do not legally recognize the concept of adoption. But unlike adoption, kafala neither confers inheritance rights nor any right to use the grantor’s family name. 5 See, International Reference Centre for the Rights of Chiildren Deprived of their Family (ISS/IRC), ‘Specific Case: Kafala’, Fact Sheet No 51, (Geneva, ISS, 2007). 6 For example, Turkey, Indonesia, Somalia, Tunisia and Malaysia all provide a statutory form of adoption. 3 Menski,

16.1 Introduction

691

adoption as it is known in the common law world. The differences in interpretation are important and need to be taken into account when considering the law relating to adoption in an Islamic context. This chapter begins by exploring the social and legal background to the current use of adoption. It identifies the characteristics that differentiate kafala and statutory adoption and assesses their cultural significance. It notes the significant trends in modern adoption practice, considers the main elements of current policy and outlines the relevant legal provisions. The template of legal functions (see, Chap. 3) is then applied to track the workings of the adoption process, to highlight its distinguishing characteristics and to pinpoint the areas of jurisdictional difference. Unlike the other jurisdiction specific chapters, this one draws from the experiences of a range of Islamic countries in order to reveal the diversity of law and practice that constitutes adoption in an Islamic context.

16.2 Background Islam does not, strictly speaking, recognize the term ‘adoption’.7 In most Islamic states, adoption as it is known in western nations is thus at first sight impossible. Any process that purports to alter family genealogy, to change the authentic identity of an individual and potentially disadvantage ‘legitimate’ children, is generally frowned upon in Muslim culture. Adoption in particular is anathema as it involves the permanent and absolute transfer of parental rights to adoptive parents, a denial of ancestry and a falsifying of bloodlines. Kafala is the preferred alternative care arrangement as it leaves intact bonds with the biological family and associated genealogical status attributes. This is in marked contrast to the previously established approach in what are now Islamic states. Among pre-Islamic Arabs, for example, the adoption of an orphan or helpless child was a popular and moral practice whereby the adoptee was treated as a birth child, acquiring the adopter’s genealogy and name, all the rights of a legitimate son including inheritance and becoming subject to the prohibition of marriage on grounds of consanguinity. Typically, a man would adopt (tabanna, “to make one’s son”) any boy of his liking as son (mutabanna), declare it publicly, and the boy would become like a son to him, sharing the responsibilities and rights of his adopting family. The adoption was allowed despite the fact that the adopted son might have a known father and come from a known lineage.8 Such cases still occur today, particularly where stressful and dangerous life conditions, such as risk of starvation, suggest that an adoption arrangement would be in the child’s best interest. 7 See,

Mohammed Allahdad Khan v. Mohammad Ismail Khan (1888) IL10 All. 289, 340 where it was held that there was nothing in Islamic law similar to adoption as recognized in the Hindu System. 8 See, further, Pollack, D., Bleich, M., Reid, C.J., and Fadel, M., ‘Classical Religious Perspectives of Adoption Law’, Notre Dame Law Review, vol. 79. Issue 2, 2004, pp. 101–158.

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In the culture of many African countries, where Islam and tribal custom have an uneasy relationship, children continue to be exchanged among families for the purpose of adoption. Like the reciprocal transfer of brides from one family to another, these informal adoptive placements are meant to create enduring connections and social solidarity among families and lineages. This is not unlike traditional practice in the clan based social system that prevailed in Ireland (see, further, Sect. 1.3.3).

16.2.1 The Social Context Giving Rise to Adoption The traditional patriarchal culture embodied in Islamic law has, with varying success in different countries, resisted the value systems accompanying the socioeconomic modernization of the other jurisdictions studied. This patriarchal orientation resonates very strongly with the similar experience in feudal England and to some degree with that of modern Japan (see, further, Sects. 1.3.3 and 18.2). In some countries, such as in parts of Africa and the Middle East, where the authority of Shari’ah law and the mullahs have created near theocratic states—or states in which religious values tend to be placed above state-centric values—the social roles of women remain very constrained and the welfare of children is a matter largely left to be determined by their fathers in whom all guardianship rights are held to be vested. However, while the Muslim father alone holds guardianship rights, the mother may have custody of a small child i.e. her responsibilities are held under the father’s supervening authority. Further, as Menski has explained9 : The father may lose this right if he does not behave as a good Muslim father should do, for example if he does not maintain his own child. In such situations, the courts in Islamic countries have often held that the best interests of the child should prevail, and custody should go to the mother.

Other developing Islamic nations have, however, succeeded in introducing some level of reform to counteract paternal dominance of family affairs. Most usually, as in Tunisia, this has been restricted to secular changes, creating tensions with tribal custom and the guidance of the Qur’an,10 but intended to reduce or frustrate the incidence of such traditional practices as child-marriage, polygamy, and the husband’s right to unilaterally repudiate marriage. Inescapably, however, the Muslim community—whether in Islamic states or in the more secular western nations—is becoming exposed to the same social pressures that have long disrupted the family life of their Christian counterparts.

9 Note 10 The

to author (11.07.08). Qur’an consists of the scriptures of Islam as ‘revealed’ to Muhammad.

16.2 Background

16.2.1.1

693

Marriage and Family Breakdown

The Qur’an allows a man to have up to four wives. It also permits a quick and easy form of divorce which requires the wife to be provided for,11 and generally allows the father custody of the children, except where the child is being breast-fed. In some countries, such as Syria and Iraq, divorce is expected to be a judicial procedure requiring an appearance before a judge to repudiate a marriage. Adultery is seldom a cause for divorce because it is regarded as such a shameful act of betrayal and a threat to the integrity of the entire extended family. Adulterers are sometimes put to death. If a mother is divorced and then remarries, the strict Islamic position is that the mother loses custody of her child who remains in the home and within the guardianship of the father. This would be particularly likely if the child concerned is a daughter (who would otherwise have to live under the same roof with a stranger male, with possible complications arising under the principle of zina). However, as with other aspects of Islamic doctrine, there is flexibility. Where the circumstances permit, a child may accompany her mother to their new home. In some instances the new father may then apply for joint custody and even for adoption (in one successful U.K. case). There have also been instances where the name of the child has been changed to that of the new father, though this is for reasons of social convenience (schools etc.) and must not be used to obscure the reality of the father/child relationship.12 It would seem that Islamic divorce rates are on the increase. The Islamic state of Saudi Arabia is reputed to have one of the world’s highest divorce rates; nearly one fifth of all marriages end in the divorce.13 The experience is much the same in non-Islamic states: a recent study conducted by Ilyas Ba-Yunus, at State University of New York, found “an alarming increase in divorce rate among Muslims in North America reaching 31%.”14

16.2.1.2

Unmarried Mothers

Islam safeguards lineage, not only by prohibiting legal adoption, but also by prohibiting adultery (zina) and non-marital sex. It is of fundamental importance that, wherever possible, the father of a child is known so that the child can be seen

11 See, further, Jaafar-Mohammad, I. and Lehmann, C., ‘Women’s Rights in Islam Regarding Marriage and Divorce’, Law and Practice, April 2011, at: http://wmlawandpractice.com/2011/04/ 11/women’s-rights-in-islam-regarding-marriage-and-divorce/. 12 Again, the author acknowledges the advice of Werner Menski on this matter. 13 See, Kawach, N., ‘In Saudi… who is to blame for high divorce rates’, Emirates 24/7 News, Tuesday, March 20, 2012, at http://www.emirates247.com/news/region/in-saudi-who-is-to-blamefor-high-divorce-rates-2012-03-20-1.44935. 14 See, Ilyas Ba-Yunus, Muslims in the United States, Greenwood Publishing Group, Westport, 2006. Also, see Youssuf, Maha, at: http://muslimtribune.org/news/alarming-divorce-rates-amongmuslims-online-service-makes-it-worse.

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to be his legitimate heir, belonging to and continuing that family bloodline. Unmarried mothers threaten the integrity and transparency of the role of the family in Islamic states, they face exposure to social denigration and risk being ostracized by the extended family. The pressures are such that illegal abortions, abandonment and even infanticide are not uncommon. Informal adoption, preferably discretely arranged within the extended family, is often the preferred means of coping.

16.2.1.3

Abortion

There are those who believe that Islam prohibits abortion. Certainly the Qur’an proclaims a right to life and sanctifies the life of every child.15 Certainly, also, the Organisation of Islamic Conference’s ‘Covenant of the Rights of the Child in Islam’ declares that16 : The child shall have a right to life from when he is a fetus in his/her mother’s womb or in the case of his/her mother’s death; abortion should be prohibited except under necessity warranted by the interesets of the mother, the fetus, or both of them.

And certainly there are issues in relation to family planning per se. Nevertheless, abortion clinics do function in Islamic states; some specifically permitting abortion for women who have been raped. In Pakistan, for example, a survey of three clinics found that 452 women, almost all of whom were married, had their pregnancies terminated between October and December 1997.17 Sometimes, in order to avoid an abortion, a foster care arrangement may be made for the unborn child, which in practice closely resembles a surrogacy arrangement. This, again, can be seen as an illustration of the flexibility allowed in the application of Islamic doctrine which, in this instance, places greater weight on the unborn Muslim child’s right to life than on the principles constraining use of ‘adoption’.

16.2.1.4

Assisted Reproduction Services

Assisted reproductive technology is problematic in an Islamic context.18 The emphasis on the protection of lineage and bloodlines leads to treatments such as 15 Qur’an

17: 3 1; 8 1: 8–9. Article 6.1., Organisation of Islamic Conference, ‘Covenant of the Rights of the Child in Islam, June 2005. 17 See, Rehan, N., Inayatullah, A. and Chaudhary, I., ‘Characteristics of Pakistani Women Seeking Abortion and a Profile of Abortion Clinics’, Journal of Women’s Health & Gender-Based Medicine. October 1, 2001, 10(8): 805–810. https://doi.org/10.1089/15246090152636569. Pakistan has an estimated abortion rate of 29 abortions per 1000 women of reproductive age, despite the procedure being illegal except to save a woman’s life, according to report published by the Population Council of a study it conducted from 2002 to 2004. 18 See, further, Inhorn, M.C., and Tremayne, S., (eds.), Islam and Assisted Reproductive Technologies: Sunni and Shia Perspectives, Berghahn Books, New York, 2012. 16 See,

16.2 Background

695

IVF and GIFT being generally regarded as at best suspect due to their potential for compromising the Islamic concept of ‘family’. Then there is the influence of the Qur’an and the fundamental Muslim belief or aqidah that everything happens according to the will of Allah19 : He bestows (children) male or female according to His Will; or He bestows both males and females, and He leaves barren whom He will: for He is full of Knowledge and Power.

For Sunni Muslims recourse to assisted conception techniques is usually prohibited: artificial insemination, using donor semen other than that of the husband, can be regarded as a serious offence to be viewed in the same category as adultery; though for Shiite Muslims the use of such services is generally permissible. Unlike most of the other jurisdictions studied, the improved techniques of assisted reproduction services are often unavailable as an alternative to adoption in Islamic states.20 Surrogacy Surrogate motherhood raises significant issues in Islamic law, generating much heated contention and little consensus. Shiite Muslims tend to allow it, but to Sunnis it is forbidden, or haram: for “…their mothers are only those who conceived them and gave birth to them (waladna hum).”21 In Iran, with its Shiite majority, surrogacy is permitted but the resulting child is recognized as the child of the donor father. Other countries where Shias have a strong presence, like Lebanon, Iraq, Bahrain, Saudi Arabia, Syria, Turkey, Afghanistan and Pakistan allow surrogacy with varying restrictions such as: only to be used by married couples; no commercial component; and prohibition on availability to unmarried or same sex couples. It has to be added that in counties such as India, there are many Muslims who participate in a thriving international surrogacy service availed of by foreigners, including Muslims.

16.2.1.5

Increase of Children in Public Care

Child neglect and abuse know no frontiers. This occurs in Islamic states and/or within that culture, as it does elsewhere, and in an Islamic context it can include religion specific abuse such as female genital mutilation and child marriages. However, the child protection ethic—with accompanying laws, professional staff and management systems—is not as developed and does not have such social prominence as in contemporary western societies. This is because child care is regarded as something that should remain within the family home, even when a child is disabled. The patriarchal nature of Islam, together with the open and mutually supportive nature of relationships within the Muslim extended family network, probably help to explain 19 See,

Surah al-Shura (42): 49/50. the Middle Eastern countries of Egypt, Iran, Kuwait, Jordan, Lebanon, Morocco, Qatar, and Turkey, as well as a number of non-Middle Eastern Muslim countries including Indonesia, Malaysia, and Pakistan—sperm donation in IVF and all other forms of gamete donation are strictly prohibited. 21 See, Surah al-Mujadalah (58: 2). 20 In

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16 The Adoption Process in an Islamic Context

the relatively low rates of reported child abuse. However, some abused children do enter the public care system following the conviction of their parents. It would be unlikely, though not impossible, that such a child would become available for foster care let alone adoption by a ‘stranger’. In the U.K. it is estimated that there are now at least 2500 Muslim children in the care system, many of whom would benefit from adoption but, due to the absence of Muslim adopters (prospective adopters being unsure whether statutory adoption is compliant with Islamic teaching), they are unlikely to be found adoptive homes. (A problem that seems to have rapidly increased recently in the U.K., as many Muslim children are taken into care by social services). Alternative care arrangements are sometimes necessary for a child. This may be due, for example, to the death of parent/s, abandonment, imprisonment or long-term parental incapacity. However, a completely abandoned child is a rarity and many Muslim children are informally cared for by close relatives Foster Care Islamic tradition and the accompanying legal system have long encouraged the fostering of orphaned and abandoned children, as well as providing them with legal protection.22 In Egypt, for example, the law allows an orphaned child in an orphanage to be available for foster care up until he or she reaches four years of age. Should that child be fostered, the foster parent protects, feeds, clothes, teaches, and loves him or her as his own without attributing the child to him, but also without giving him or her the rights which are reserved under Shari’ah law for natural children. Fostering, in theory, is positively encouraged because it does not involve any transfer of parental rights nor does it obscure a child’s identity. Indeed, there is always the possibility of such children being fostered by non-relatives. What seems to count most in such circumstances is that scarce state resources are saved/protected by such family arrangements and that the child in question is raised as a Muslim. In practice, however, few children entering the public care system leave it for foster care or domestic adoption. Residential Care Despite Qur’an endorsement for foster care, unless the care of a child is undertaken by relatives the probability is that he or she will be reared in an orphanage with little prospect of being placed in a family.23 This may in part be due to the social stigma attached to couples who choose to take in a child of unknown lineage; members of the extended family may object. In the United Arab Emirates, for example: a child of unknown parentage, or laqeet, is a child abandoned by their parents for reasons such as fear of poverty or reprisals for adultery, or because he or she has special needs; while orphans , or yateem, are those whose parents are known, but either the father or both parents are deceased. For the purposes of public child care arrangements, a 22 Qur’an

2: 220; 4: 2, 6, 10, 127; 17: 34.

23 See, for example, Kosansky, O., ‘Orphans of Islam : Family, Abandonment, and Secret Adoption

in Morocco (review)’, Anthropological Quarterly, Volume 76, Number 4, Fall 2003, pp. 807–812.

16.2 Background

697

laqeet is treated as yateem, both are at least initially placed in ‘orphanages’ and may subsequently become available for adoption. The reliance on residential care can be attributed largely to the lack, in Islamic states, of any counterpart to the cohort of professional child care workers and integrated systems for managing children entering public care that are to be found in developed western nations. It is often also due to a lack of state resources. A contributing factor lies in the policy of some orphanage administrators of declining to discharge their children partly due to a concern that the private care of ‘strangers’ may not be as safe as that provided by the orphanage and partly from a perceived need to protect the viability of their institution. Then there is also the element of fear of transgression of the Islamic law of inheritance, m¯ır¯ath, which “constitutes the single most distinctive and complicated part of shar¯ı’ah law. It is particularly closely tied to the text of revelations” (see, also, below at Sect. 16.11.1.2).24 Kinship Care Islam places a great emphasis on the ties of kinship and requires every effort to be made to locate a relative to care for a child, before allowing someone outside the family, much less outside the community or country, to adopt and remove him or her from their familial, cultural, and religious roots. Whether orphaned, abandoned or otherwise in need of care, such a child would generally be known and a home found for them somewhere within the extended family or ummah (wider community).

16.2.2 Resulting Trends in Types of Adoption The use of adoption in Islamic states does not correspond to the pattern now well established in most modern developed western countries.

16.2.2.1

Third Party Adoptions

For reasons outlined above, the adoption of children by non-relatives is generally less prevalent in Muslim communities than in the other jurisdictions studied. However, the adoption of a laqeet by a non-relative is becoming more common in some countries due to: the relative anonymity of teeming cities such as Cairo or Mumbai where the pressures of poverty can result in parental abandonment of children; together with the rising rates of involuntary childlessness and consequent increase in prospective domestic and intercountry adopters. In relative terms, the actual number of children subject to domestic third party adoptions remain at a very low level compared to the 24 See,

Mayer, A.E., ‘Inheritance’, in Esposito, J.I., (Ed. in Chief) The Oxford Encyclopedia of the Modern Islamic World, Oxford University Press, New York and Oxford. Vol. 2, at p. 203. Werner Menski comments: “It is remarkable that this Encyclopedia lists the word adoption with a crossreference to ‘inheritance’, but the entry on inheritance by Mayer does not even mention the word adoption”. Note to author (03.08.2020).

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16 The Adoption Process in an Islamic Context

total in the public care system and in comparison with practice in developed western nations. Domestic Generally, domestic adoption arrangements in Islamic states proceed with a minimum of formality. For example, there are no court proceedings involved with adoption in Jordan. Moreover, in Islam an adoptive child can acquire a relationship with the adoptive parents’ family simply through nursing. The adoptive mother may nurse the child and by virtue of this act, the child becomes muhrim (or a close relative, whom members of the opposite sex may not marry) to the adoptive parents and their family. Child Care Childless couples (even foreign Muslim childless couples) may take in a child from an orphanage and then later, in another country, can adopt that child. In Pakistan and Morocco,25 for example, as long as the child is to be brought up as a Muslim, the courts will often agree to such an arrangement and will give permission for the child to be taken abroad.26 In other countries the religious upbringing caveat is not required. Indeed, children in the public care system, with presumed Muslim parents, have long been routinely subject to intercountry adoption processes. Intercountry Children unavailable under Shari’ah law for domestic adoption are likewise, as a rule, unavailable for intercountry adoption.27 However, the third party adoption of an abandoned or orphaned child, where parental consent and family lineage do not present issues, is a different matter. Permission would seem to be given in the Minhaj28 : Caring for abandoned children is a communal obligation. (According to some scholars) If the child is found in one land she may not be carried to another. However the reliable position is that she may be carried to another land.

For some decades, many children designated ‘orphans’ or ‘abandoned’ have departed from countries with large Muslim populations such as India, the Philipinnes and other African and Asian countries, to acquire a new cultural identity in the homes of their western and usually Christian adopters.

25 On September 21, 2012, Moroccan Justice Minister El Mostapha Ramid published a notice instructing Moroccan prosecutors to oppose any petitions filed with a juvenile judge seeking the granting of Kafala guardianship decrees to foreign prospective adoptive parents who do not reside in Morocco. See more at: http://childrenshouseinternational.com/morocco/#sthash.OlNuLeAw.dpuf. 26 The author acknowledges the advice of Werner Menski on this matter. 27 Though, as the Madonna case illustrates, there can be exceptions. 28 See, Yahya ibn Sharaf al-Nawawi, Minhaj al-Talibeen (Lebanon: al-Maktaba al-Asriyyah, n.d.), 294–295.

16.2 Background

16.2.2.2

699

First Party Adoptions

The nuclear family orientation, so characteristic of developed western nations, is not the preferred social unit for contemporary life in Islam. Instead reliance is placed upon maintaining a strong network of relationships within the ummah or wider circle of family members and family friends. This approach, of looking to the community and extended family and its history for a sense of personal and collective identity and as a resource for sharing responsibility, is again similar to the traditional clan system that prevailed in countries such as Ireland and remains very evident in modern day Japan. It is one that places great value on lineage, patriarchy and care of the weak. It cultivates a bond of pride in shared family history and requires loyalty, transparency and a level of openness in acknowledging and dealing with problems. This approach is one with direct implications for child care matters particularly adoption. Step-Parents Step-parent adoption is generally not an option for Muslims. The reasons why this type of adoption is most widely and frequently used by non-Muslims throughout the developed western world, are also the reasons why it is rejected by Islam. The Qur’an is clear that a step-father must respect the lineage of his step-children: it is forbidden to use the law for the explicit purposes of creating artificial family unity, to erase the name of the birth family, ensure that the children share the step-father’s surname, and to terminate all rights of the birth father and members of his family. Retention of a step-child’s birth identity also serves to remind him or her of the continuing legal rights and duties owed to their birth parent/s and of the quite separate obligations they owe to their step-father. Kinship Because of the importance placed upon respecting and protecting lineage and inheritance, adoption in Islam is largely family or kinship based: a child will most usually be placed with members of the extended family.

16.2.3 Emerging Characteristics of the Adoption Process In Islam what can be termed adoption is at best an alternative care arrangement for a child whose parents have died or are unable to provide the necessary physical care, love and protection. Such children are then cared for by a set of parents or guardians who act as caregivers with the consent, whether written or verbal, from the birth parent/s or next of kin.

700

16.2.3.1

16 The Adoption Process in an Islamic Context

The Children

For the most part, the children adopted through both the domestic and the intercountry routes are legally defined as ‘orphans’, ‘foundlings’ or ‘abandoned’ for whom, as their lineage is unknown, adoption is acceptable in Islam.29 Birth Parent Placements The central concern in the Islamic concept of adoption is the exact opposite of its traditional western statutory counterpart: it insists that wherever possible the birth parent/s must retain their links with the adopted child. Instead of surrendering all their rights, the birth parent/s should, by mutual agreement, make the necessary care arrangements with others for the upbringing of their child. The basis of this relationship lies in the concept of syura or consensus. It extends to permitting if not encouraging the birth parent/s to make the initial placement. Non-marital Children available for adoption by third parties are most usually those born ‘out of wedlock’—or abandoned and presumed to be non-marital. Insofar as Islam permits such an adoption, the child concerned must be one that does not belong, or no longer belongs, to a family. Adoption of a marital child by a third party is only possible where that child is an orphan . Otherwise the adoption of marital children is restricted to first party or kinship adopters. Adoption of Children from Care Non-consensual adoption of a child with known and living parents is not possible in Islamic states. Whether or not convicted of child abuse, parents cannot in law deny their parentage nor can the law countenance the compulsory transfer of a child with known lineage and identity to a family of a different bloodline. However, respect for those who voluntarily undertake the care of an orphan is well established in Islamic culture. Indeed it is strongly associated with the foundations of Islam itself.30 There is thus a general acceptance within Islamic public authorities that children designated ‘orphans’ and consigned to orphanages should, where possible, be adopted: preferably through the domestic adoption route and by Muslims; but otherwise through the intercountry route and, only in the absence of any alternative, by non-Muslims. In the latter case, prospective adoptive parents usually first obtain guardianship or 29 Qur’an

33: 4–5.

30 Ibid. and see, for example, Imad-ad-Dean Ahmad, The Islamic View Of Adoption And Caring For

Homeless Children, where he explains: “The most famous orphan in Islamic culture is, without doubt, the Prophet Muhammad, peace be upon him. His father died before he was born and by the time he was eight he had lost both his mother and the grandfather who named him. He was subsequently raised by his uncle Abu Talib who continued to be his protector until his own death, when Muhammad was an adult of almost fifty years of age. When Muhammad’s wife Khadijah gave to him a slave named Zaid, Muhammad freed the boy and raised him as if he were his own son. The importance of taking homeless children to care for them is well-established in Islam.” As cited at http://www.fostercarelink.com/islamandfostering.htm.

16.2 Background

701

custody of the orphan by means of an order to that effect from a Shari’ah court or equivalent authority, accompanied by a declaration that the child has been irrevocably relinquished for emigration and adoption. A stringent set of rules and regulations exists in Islamic countries governing the treatment of abandoned children or ‘foundlings’. As Dr Ahmad Al Qubaisi has explained “in Arabic, children abandoned by their parent or parents for whatever reason, are known as laqeet which literally means ‘to pick up a child from death’— one of the holy acts for a Muslim … it means that you are saving a soul from death and it is your responsibility”. In the Islamic tradition, orphans, or yateem, are those whose parents are known, but either the father or both parents are deceased. Moreover, taking care of laqeet is deemed to be more holy, because yateem have families to take care of them. In both cases, the child’s lineal identity should not be changed and their birth parents should be acknowledged. When the child’s parents are unknown, ‘they must be made brethren in faith and clients of their fellow Muslims’.31 As a matter of Islamic public policy, falling under the rules of good governance (siyasa shari’yya), an abandoned child should be brought up as a Muslim. Adoption of Children with Special Needs The faith-based motivation of adopters—whether Christian, Muslim or other—tends to lead many to consider that adopting a child with special needs is both a religious and civic obligation. Although the term is open to wide interpretation, most intercountry adoptions and domestic adoption from public child care, are now in respect of ‘special needs’ children. The number of such children needing permanent family care that their birth parents cannot provide greatly exceeds the number of prospective adopters, an asymmetry that is exacerbated by the religious upbringing requirement that generally accompanies any available Muslim child including one with special needs. Some adoption agencies, such as Hopscotch in the U.S., specialize in recruiting Muslim adopters for such children.32

16.2.3.2

Openness

In Islamic culture, the adopted child is made aware of the existence of his or her birth parents and they are free to communicate with one another. Children are given the liberty to decide with whom they want to live when they come of age. The Muslim Women’s Shura Council is unequivocal in its approach and33 : advise against hiding the adopted child’s familial background. Witholding this information from the child could lead to identity crisis and confusion. The adoptive parents should inform adopted children of their status with due consideration … In cases where the child’s background is not known, parents should adhere as closely to open adoption practices as possible … 31 Qur’an

33: 4–5. further, at: http://www.hopscotchadoptions.org/pages/muslim_islam_child_adoption.html. 33 See, The Muslim Women’s Shura Council, ‘Adoption and the Care of Orphan Children Digest’, American Society for Muslim Advancement, August 2011, at p. 16. 32 See,

702

16.2.3.3

16 The Adoption Process in an Islamic Context

Single and Same Sex Adopters

Being an unmarried person is not usually a contra-indicator of eligibility to adopt for Muslims or for those of other faiths. Some states with large Muslim populations, such as India and the Philipines, specifically state that single adopters are welcome. Other countries once did so but now restrict such applicants to special needs children, while Jordan prohibits single adopters. There is no semblance of similar equivocation in relation to the Islamic approach towards same sex prospective adopters: such applicants would be wholly rejected, as would an application from a single gay person.

16.2.3.4

Transracial

The ethical and practical issues that have dominated the transracial adoption debate in recent years are more complex in the context of Islam. Paradoxically, as modern western society becomes ever more multicultural so matters of ethnic and cultural integrity in transracial adoption seem to be growing in importance, and not just in western countries. This was clearly demonstrated by the announcement of the Moroccan Justice Minister in 2012 that a total of some 30,000 Muslim Moroccan children had to-date been adopted by Christians in those countries and the time had come to put an end to this practice. This issue also arises from time to time in the context of child care adoption in the U.S. and the U.K.34 when Islamic children from Asian or African ethnic origins are fostered by white Christian carers (because no matching religious/racial foster carers are available) who in due course apply to adopt. While the courts are obliged to take into account the wishes of the birth parent/s and the importance of religious and cultural considerations in forming the adoptee’s sense of identity, they will still give precedence to the welfare interests of the child and all other factors being equal would be likely to view those interests as best furthered by the proposed transracial adoption. Ultimately, it is unlikely that transracial adoption itself presents any problems for Islam. Difficulties only arise when the transracial component is accompanied by evidence that the ethnic/cultural identity of the adoptee could be compromised and/or that his or her Islamic faith could be displaced.

34 See,

McVeigh, T., ‘Race dilemma at the heart of our adoption crisis’, The Observer (Sunday 6 July 2008) where it is noted that “the majority of children awaiting adoption in Britain are black, Asian or mixed-race while most available adopters are white”. See, further, at: http://www.thegua rdian.com/society/2008/jul/06/children.communities1.

16.2 Background

16.2.3.5

703

Commercial Agencies

Given that Islam does not support adoption as statutorily defined in the developed western nations, it is unsurprising that there are no Muslim adoption agencies per se—let alone any that are commercial. For-profit adoption agencies are nonetheless very active in countries such as Pakistan, the Philippines and India facilitating the adoption of Islamic children into Christian homes in the U.S., the U.K. and Europe.

16.2.3.6

Post-adoption Contact and Support

It is unlikely that state support, in the form of financial assistance or by other means, would be available to adopters in an Islamic country because undertaking the care of orphans , foundlings or abandoned children would be viewed as a religious duty and meritorious in itself. In western countries, however, all parties to an adoption— whether all, some or none are Muslims—are likely to qualify for state financial assistance and probably other forms of support. Needless to say, as maintaining links between an adoptee and members of his or her birth family is of central importance to Islam, direct and indirect contact between them is encouraged.

16.2.3.7

Post-adoption Access to Information

In keeping with the above mentioned principles of ‘openness’ and ‘maintaining links between adoptee and birth family’, Islam insists on the transparency and accessibility of the information necessary to enable an adoptee to establish his of her origins and thereby be reminded of their familial obligations.

16.3 Overview of Principles, Policy and Law Since the seventh century, the doctrines of Islam have maintained a strong grip on the Muslim cultures of Asia, the Gulf states and elsewhere in the eastern hemisphere. Adoption law and policy, lying as it does at the heart of Islam and its central concern to safeguard the identity and integrity of family lineage, has undergone little change over the centuries. While in some states, such as Jordan and Tunisia, there has been some loosening of the Islamic rules in respect of matters not at the heart of the institution of marriage, including for example the right of wives to travel and find employment, there have been virtually no formal legal developments in relation to adoption.

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16 The Adoption Process in an Islamic Context

16.3.1 Adoption Principles and Policy For all Muslims the sources of authority, both primary and secondary, governing adoption and other matters of central importance to the Islamic concept of ‘family’ are to be found in the Qur’an (the Holy Text believed to be the direct word of God) and the Hadith, the Sunnah (the example, whether in word or deed, of the Prophet Muhammad incorporated in Islamic scriptures), the Ijma, Qiyas and the Ijtihad (or the law of deductive logic). Perhaps the most authorative statement of relevant principles and policy can be found in the 2011 publication ‘Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child Digest’ by the Muslim Women’s Shura Council.35 It finds and confirms that “adoption can be acceptable under Islamic law” and goes on to clearly state that “when all efforts to place orphaned children with their extended family have been exhausted, open, legal, ethical adoptions can be a preferable Islamically-grounded alternative to institutional care and other unstable arrangements”. In applying this approach the Council advocates that “all children have the right to know their lineage and to celebrate their unique national, cultural, linguistic, and spiritual identity”.36 It is this balance between protecting the right/duty of the child to know and respect their lineage while also ensuring that alternative family based care arrangements are appropriate and sufficient to promote their welfare interests that lies at the heart of contemporary Islamic adoption policy. A major concern is to ensure that the child is raised as a Muslim.

16.3.1.1

Principles

The law falls, as in other jurisdictions, to be applied by the courts and in the words of Sajjad Ahmad J37 : A law is not law merely because it bears that label. It becomes law only if it satisfies the basic norms of the legal system of the country (enshrined in the Qur’an) and receives the stamp of validity from the Law Courts.

The courts apply Shari’ah law which “draws no distinction between the religious and the secular, between legal, ethical, and moral questions, or between the public

35 See, the Muslim Women’s Shura Council, ‘Adoption and the Care of Orphan Children: Islam and the Best Interests of the Child Digest’, American Society for Muslim Advancement, August 2011, at: http://www.wisemuslimwomen.org/images/activism/Adoption_(August_2011)_Final.pdf. 36 Ibid., at p. 4. 37 Jilani v. Government of Punjab Pak LD (1972) SC 139 at p. 261.

16.3 Overview of Principles, Policy and Law

705

and private aspects of a Muslim’s life.”38 The law governs adoption then, as it does other aspects of family life, in accordance with the rules of Shari’ah. The Welfare Interests of the Child In Islamic states, the test of the best interests of the child is most frequently construed as satisfied only when his or her upbringing conforms to the doctrines of Shari’ah law. This theological interpretation of one of the more crucial concepts of modern family law is an indicator of how politics and family, or public and private interests, are merged in Islamic states. The cultural dissonance between the religiously-based application of this test in such countries as opposed to its professional application (as dictated by psycho-social norms of attachment, bonding etc. in relation to the needs of the individual child) in the other jurisdictions studied, is considerable. While some Islamic states, such as Pakistan, have ratified the International Convention on the Rights of the Child, there is little evidence that this has resulted in the changes to law and practice necessary to ensure compliance with Convention principles (e.g. in that country, the suitor of a girl aged 12 years or more, promised to him in marriage, cannot be prosecuted for any allegation of rape occurring during the pre-marital engagement period of khitbah). In addition, despite the declaration in the Organisation of Islamic Conference’s ‘Covenant of the Rights of the Child in Islam’ that parents and guardians must “encourage the child to acquire skills and capabilities to face new situations and overcome negative customs and to grow up grounded in scientific and objective reasoning”,39 there is a good deal evidence in practice (e.g.in relation to matters such as girls and schooling), in countries such as Afghanistan and Nigeria, to the contrary. The Committee on the Rights of the Child has expressed its concern at the weak protection given to the rights of children in particular Islamic states.

16.3.1.2

Policy

Islam, doctrinally, does not tolerate the legal fiction of adoption and views the statutory form of adoption typical of western nations as falsifying the identity of the individual, corrupting the integrity of bloodlines and lineage, and as undermining the natural order of society. The traditional prohibition on this type of adoption was ordained to protect the rights of the adopted, adopter, birth parents, other individuals affected by the adoption and its consequences for inheritance, and Islamic society as 38 Bharathi Anandhi Venkatraman, Comment, Islamic States and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women: Are the Shari’a and the Convention Compatible? 44 Am. U. L. Rev. 1949, 1964 (1995) (citing Hodkinson, K., Muslim Family Law: A Sourcebook (1984)); as cited in Schnitzer-Reese, E. A., ‘International Child Abduction to NonHague Convention Countries: The Need for an International Family Court’, Northwestern University Journal of International Human Rights, Volume 2, Issue 7 at http://www.law.northwestern.edu/jou rnals/jihr/v2/7. 39 See, Article 11, Organisation of Islamic Conference, ‘Covenant of the Rights of the Child in Islam, June 2005.

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16 The Adoption Process in an Islamic Context

a whole. The principles of ‘open’ adoption are now being advocated by such bodies as the Muslim Women’s Shura Council to bridge the gap between the customary Islamic approach and the contemporary western statutory approach to adoption law and practice. It remains a heavily contested area of policy.

16.3.1.3

Adoption Alternatives

For those Muslims living in the western developed nations, who wish to make longterm care arrangements for children outside their family of origin, they must look to legal processes such as guardianship and custody rather than adoption. Where Muslim children enter the public child care system of nations such as England & Wales40 and the U.S., which provide for the removal of parental rights and compulsory adoption, this presents a serious challenge to the values and principles of Islam. Kafala This is the preferred alternative to adoption. As it is functionally restricted to the legal obligations of guardianship and maintenance, it thereby avoids any risk of legally displacing or obscuring the links and lineage between child and birth family. Unlike adoption, kafala vests the new parent/s with only the authority and responsibilities of a guardian: they act as trustees in place of the birth parent/s; they must carefully establish, distinguish and keep separate the property, inheritance rights and the family name that belong to the child; and all that inherently belongs to the child, or has been acquired during the period of kafala, must be returned to him or her on their attaining adulthood.

16.3.2 Contemporary Adoption Related Legislation For those Muslims living in countries which have introduced laws to moderate some of the harsher aspects of Islamic constraints on family matters, there is some flexibility available in relation to adoption. A new codification of laws, designated as clarifications of the Qur’an teachings, has gradually tempered the traditional Islamic approach. In Egypt and Iran, for example, this has resulted in a growing number of annual third party domestic adoptions of children from orphanages while in Jordan there are now a considerable number of intercountry adoptions. In most Islamic

40 Note

that the Muslim Arbitration Tribunal is within the formal provisions of the Arbitration Act, 1996 as its protagonists are dually qualified in the English and the Islamic legal systems (see, for example, Bowen, J. R., Blaming Islam, Cambridge: MIT, 2012, at p. 120). Indeed, some contend that Shari’ah law and its network of courts have been incorporated into the U.K. legal system. See, further, at: http://www.huffingtonpost.co.uk/2014/03/23/sharia-law-enshrined-in-uk-legal-system_ n_5016396.html.

16.3 Overview of Principles, Policy and Law

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states, however, it remains the case that while informal guardianship arrangements are common, adoption as a formal legal process is not possible. The Guardians and Wards Act 1890 Brief mention must be made of the 1890 Act, part of the legacy of British imperial rule, which was passed to formalize all adoptions in what is now India, Pakistan, Bangladesh and also Kashmir. It acknowledged that, in an Islamic context, the status and legal rights of a child ‘adopted’ by a family were different from those of any child born into that family. It required adoptive couples to become the permanent legal guardians of any adopted child and outlined their duties to provide shelter, food, clothing, love, security and permanence for that child. In Pakistan, for example, this legislation still provides a secular framework for addressing issues relating to the care of children.

16.3.3 International Law There is an inescapable conflict between some of the traditional patriarchical dictates of Shari’ah law and the provisions of contemporary international Conventions. This is broadly evident in the context of human rights and in family matters regarding, for example, the rights of women, gender equality, inheritance and property rights. The tension is perhaps particularly acute in respect of the law relating to children, their custody, upbringing and adoption. Where Islamic states have been able to ratify and/or be signatories to Conventions this has most usually been subject to the condition that Convention provisions do not breach Shari’ah law in which case, by implication, the latter will prevail. Alternatively, some states have sought to circumvent the clash by introducing a substitute Islamic term or concept, even if not quite compatible with the corresponding Convention provision, as occurred with the introduction of the concept of kafala in lieu of adoption. This has allowed some Islamic states to subscribe, if only technically, to the requirements of international law as it relates to foster care, adoption and to the rights of the child more generally.41 The United Nations Convention on the Rights of the Child together with the Second Optional Protocol, for example, have now been ratified by most Islamic countries, with the notable exception of Somalia, while the Hague Convention has also been ratified by some.42

41 Note

the Universal Islamic Declaration of Human Rights, 21 Dhul Qaidah 1401, 19 September 1981, (at http://www.shrc.org/english/docs/uidhr.htm.) and the Cairo Declaration on Human Rights in Islam, 4 Muharram 1411, 5 August 1990, (at http://www.humanrights.harvard.edu/documents/ regionaldocs/cairo_dec.htm.). 42 Bosnia, a substantially Muslim country, is party to the Hague Convention while Turkmenistan and Uzbekistan in Central Asia, both Muslim-majority countries, are bound by accession to it, but many countries in the Islamic world and Asia are not signatories.

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16.4 Regulating the Adoption Process Islamic countries have no equivalent to the highly regulated adoption process that typifies modern common law and civil law jurisdictions. This is partly because of the decentralised nature of government administration in Islamic society: provision of judicial and social services is most usually organized at local community level, within the parameters of Shari’ah law and Islamic teaching as monitored by the mullahs; domestic adoption is largely a matter to be resolved locally. It is also due to the relative underdevelopment of social infrastructure in many Islamic states. Mostly, however, it is a natural consequence of the fact that adoption as such is not wholly recognized within Islamic culture and law: there is no comparison with the salience long given to adoption in the other jurisdictions studied; Islam has no need for an institutional framework to regulate a process dedicated to facilitating the transfer of children from birth families to ‘strangers’.

16.4.1 Length and Breadth of Process The adoption process in an Islamic context bears little resemblance to its counterpart in modern western nations. It is not so sophisticated, nor as structured and does not involve as many professionals. The fact that it is simplified and without the full sequence of stages that characterize the process in other jurisdictions does not, however, mean that it is necessarily more expeditious. In many Islamic countries, such as Egypt, the best intentions of prospective adopters are often defeated by a grindingly slow and torturous bureaucracy which results in most adoptable children being left in orphanages.

16.4.2 Role of Adoption Agencies and Other Administrative Agencies The provisions of the Hague Convention, to which many Islamic states are signatories, require a certain minimum level of professional and organizational activity if the standards for processing intercountry adoptions are to be met. In addition, the management of orphanages, the assessment and supervision of foster-parents and the need to respond to the enquiries of prospective adopters, impose their own staffing requirements. The effective management of public child care requires an administrative capacity in Islamic states as it does elsewhere.

16.4 Regulating the Adoption Process

16.4.2.1

709

Adoption Agencies

The existence of domestic adoption agencies as such would raise issues in Islamic states. There are none for example in Jordan, though the functions of such an agency may still need to be performed. In Jordan, an assessment to determine suitability as foster parents is conducted by officials from the Ministry of Social Development. This is very similar to the process in other countries such as Egypt. It usually takes about three months and requires submission of the usual personal and family history information (see, further, below).

16.4.3 Role of the Determining Body As a matter of practice, the operational decisions determining whether or not the applications of prospective adopters will be successful, are taken by those in control of the supply of children: the officials with management responsibility for an orphanage have the authority to discharge a child into the care and custody of a prospective adopter. In many Islamic states, there is no judicial involvement. In Jordan, for example, the Ministry of Social Development is the only entity that can grant adoption applications.

16.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria In Islamic states, the eligibility of children and prospective adopters to engage in an adoption process is determined, in effect, by the government officials with management responsibility for orphanages. Whether for domestic or intercountry adoption, the terms of that engagement are set by the standards required for guardianship; only after that stage has been successfully completed does the possibility of adoption arise; and then only in some Islamic countries.

16.5.1 The Child Under Islam, no child is officially available for third party adoption if one or both parents, or a relative however distant, is known. The only children available for such an adoption are those for whom there are no known and available relatives. Otherwise, first party adoptions are the norm with the child concerned being related to their adopter/s.

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16 The Adoption Process in an Islamic Context

The Welfare Threshold

There is no evidence that the weighting given to welfare considerations is sufficient to determine the admission of an Islamic child to the adoption process. In relation to children admitted to the public child care system due to parental neglect, abuse or abandonment, it would seem that a much greater proportion remain in orphanages throughout their childhood than would be the case in western countries. The relative ineffectiveness of welfare considerations is exacerbated by the reluctance or inability to develop long-term foster care as an alternative to adoption for such children. In relation to kinship adoption, while welfare is often a factor in enducing a poverty stricken birth parent to give their child to a relative it is not always the deciding factor. Kinship adoptions frequently result from a wish to respond to the childlessness of a relative or another closely related family, including employers, as is known from cases that arose in Pakistan and then later went through adoption proceedings in the UK.43 Moreover, the wishes of the child have no legal weighting as a component in determining their welfare in the minority of cases where the child is old enough to voice an opinion. In most Islamic states, children in orphanages are only available for third party adoption at an age when it would be impractical to seek their views on that prospect. In Egypt, for example, an upper age limit of four years is usually the practice. Where the child is older, as might well be the case in a kinship placement, there is no requirement in law to consult with him or her prior to making arrangements for their adoption.

16.5.2 The Birth Parent/s Adoption, in the secular systems typical of the other jurisdictions studied, rests on the consent of birth parent/s: this must either be given or the need for it statutorily dispensed with; it must be accounted for. In Islam it is not, in theory, possible for a parent to give consent to such a total and permanent abnegation of their responsibilities and dilution of their lineage, nor is there usually any provision in the culture or in law for bypassing or dispensing with the necessity for it, though it may be permissible in some local cultures. In Islam, the bond between a birth parent and child cannot be given away—but if the child is closely related, in some local cultures, the matter may be perceived differently and a child may be absorbed into the family of relatives. A child is the gift of Allah to the parents and it is their responsibility to care for the child to the best of their abilities and to be accountable for his or her wellbeing. Therefore, only if a child’s birth parents are dead or unknown, can their rights and responsibilities in respect of that child pass permanently to others. In practice, then, as noted earlier, Islamic doctrine in this and other matters can allow for some flexibility if this is required to alleviate undue hardship or to support consensual family arrangements regarding the care and upbringing of a particular child. 43 Author

acknowledges advice from Werner Menski on this matter (note to author, 03.08.2020).

16.5 Threshold for Entering the Adoption Process: Eligibility …

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16.5.3 The Adopters: Eligibility and Suitability Criteria As in the other jurisdictions studied, eligibility for adoption rests on certain formal components.

16.5.3.1

Third Party Adopters

The adoption of a child by a ‘stranger’, as opposed to the fostering of such a child, is treated as anathema to Islamic culture. It is accommodated within Islamic law, with difficulty, in circumstances where parents are dead or unknown and no other relatives can be found. In countries like India, Bangladesh or Pakistan, where customary adoptions are locally permitted among Muslims, there may be less official reluctance to accept the ‘family arrangements’ made, provided they are in good faith and ensure that the child is brought up as a Muslim. Eligibility Criteria In Jordan, for example, all prospective adopters must be Muslim and be married for five or more years. The husband must be between 35 and 55 years of age and the wife between 30 and 50. Parents must be medically certified as infertile. They may have up to two children, including adopted children. If the parents have one child already, then the adopted Jordanian child must be of the same sex. Parents who have previously adopted in Jordan must wait a minimum of two years before adopting another child of the same sex. As there are no Jordanian residency requirements for prospective adoptive parents this facilitates intercountry adoption. By way of contrast, the 2012 introduction of such requirements in Morocco has effectively ended the adoption of Islamic children by foreigners. In Pakistan, the assessment will take the form of a home study report accompanied by the usual references and an assessment of their eligibility and suitability to provide a home environment likely to safeguard the welfare of the child concerned. If approved, the child will then be transferred from an orphanage to the adopters’ care and they will be vested with custody and guardianship rights. If the child’s parents are known to the authorities, and the applicants wish to ‘adopt’, then they will have to enter into an irrevocable, bilateral, intra-familial agreement in writing in which the birth parent/s clearly waive any right to reclaim their child. In Algeria the requirements for kafala are that applicants: be of Muslim faith; have a decent home; be less than 60 years of age (man) and 55 years old (woman); and have a minimum net income of £700 per month. They are required to produce: a letter of motivation; a copy of their Consular Registration card; birth certificate/s; police clearance or criminal record issued by British or Irish Authorities; an employment certificate and their last three payslips; accommodation evidence (tenancy agreement, rent receipt etc.); and medical certificate/s as evidence of their good health.44 44 See,

the Algerian Consulate London, KAFALA, DOC05.

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Suitability Criteria Again, the suitability of applicants is determined as in other jurisdictions through an assessment conducted by officials from a designated government agency who examines their personal history, home circumstances, present health and finances. In Jordan, for example, all prospective adopters are first required to apply to the Ministry of Social Development to be assessed as foster parents. The usual personal details and social history data are submitted, together with employer(s) information as to income, employment status, etc. Doctor’s reports regarding the health of the applicants must also be provided, including medical proof of their infertility. If either or both of the applicants are converts to Islam, a copy of the conversion certificate must be provided.

16.5.3.2

First Party Adopters

The adoption of an orphaned child by a relative, the most common form of adoption in some countries, is permitted in Islamic culture and law as also is the birth parent’s placing of their child with a relative for the latter to rear as their own.

16.5.3.3

Same Sex Adopters

Needless to say, the prospect of same sex adopters would violate basic Qur’an precepts and be prohibited under Shari’ah law.

16.6 Pre-placement Counselling In Islamic states there is no requirement to provide pre-placement counselling for the benefit of the birth parent/s or for any of the other parties involved in an adoption; except insofar as this may be necessary to fulfill agreed procedures in respect of intercountry adoptions in circumstances where the country concerned is a signatory to the Hague Convention or where this is stipulated in a partnership agreement between sending and receiving countries outside the terms of that Convention.

16.7 Placement Rights and Responsibilities By far the majority of adoptions in Islamic states take the form of informal, longterm, first party, care arrangements (or kafala) within the child’s extended family and, as there are no placement rights as such, the parties are essentially left to their own devices. In third party domestic adoptions, where all rights in respect of the orphan or abandoned child are vested in the designated government agency, the placement

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procedure is controlled by that agency. Whereas this is not tightly regulated, with specific agencies and professionals being responsible for statutorily defined roles, the practice is not unlike that of adoption agencies in common law countries. In the small minority of cases where the child is the subject of an intercountry adoption governed by the Hague Convention then all arrangements are required to be Convention compliant (see, further, Sect. 5.6.3).

16.8 The Hearing In Islamic states, the Shari’ah courts administering Shari’ah law have jurisdiction in respect of issues arising in family matters such as marriage, divorce and inheritance. In those few instances where an adoption is not a matter informally arranged within the extended family, it will be brought before the local Shari’ah court. Effectively, adoption applications most often appear before a judge when the applicants are unrelated to the child who is an orphan or abandoned and most usually resident in an orphanage; which will be the case in intercountry adoptions.

16.8.1 Where Consent Is Available Adoption is fundamentally consensual in Islamic culture and law. This gives rise to the paradox that it is the absence of any need to address the issue of parental consent that is a characteristic feature of adoption in an Islamic context as a parent is prohibited from permanently and irrevocably giving away their child. Parental consent will, however, always be necessary in kafala arrangements.

16.8.2 Where Consent Is Not Available In any third party adoption of an orphan, whether domestic or intercountry, the required consent will be that of the appropriate government official and the head of the orphanage.

16.8.2.1

Dispensing with Consent

The non-consensual adoption of Islamic children by non-Islamic adopters in western countries gives rise to considerable controversy. When the necessity for parental consent is dispensed with by the court, the local authority may then be placed in a position where, in order to secure the best interests of a Muslim child through

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adoption, it is forced to turn to non-Muslim adopters. This can generate concern in the Islamic community and among the general public.45

16.9 Thresholds for Exiting the Adoption Process In Islamic states not only is there is no right to adopt or to be adopted, nor any general right to start a family, but there is resistance to any attempt to interfere with established bloodlines and a reluctance to facilitate those who wish to change the identity of a child for the purposes of creating their own nuclear family based upon compromised bloodlines and a denial of the importance of lineage and inheritance.. However, where the child concerned is an orphan or abandoned with no known relatives then a Shari’ah court will have little difficulty in granting an adoption in favour of married Islamic applicants who fulfill the necessary eligibility and suitability criteria.

16.9.1 The Welfare Interests of the Child While in general the benchmark applied by the Shari’ah court is the best interests of the child, these ‘best interests’ are in turn defined as meaning an upbringing that is wholly Islamic. It is hard to estimate the judicial weight given to a child’s welfare as an objective determinant of an adoption application.

16.9.1.1

The Paramountcy Principle

From the Shari’ah court definition of the best interests of the child as being satisfied only by a wholly Islamic upbringing, it is clear that such interests are not amenable to objective evaluation and would not be regarded as a matter of paramount importance. This factor does not, for example: outweigh the importance of parental consent.

16.9.1.2

The Voice of the Child

It is also clear that the Shari’ah court definition of the best interests of the child does not indicate the necessity or appropriatness of obtaining the consent of the child concerned; nor does it suggest that the voice of the child should be heard in an application for his or her adoption in any Islamic state.

45 See, for example, the multiple issues involved in the proposed adoption of a Muslim child in care by a lesbian couple. See, further, at: http://www.5pillarz.com/2014/02/03/muslim-family-protestafter-social-services-choose-non-muslim-lesbians-to-adopt-daughter/.

16.9 Thresholds for Exiting the Adoption Process

16.9.1.3

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The Paramountcy Principle and Religious Upbringing

It is a unique characteristic of the adoption process in an Islamic context that the paramountcy principle is construed as entirely synonymous with religious upbringing: only an Islamic upbringing can satisfy the principle.

16.9.2 Representing the Child’s Welfare Interests Shari’ah law does not provide for consultation with children in adoption proceedings. The requirement of the United Nations Convention on the Rights of the Child that effective representation be provided to allow children to participate in matters that affect their lives has no bearing on adoption proceedings in Islamic states.

16.10 The Outcome of the Adoption Process In Islamic states, for most purposes, the outcome of such a process is in fact and in law the determination of an application for kafala.

16.10.1 Adoption Order In many countries with predominantly Muslim populations, statutory adoption processes also exist but there the outcome differs in some important respects from the equivalent process in the other jurisdictions studied.

16.10.1.1

Third Party Applicants

Only when an application is by a third party, whether on a domestic or intercountry basis, in respect of an orphan or abandoned child, will the adoption process ultimately conclude with the issue of an adoption order. Should adopters wish to take a child to live outside the jurisdiction, the courts will simply attach to the guardianship order the special permission required for the child to accompany the guardians for permanent residence elsewhere. Finally, when so resident, if the guardians wish to consolidate their position as adopters then the status of the child as orphan or abandoned together with consent of the Deputy Commissioners should allow this to proceed.

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16.10.1.2

16 The Adoption Process in an Islamic Context

First Party Applicants

In Islamic countries most domestic adoptions are first party informal care arrangements or kafala and are not necessarily endorsed by court orders. The rationale for step-parent adoptions that prevails in the other jurisdictions studied does not apply in an Islamic context: there is no equivalent social pressure to use adoption as a means to tidy up family status. In fact, the reverse is the case: there is definite pressure not to deliberately obscure actual genetic relationships; the use of adoption to tidy up matters relating to family names and inheritance rights would not be compliant with Islamic teaching.

16.10.2 Alternative Orders There is no equivalent in Islamic countries to the range of court orders generally available in the other jurisdictions studied which authorise alternative care arrangements for a child for whom parental care is not possible.

16.11 The Effect of an Adoption Order The Islamic concept of adoption is fundamentally different from its common law equivalent. This difference is apparent in the effects of an adoption order.

16.11.1 The Child In Islamic culture an adopted child is never seen as having been legally severed, permanently and irrevocably, from their family of origin and cannot be placed in the same legal relationship to their adopters as though born to them and of their marriage. When the child is grown, members of the adoptive family are not considered blood relatives, and are therefore not muhrim46 to him or her.47 This is demonstrated by the rules relating to consanguinity, inheritance, family name etc. As most domestic adoptions are ‘kinship’ in nature, the following rules then fully apply, but in circumstances governed by the Hague Convention the legal effects of the order on all parties must be Convention compliant. 46 The

term muhrim (also ‘mahrem’ or ‘mahram’) refers to the rules that govern relationships, determine status and regulate marriage and other aspects of family life. It denotes a fixed and reciprocal relationship and therefore does not allow for the possibility of a child, taken in or ‘adopted’ by persons other than his or her birth family, acquiring the same degree of relationship with their adopters as a child born to them. 47 Qur’an 4: 23.

16.11 The Effect of an Adoption Order

16.11.1.1

717

Name

In many parts of Asia and Africa, locally practised naming systems are in operation and may not emphasise a family name, Islam does not allow children to deny their family of origin.48 In circumstances where the child’s origins are unknown then it might be possible to take the family name of a non-biological parent (i.e. an adoptive parent). So, for example, in Egypt the law directs that “an orphan or a child of unknown parentage, male or female, carries the surname of the guardian family to be attached at the end of his/her first name. This action should be documented in the child’s file, and it does not lead to any effects related to adoption”.49 Where the name of an adopted child’s birth family is known then the child should retain that name, rather than assume that of their adopters, and must retain respect for their family of origin. While, for practical reasons, in most developed countries it is necessary for the adopted child to be known by the surname of their adopter, nevertheless in Islamic terms it remains important that the adoptee should know the name of the birth parent/s and know that their adopters are really no more than their legal guardians.

16.11.1.2

Inheritance

Inheritance is governed by the Qur’an which confines inheritance rights to relationships based on bloodlines and marriage.50 Adopters are required to separate an adopted child’s property and inheritance rights from their own and ensure the transfer of all income and assets to the child when he or she attains adulthood. As the Qur’an directs51 : To orphans, restore their property when they reach of age. Do not substitute your worthless things for their good ones, and do not devour their belongings by mixing them up with your own. This is indeed a great sin.

An adopted child, therefore, inherits from his or her biological parents, not automatically from the adoptive parents, and the adoptive parents have a strong obligation to protect the property rights of the child In fact, an adopted child is generally prohibited from inheriting the property of adoptive parents, as this would necessarily undermine the inheritance rights of birth children52 and Islam places great importance upon respecting the inviolable integrity of the ‘natural’ family unit. While he 48 Surah Al-Ahzab Verse 4–5: “… nor has (Allah) made your adopted sons your real sons. These are the things which you utter from your mouths, but Allah says that which is based on reality and He alone guides to the Right Way. Call your adopted sons after their father’s names: this is more just in the sight of Allah. And if you do not know who their fathers are, then they are your brothers in faith and your friends…”. 49 See, Child Law No 12 (1966). 50 Qur’an 8: 75. 51 Qur’an 4: 2. 52 “But those of [blood] relationship are more entitled [to inheritance] in the decree of Allaah”, Qur’an 8: 75.

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16 The Adoption Process in an Islamic Context

or she has no inherent legal rights of inheritance in relation to their adopters, the latter may make arrangements during their lifetime to confer property rights on their adopted child and may decide to treat this child, also in terms of property entitlements, as their birth child. Menski adds that “the flexibility and resultant lack of adherence to orthodoxy arising from such scenarios may explain why Mayer (see above at Sect. 16.2.1.5) in the entry on ‘Inheritance’ did not go into such detail”.

16.11.1.3

Consanguinity

An adopted child, for the purposes of the laws relating to incest and the prohibited degrees of marriage, cannot under Islamic law be granted the same locus standi as if born to the adopters. When the child is fully grown, members of the adoptive family are not considered blood relatives, and are therefore not muhrim to him or her. An adopted person is ghayr muhrim to a sibling in their adoptive family and they can marry each other.

16.11.2 The Birth Parent/s In Islamic states, the effect of a domestic adoption order on the birth parent/s is that they shed their day-to-day care and maintenance responsibilities in respect of their child but, unless dead or unknown, they do not otherwise lose all parental rights and duties. The child remains in law a member of the birth family and continues to be subject to the rules of inheritance, consanguinity and family name as though he or she had never left. The birth parent/s may maintain contact and/or demand the return of their child as they see fit. While the birth parent/s or any other family members are alive or known then the child cannot, under Islamic law, be wholly and irrevocably legally separated from his or her family of origin.

16.11.3 The Adopters Islam rejects the notion of an adopted child becoming an integral part of their new family to be treated in law as though born to the adopters. Whether the order granted is in fact adoption or, as is much more likely, kafala, the child is ascribed the status of non-Muhrim and in both law and practice the distinctive rules of that status apply to remind the adopters that this is not their birth child. In Islamic culture, adopters are not taking the place of the biological family— instead they are trustees and caretakers of someone else’s child. The Qur’an specifically reminds adoptive parents that they are not the child’s biological parents: “Nor

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719

has He made your adopted sons your (biological) sons.”53 This is evident in rules such as those relating to family identity and property rights. While adopters are permitted to choose the child’s first name they may not automatically substitute their surname for that of the child’s birth family. If the child is provided with property/wealth from their birth family, adoptive parents are required to hold it separately from their own and ensure that it passes intact to the child. The Qur’an has thus declared that only the wives of birth sons, “the wives of your sons who are from your (own) loins”,54 not the wives of the adopted sons, are permanently forbidden in marriage. Accordingly, it is permissible for a man to marry the divorced wife of his adopted son, a member of the adoptive family would be permissible as a possible marriage partner for an adopted person, and rules of modesty exist between the grown child and adoptive family members of the opposite sex. Moreover, in Islamic law and culture there is little equity in the marital relationship: the husband bears the traditional patriarchal role as it was once defined in the law of England & Wales (see, further, Sect. 1.4.1.1) to which his wife and children are subordinate. One consequence of this is that custody of the adopted child, and responsibility for taking welfare-related decisions regarding health and education etc., is seen as vested in the male adopter. Included in this responsibility is the duty to ensure that the upbringing of the adopted child conforms to Islamic requirements. As noted above, the inequity extends to inheritance rights as neither the Qur’an nor Shari’ah law recognise adopted children as presumed legal heirs of their paternal adopter.

16.11.4 Dissolution of an Adoption Order Kafala can be revoked at any time at the initiative of either of the parties involved, including the child.

16.12 Post-adoption Support Services Islamic states do not provide a statutory entitlement to post-adoption services comparable to those available in the developed common law nations. Such intervention would be viewed as an unwarranted government intrusion into the patriarchal family unit, even if the resources were available.

53 Qur’an 54 Qur’an

33:4–5. 4: 23.

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16.13 Information Disclosure, Tracing and Re-unification Services Kafala does not require the above services as it is a process built on transparent consensual arrangements that allow for ongoing relationships between all parties: there is never any room for doubt as to the identity and location of those involved. The statutory adoption process, however, whether domestic or intercountry can give rise to issues regarding information disclosure etc.

16.13.1 Information Disclosure Identity and family history are matters of great importance in Islamic law and culture. It is considered essential that every Muslim has an authentic identity which in turn necessitates access to all relevant information. In Turkey, for example, the Republican civil code explicitly declares that provision must be made to ensure that an adoptee has full access to identifying information: To protect the adoptee’s rights of identity, the government links the official records of the adoptive family and the biological family. All official developments and changes in status regarding the adopted child are registered in both records.

In Jordan, the Ministry of Interior, Department of Civil Status has a novel approach to dealing with registering the subject of a third party adoption. It chooses four fictitious names for the mother and father, which along with the child’s first name are placed on the Jordanian birth certificate. Parents’ names, which are chosen at random and do not identify with any common Jordanian family or tribal names, are required for issuance of a Jordanian birth certificate. Thereafter, in Jordanian law, the child will carry the names of the fictitious father.

16.13.2 Tracing and Re-unification Services In Islamic states, third party adoptions are usually in respect of orphans or abandoned children for whom all members of their birth family are either dead or unknown. Tracing and re-unification services, for both domestic and intercountry third party adoptees, are thus in most cases unnecessary.

16.14 Conclusion Adoption in an Islamic context is largely a misnomer. Although afforded tacit recognition, on a domestic basis in respect of some orphans or abandoned children and

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on an intercountry basis by those countries that have acceded to the U.N. and Hague Conventions, for all other purposes adoption is known and interpreted as kafala. Islamic culture, specific to some countries and accommodated by many, does not itself permit the total transfer of all parental rights and responsibilities in respect of a child from one family to another. It is a culture built around the importance of the identity of the individual and the family, within Muslim society, as traced by bloodlines back through the generations. Preserving the integrity of the family lineage, safeguarding the place of current family members relative to each other and passing on an intact genetic heredity to the next generation, are among the more binding duties that rest on the patriarchal head of the family. The extent to which this conceptualisation of the ‘family’ and the traditional interpretation of the patriarchal role is wholly Convention55 compliant as it interfaces with contemporary individual rights and freedoms is a matter for ongoing debate. Unquestionably, however, it does impact upon the law, policy and practice of adoption as established in a secular context. Where a child has no known family, due to being orphaned or abandoned, then he or she may be eligible for either domestic or intercountry third party adoption in accordance with statutory law. In the former case, this should be by Muslim adopters resident in the child’s country of origin or in a country that has an appropriate statutory scheme. Parental rights in respect of such a child are then vested in the adopters within an ‘open’ form of adoption, subject to Islamic rules governing matters such as muhrim and hijab and as regards inheritance. In the latter case, the child is normally entrusted to the prospective adopter as a court appointed guardian who may then be permitted to take the child to another country where a full statutory adoption may be completed. In such circumstances, the adopters are unlikely to be Muslim and will be fully vested with all parental rights without any attached religious caveats; similarly in some western countries, when Muslim children in the public child care system become available for non-consensual adoption. However, even though eligible for adoption and regardless of whether they are in an Islamic state or in an Islamic community within a western and more secular society, few Muslim children are adopted in accordance with a statutory scheme, by far the majority live out their childhood in the care of the state. It is probable that Islamic culture, as expressed through the attitudes of the extended family and members of the local community, would not be wholly supportive of those who undertook care responsibility on the terms provided by the statutory law of adoption as to do so might be viewed as compromising Islamic values. Kafala, on the other hand, readily finds approval from within the Islamic culture, local community and family. Those Muslims who undertake the care of another’s child, for no reward and while remaining mindful of the rightful place of the child’s family of origin, are treated with respect and regarded as meritorious. This is more of a 55 Not just the European Convention for the Protection of Human Rights and Fundamental Freedoms

1950, but also the United Nations Convention on the Rights of the Child 1989, the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 and the European Convention on the Adoption of Children 2008, among others.

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16 The Adoption Process in an Islamic Context

foster-parent relationship whereby the parent/s assume a guardianship role in respect of the child, who may be an orphan or abandoned but is much more likely to be from a known family. Indeed, it most often occurs within the same extended family. Needless to say, kafala requires not only adherence to the rules relating to muhrim and hijab and inheritance, but also Islam would not countenance naming a boy after his guardian father if the child’s family of origin is known as the child already has an individual name, and does not need to be given a new one. Kafala, like the ‘simple’ form of adoption, leaves intact the basic legal components of the child’s relationship with his or her family of origin. This encourages, indeed requires, a degree of openness and transparency in dealing with origins information and facilitating the child’s awareness of their birth identity, family lineage and cultural heritage.56

56 See,

further, Pearl, D. and Menski, W., Muslim Family Law (3rd ed), Sweet & Maxwell, 1998.

Chapter 17

South Korea

17.1 Introduction South Korea, with a population of 54.6 million in 2018, has been described as “a country that once served as the world’s largest source of unwanted children, driven by poverty, governmental regulation, a culture of racial purity, homogeneity, family bloodlines, shame, and taboos against domestic adoption”.1 Much has changed in recent years, including the adoption process, but there remain some deep seated cultural issues that continue to obstruct a balanced acceptance of adoption—domestic and international—in this society. The chapter unfolds in the same way as its predecessors. Beginning with a social context introduction, it identifies the emerging characteristics of adoption, outlines the related framework of contemporary law and policy, before explaining the regulatory machinery of the adoption process. It then examines the process itself: from the threshold for entry to the threshold for exiting; with particular attention being given to eligibility criteria, pre-placement counselling, the hearing, consents and outcome. It focuses on the decision-making choices available to the Family Court and considers the effects of adoption on the parties involved. The chapter closes with a consideration of post-adoption support services and of information disclosure, tracing and re-unification services.

1 Burwell, S.N., ‘Child Abandonment and Adoption in South Korea: A Post-Korean War and Present-

Day Analysis’, New Visions for Public Affairs, Vol. 10, Spring 2018, University of Delaware, pp. 11–18, at p. 11. © Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_17

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17.2 Background While the Korean War (1950–1953) was relatively short, it was very destructive and the recovery took many decades. In addition to the casualties, trauma, extensive poverty and socio-economic collapse, there were the orphans—perhaps 100,000—a large proportion being of mixed race as a consequence of liaisons between foreign, mainly American, troops and some 350,000 Korean sex workers. Both the women and their children were reviled and ostracized in the post-war years, resulting in thousands of abandoned children being cared for in state run orphanages and some adopted domestically. Until the mid-1960s it is said that total domestic adoptions exceeded those adopted internationally.2 However, the scale of the child care problem facing a government with no resources and the costs of massive reconstruction projects led to South Korea becoming, very rapidly, an exporter of the many children disowned by their families and whose care the state could not afford. Over the course of the next few decades this country became a world leader in pioneering intercountry adoption. In 1985, the government established a 5-year adoption and foster care plan, aiming to reduce and then end intercountry adoption. Government funded adoption and counselling agencies were established to identify and encourage prospective domestic adopters. However, this failed perhaps because it was overly bureaucratic and insufficiently respectful of the privacy needs of both birth parents and prospective adopters. In 1988, when South Korea had become prosperous enough to host the 1988 Summer Olympics, the international adoption of children was both the focus of global attention and of national humiliation. Consequently, in 1987, the government introduced a quota system intended to reduce and then terminate Korea’s ICA involvement. It was forced to suspend the quota in 1998, in the wake of growing economic hardship and an increase in the number of abandoned children, which led to a sharp rise in Korean children being adopted overseas. In that year the South Korean president Kim Dae-jung invited 29 adult Korean adoptees from 8 countries to a personal meeting during which he publicly apologized to the nearly 200,000 children who had been adopted internationally. By the early years of the twenty-first century, the South Korean government had established KCare, revised its adoption laws and begun a commitment to promote domestic adoption as an alternative to ICA which included measures such as a 2007 policy prohibiting international adoption for any child within 5 months of their birth.3

2 See, Korean Adoption Service website, ‘History of Adoption in Korea’ at: https://www.kadoption.

or.kr/en/info/info_history.jsp. H., ‘The Biopolitics of Transnational Adoption in South Korea: Preemption and the Governance of Single Birthmothers’ in: Body & Society, Vol. 21, No. 1, pp. 58–89.

3 Kim,

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17.2.1 The Social Context Giving Rise to Adoption South Korea started allowing international adoption shortly after the Korean War ended, due in large part to the pressures arising from the presence of thousands of unwanted mixed race children in a patrilineal society that prided itself on a Confucian respect for the purity of bloodlines; but there were also economic considerations, ICA served to reduce the cost of domestic care for thousands of orphans. In 1953, the American couple Harry and Bertha Holt adopted 8 mixed race Korean children and went on to found Holt International Children’s Services which led the way in developing the international adoption of Korean children. It has been calculated that 6293 Koreans were adopted in the United States between 1955 and 1966, of whom about 46% were white and Korean mixed, 41% were fully Korean, and the rest were African-American and Korean mixed.4

17.2.1.1

Marriage and Family Breakdown

Marriage rates are now at an all time low5 in a society where gender inequality continues to be a marked characteristic: most singleton households are female; the ratio of females to males in the workforce is low; career prospects are poor; and there are lower rates of pay for females than males for the same job etc. Such tensions must contribute to instability in relationships, though the 2005 legislation abolishing the head-of-the-family custom—hoju—eased a traditional cause of gender disparity between spouses.6 Historically, family breakdown is recorded as a significant reason for children becoming available for adoption: in the period 1961–71, this was the case for 1958 of the 7275 children adopted; in 1971–80, the equivalent figures were 13,360 and 48,247; in 1981–1990 the correlation had become weaker, 11,399 and 65,321 respectively; and even more so in 1991–2000, when 1444 of the 22,129 children adopted were from broken homes. In recent years, following government imposed birth restrictions—stigmatising families with more than two children as unpatriotic— children have become a scarce resource. While this has reduced the probability of their being available for adoption it has not increased the probability of adoption for those who are available.

4 Gaw,

A.C., Culture, Ethnicity and Mental Illness, American Psychiatric Press, 1993 at p. 352. 2019, the rate was officially reported as 0.98; the replacement level being 2.1. See, further, at: https://qz.com/1556910/south-koreas-birth-rate-just-crashed-to-another-alarming-low/. 6 Under the hoju system a male is the legal head of the family with all family members listed under the hoju. The status of each family member is defined in terms of his or her relationship to the hoju. When a husband dies he is usually succeeded by the first son not by his wife. When a daughter gets married, she is removed from her father’s hojeok—family registry—and transferred to her husband’s. Children are automatically added to the father’s hojeok. 5 In

726

17.2.1.2

17 South Korea

Unmarried Mothers

The status of unmarried mother—mihonmo—has always been accompanied by shame and disgrace and by a social stigma that extended to include the child. The exclusion was confined to mother and child; there was no social or legal obligation on the father to provide financial support and only nominal welfare benefits were available from the state. It was and continues to be a status: that many young women would wish to avoid; that this patrilineal society has difficulty in accommodating; and one that the state, out of respect for Confucian values, is obliged to discourage. This is reflected in the fact that the rate of births to unmarried women is much lower in Korea than in other advanced countries: in 2010, it was 2.1%, compared with 64.1% in Ireland. Unsurprisingly, therefore, an increasingly significant recorded cause of children becoming available for adoption in recent decades has been the relinquishing decisions of unmarried mothers, many being adolescents7 : in 1971–80, this was the case for 17,627 of the 48,247 children adopted; in 1981–1990 the correlation had greatly stregthened to 47,153 and 65,321 respectively; and in 1991–2000, it reached 20,460 of the 22,129 children adopted. Of all children available for adoption, domestic and international, the proportion recorded as being relinquished by single mothers has continued to be by far the largest category: in 2007, of the 1388 children adopted domestically, 1045 fell into that category; and in 2010, of the 1462 adopted, it was true of 1290. This consistent trend reflects the equally consistent poor levels of welfare benefits and other forms of government support available to unmarried mothers: higher levels of government assistance are available to adopters than to unmarried mothers. Under the Single-Parent Family Support Act 2007, single mothers receive a maximum monthly allowance of South Korean won 180,000 ($167), but only: if they meet stringent restrictions on age and income, including their family’s income; if younger than 24 she must earn less than South Korean won 1.71 million ($1590) a month; if older, less than South Korean won 1.48 m ($1376). Indeed, Rasmussen has claimed that the “root cause” of the number of adoptions from South Korea in 2010 was its lack of spending on social welfare.8 In response to news of a change in government policy to promote domestic adoption, he argued this would not address the heart of the problem which required a steep rise in spending on social welfare benefits. The decision to relinquish also reflects the social marginalisation of unwed mothers who were derided and ostracised as they were held to have disrespected their family and tarnished its bloodlines.9 The Korean patrilineal culture is the reason society stigmatizes and discriminates against unwed Korean mothers: lineage along 7 See,

Jinseok Kim [Chinsˇok Kim], ‘Silent Cry: Adolescent Pregnancy in South Korea’, in Cherry, A.L. and Dillon, M.E., (eds.) International Handbook of Adolescent Pregnancy, Springer, 2014, at p. 568. 8 Rasmussen, K., Journal of Korean Adoption Studies, Vol. 2 Issue 1, (2010). 9 The Korean Unwed Mothers’ Families Association (KUMFA) was established to offer a substitute form of family support for unwed mothers.

17.2 Background

727

the father’s line is especially important in the Korean concept of race and identity; the stigma and disgrace associated with those tainting the bloodline can have an intergenerational impact. Arguably, this is probably the main reason for relinquishment and may drive some to abandon their children. Until young single pregnant women and girls cease to feel shunned by fathers, families and society as a whole they will continue to see abortion, relinquishment or abandonment as realistic options. Abandoned Children/Orphans Child abandonment was and still is a crime in Korea and yet rates are consistently high. In the period 1971–80, the single factor that made the strongest contribution to the 48,247 adoptions was the abandonment of 17,260 children. Subsequently, this link is recorded as being less significant: during 1981–90, of the 65,321 children adopted, only 6769 are recorded as having been abandoned; while during the period 1991–2000 the figures were, respectively, 22,129 and 355. By 2008, only 10 out of a total 1250 adoptions were of abandoned children. Historically, citizenship law was a significant factor contributing to abandonment. Until June 13, 1998 citizenship was conferred only on children born to a father who was a Korean citizen (the father had to legally validate paternity). Children of Korean women, who had either a non-Korean father or no known father (no Korean man claimed paternity), were not Korean citizens—even if born in Korea. However, a child whose “right of blood” could not be determined—orphaned, abandoned, or stateless children—found within Korea was entitled to Korean citizenship. This provided an incentive for many single mothers to abandon their child so that he or she would have the rights and access to services, education, and employment as a Korean citizen.10 It similarly incentivized many orphanages to classify children in their care as “abandoned” in order to ensure that they also had the benefits of Korean citizenship. However, as Burwell notes11 : Strict adoption laws, and the “right of blood” principle, are only a few factors that have played a role in the incidence of child abandonment cases in South Korea. Social and cultural factors, such as taboos against adoption, racial purity, and conservative views of unwed women with children, have also contributed significantly to child abandonment in the country.

The term ‘orphan’ is itself suspect. In developed western nations an ‘orphan’ is a child whose parents have died: most usually, both parents. In South Korea that status is also assigned to a child whose parents are, for whatever reason, missing: most often, one or both have simply relinquished their child and no longer have any contact with him or her. The identity of a parent may be known, even their wherabouts or that of their extended family could be readily ascertained, but the child is nonetheless designated an ‘orphan’. Arguably, it is no coincidence that the US—the major receiving country

10 See, Peterson, J. (2017), ‘Surprising Facts Behind Korean Child Abandonment’ at: https:// www.huffpost.com/entry/the-surprising-facts-behind-korean-child-abandonment_b_59dc0516e4 b0b48cd8e0a5be. 11 ‘Child Abandonment & Adoption in South Korea’, (2018), op cit, at p. 13.

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17 South Korea

for Korean adoptees—required a child to be so designated if he or she was to be legally eligible for ICA, for an entry permit and for US citizenship. Maternity Homes For many decades, South Korea has had a lot of maternity homes—Mihonmosisˇol— in 2012 there were 33. They were provided initially to address the social issue of sex workers convicted under the Law Against Morally Depraved Behaviours but also accommodated young pregnant women who wished to withdraw from family and society while they considered their futures. Traditionally, these facilities were almost always provided by adoption agencies. Until recently, three of the four agencies had their own: one had its own maternity hospital; all four provided child care; all paid foster mothers a monthly stipend to care for the infants; and they provided food, clothing and other supplies free of charge. They also supported both independentorphanages, and or self-run ones. The agencies covered the costs of delivery and the medical care for any woman who surrendered her baby for adoption.12 Although ostensibly providing care, support and teaching child rearing skills, in practice 70– 95% of the young mothers relinquished their children for adoption.13 It was a system designed to achieve that outcome. In 2015, under the revised Single Parents Support Act, Article 20, para 4.2, adoption agencies were forbidden from operating or establishing such facilities, causing half of them to promptly close leaving no alternatives available.14 Baby Hatches As mentioned above, child abandonment is a crime in Korea and yet in 2009 Pastor Jong-rak Lee attached a “baby box” to his church in Seoul, South Korea, to facilitate the safe and anonymous abandonment of babies. Thereafter until 2012, an average of three babies a month were found in the baby box. When the birth registration requirement became law in 2012, that average jumped to 25–30 babies a month and it continues at that level. Between 2009 and 2018, a total of 1363 babies were left in that one facility. Eventually they are transferred to orphanages where they invariably remain because: as they have not been formally relinquished, they cannot be adopted internationally; and, although they would in theory be available for domestic adoption, in practice as there is no accompanying information—relating to bloodlines or family context, general health and maternal care, and as regards any mental or psychological issues—they are virtually unadoptable. The baby-hatch has proven very controversial and there have been government attempts to shut it down. It is viewed as blatantly breaching both domestic law and 12 See, for example: Kim, J., ‘An “Orphan” with Two Mothers: Transnational and Transracial Adoption, the Cold War, and Contemporary Asian American Cultural Politics’, American Quarterly, Vol. 61, Issue 4, pp. 855–880, (2009); and Rothschild, M., ‘Babies for sale. South Koreans make them, Americans buy them’, The Progressive, 1988, at: https://poundpuplegacy.org/node/33481. 13 Kim, H., Birth Mothers and Transnational Adoption Practice in South Korea: Virtual Mothering, New York, Springer, (2016). 14 Sjöstrand, I., ‘The “Baby box”, an issue or solution to child abandonment in South Korea’, thesis in Korean Studies, Stockholm University, (2018), at: https://pdfs.semanticscholar.org/77c6/cfb084 fcbdd0a676a21f1bf1f3713d5e4a0b.pdf.

17.2 Background

729

Article 7(1) of UN CRC, as well as constituting an enducement to young mothers. Some uncertainty now surrounds its status: although advertised as a safe place for a young mother to leave her child, there is no guarantee that if identified the mother will not face prosecution. It also undeniably robs a child of any opportunity to enjoy their basic human right to an authentic identity.

17.2.1.3

Abortion

Abortion is only legally available in restricted circumstances and yet the annual abortion rate in South Korea is estimated to be much higher than in any other OECD country.15 It has been claimed that since the early 2000s, there have been some 350,000 abortions annually compared to 450,000 live births.16 Most abortions are illegal. One reason—probably the primary reason—for recourse to abortion, as for the high rates of abandonment, is that South Korea lacks legal protection for unmarried mothers to give birth anonymously. In a society where family and religious values attach so much importance on maintaining the purity of patrilineal bloodlines and so little on protecting the reproductive rights of women, the prospect of the public humiliation and penury on becoming an unmarried mother has driven very many to seek abortion or—failing that—to abandonment.

17.2.1.4

Assisted Reproduction Services

In 2006, the government launched the National Support Program for Infertile Couples providing subsidies for artificial reproductive technology (ART), including IVF trreatment, for married couples. Since then the national fertility rate has fallen to become, in 2020, one of the lowest in the world which has greatly increased the importance of such services. The high cost of treatment and low number of clinics have obstructed access and prompted the creation of advocacy groups which now campaign for greater service availability.17 Surrogacy Surrogacy became largely legal in South Korea in 2015 but being unregulated it is now a venue for international surrogacy tourism with surrogates available on a commercial basis, though this practice is not strictly legal. Domestically, it has remained socially unacceptable, leading those of its citizens who can afford it to look overseas for such services. This can cause legal problems when, on returning home, a commissioning couple seek to register the birth of the child. The resulting complications were demonstrated in May 2018 when the Seoul Family Court ruled that 15 The

Economist, ‘South Korea’s Orphans: Pity the Children’, 2015, op cit. S., ‘The Choice’. Grove Korea (27th August 2014). 17 See, Centre for Public Impact, Access to Fertility Treatment through Democracy, at: https://www. centreforpublicimpact.org/case-study/access-fertility-treatment-democracy-seoul/. 16 DeWeese,

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the surrogate mother was the legal parent of a child, rather than the commissioning couple, even though the birth resulted from an embryo implant linking the couple genetically to the child. The couple from South Korea had availed of the commercial services of a surrogate mother in the US and the case resulted from an appeal against the refusal of a local district office to register the couple as the child’s parents.18

17.2.1.5

Increase of Children in Public Care

Child protection is a growing problem. According to the Ministry of Health and Welfare (MoHW) there were 22,386 child abuse cases in South Korea in 2017, 18,700 in 2016, 11,715 in 2015, 10,177 in 2014, and 6796 cases in 2013.19 Often the parents are the perpetrators.20 Parental abuse, together with parental abandonment, leads inevitably to some growth in the annual numbers of children admitted to the public system but in practice approximately 80% of abused children are returned to parental care. The bulk of the child care population, largely catered for in orphanages, are “orphans” and/or abandoned. Foster Care The current foster care system was established in 1994. Since then a characteristic feature of that system is the small proportion of children in foster care and—of those—the relatively large proportion who are fostered with kinship carers. It has been noted that21 : the number of children placed in foster care increased from 7,565 in 2003 to 14,584 in 2013. Kinship care by a grandparent(s) is the most popular form of foster care (60% of placements), followed by kinship care by a relative(s) (20% of placements). However, fewer than 10% of foster children have been placed in nonrelative foster care homes each year since 2003.

In 2013, of the 6796 reported cases of child abuse: half were returned home; 23.8% were insitutionalised and; only 0.8% went into foster care.22

18 See, further, at: https://www.straitstimes.com/asia/east-asia/south-korea-court-recognises-surrog ate-mother-as-legal-parent. 19 MoHW, see, further, at: https://www.mohw.go.kr/m_eng/noticeView.jsp?MENU_ID=100111& cont_seq=272525&page=19. 20 The Civil Code, Article 915, continues the parental right to take “disciplinary action” against their children. 21 See, Park, A, ‘South Korea’s Foster Care System’, American Bar Association, (2018), at: https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceo nline/child_law_practice/vol-34/june-2015/south-korea-s-foster-care-system/. 22 Ibid.

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731

Children awaiting international adoption are usually cared for in adoption agency foster homes until the adoption is completed. Residential Care Over the past 60 years, as mentioned above, about 85% of the total orphans in South Korea have grown up in orphanages having never been either fostered or adopted.23 Of total annual adoptions, a surprisingly low proportion are recorded as having been adopted from a residential facility: in 2007, of the 1388 domestic adoptions, this was true of only 118; in 2010, only 46 of the 1462 adoptions were from a care facility; no ICA adoptions are recorded as having originated in a facility (which seems unlikely).24 These orphanages vary in capacity with some being small self contained communities: ShinMang Won, for example has 55 children but Seoul Dream Tree Village has over 700. As adoption rates slow down—both domestic and international—so children are increasingly been diverted from welfare centres run by adoption agencies to long term care in orphanages: in 2015, the number of children being cared for in welfare centres dropped by 26.8% to 12,821, from 17,517 in 2006.

17.2.2 Resulting Trends in Types of Adoption The number of adopted children has fluctuated according to changes in government policy, but overall the number reached 91,000 in the 1980s with an annual average of 9182 adopted domestically and abroad. In the period 1981–90, the number of domestic adoptions was approximately 26,000 (28.86%) and the annual average was 2650 while there were approximately 65,000 (71.14%) international adoptions with an annual average of 6532. In recent years there has been a steady fall in annual adoptions, both domestic and international,25 with a numerical convergence: by 2018 there were 378 domestic adoptions and 303 ICAs.

17.2.2.1

Third Party Adoptions

In 1989, immediately after the Olympic Games, a new lead domestic adoption agency, the Holy Family Child Adoption Center, was established to generate domestic adoption with the goal of ensuring that it replaced ICA by 1996 through means of a phased reduction programme. The plan was abandoned in 1995, as the anticipated rise in domestic adoptions failed to materialise, instead ICAs increased. In March 2006, 23 Ibid. 24 Kathleen Berquist comments that in fact many adoptees come from orphanages and suggests that “perhaps there is a distinction between a ‘residential facility’ and an agency orphanage” (note to author, 20.06.2020). 25 In 2015: 1057 adoptions; 374 international and 683 domestic. In 2016: 880 adoptions; 334 international and 546 domestic. In 2017: 863 adoptions; 46.1% international; and 53.9% domestic.

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the government launched its Comprehensive Countermeasures to Promote Domestic Adoption which provided enhanced institutional and financial support for domestic adoptive families. It also lowered the criteria for approving adopters: single and unmarried people were permitted to adopt; the age gap between adoptive parents and children was narrowed from 50 to 60 years; and the limitation on the number of children permitted to be adopted by individual applicant/s was to be removed. Domestic The Confucian respect for pure bloodlines militates against acceptance of domestic adoption in this society and may explain why, when citizens adopt they do so discretely because of the shame that would result from other Koreans knowing that their children were not of their bloodline.26 Indeed, in 2005, it is reported that over 98% of domestic adoptions were entered into the family registry as birth children.27 More particularly, South Korean adopters tend to favour female children in order to avoid bloodline and inheritance issues, the head-of-the-family—hoju—customs and the performing of ancestral family rites: essentially such matters would be complicated if the family’s only son was an adoptee.28 This may explain an independent external report that from the 1950s to 2015 only 4% of the total number of orphans in South Korea have been adopted domestically, leaving some 30,000 children to age out of the orphanages.29 Further, it claims that despite the South Korean government avowedly trying to increase domestic adoptions, there were only 1548 domestic adoptions in 2011.30 That trend has continued: there were 916 in 2016, and by 2018 they had fallen to 37831 ; due to tighter restrictions on eligibility criteria for adopters. In contrast, official reports claim that domestic adoptions steadily increased throughout the closing decade of the twentieth century, reaching 36% of all annual adoptions. The diference between these two sets of statistics is difficult to explain but may need to be seen in the context of a history of government sensitivity to the politics of adoption in South Korea. The Special Adoption Law 2012, Article 7, declares the legislative intent to ensure the “preferential promotion of domestic adoption” and directs that “the State and local governments shall implement the policies, with the highest priority, in finding domestic adoptive parents for children whose adoption is sought”. This legislation

26 See, Morrison,

S.C., ‘In Defense of Adoption’, Korean Quarterly, Vol. 14, No. 1, (2010). In it he expresses the view that the practice of Koreans adopting Korean children in secret was the greatest obstacle for Korean acceptance of domestic adoption. 27 See, further, at: https://justicespeaking.files.wordpress.com/2011/07/02-oldadoptionlaw-english. pdf. 28 The Economist, ‘Why Adoptions are so Rare in South Korea’, op cit. 29 The Economist, ‘South Korea’s Orphans: Pity the Children’, op cit. 30 Earlier annual rates of domestic adoptions were lower: 2006, 1332; 2007, 1388; 2008, 1306; 2009, 1314, and in 2010, 1462. 31 See, further, at: https://www.statista.com/statistics/647918/south-korea-children-adoption-num ber-region/.

17.2 Background

733

established the Korea Adoption Service (KAS) specifically to promote domestic adoptions. Child Care The Ministry of Health and Welfare (MoHW), established in 1948, has responsibility for providing out-of-home care for children abused or neglected by their parents. In 2018, of the 4538 children listed as ‘children with care needs’: 3918 came into state care; 1300 were admitted to institutions; and 937 went into various forms of foster care; with 174 being adopted.32 Very few children are adopted, particularly domestically, from the public child care system. This is because the system largely caters for “orphans” who are virtually unadoptable domestically. Children with Special Needs By the early 1990s, the adoption of disabled children was around 1% of all domestic adoptions while they constituted approximately 40% of those adopted overseas. In the aftermath of the 1998 financial crisis, the numbers of children with special needs increased by 40% within a year to reach 9000. In 1998 the ordinance and regulations relating to legislation on Special Cases Concerning Adoption Promotion and Procedures were revised to boost the adoption of disabled children domestically and internationally. Nonetheless, it has been estimated that for the decade 1996–2006, only 163 such children were adopted within Korea whereas 8469 were adopted internationally.33 In 2012, increased financial support was introduced for adopters of children with special needs. Intercountry The modern phenomenon of ICA probably began in 1955 when Bertha and Harry Holt adopted eight Korean war orphans, following which they started Holt International Children’s Services, a US based adoption agency, specializing in finding families for Korean children. Thereafter, as adoption from Korea escalated, to peak in the mid-1980s, other countries were drawn into the ICA vortex. The first Korean babies sent to Europe went to Sweden in the mid-1960s and by the end of that decade, the Holt agency had begun sending Korean orphans to Norway, Denmark, Belgium, the Netherlands, France, Switzerland and Germany. There were always more male than female children as South Korean families were deterred from adopting male children because of the difficulty with the lineage complications associated with adopted sons. The quota system for foreign adoptions reduced the number of children permitted for overseas adoption by 3–5% each year, from about 8000 following its introduction in 1987 to 2057 in 1997 and falling further to 916 in 2011 and then to 334 in 2016 and 398 in 2017. By then, an estimated total of 166,846 children had been adopted overseas, mainly to families in: the US, 112, 239; France, 32 See,

KOSIS at: https://kosis.kr/eng/statisticsList/statisticsListIndex.do?menuId=M_01_01& vwcd=MT_ETITLE&parmTabId=M_01_01#SelectStatsBoxDiv. 33 See, further, at: https://www.brookings.edu/opinions/the-past-and-future-of-international-ado ption/.

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11,196; Denmark, 8792; Sweden; 9683; and Norway, 6497. Towards the end of that period, as South Korea became a more stable and prosperous country, its role in intercountry adoption grew more contentious causing the government to review its policy and revise its laws in relation to adoption. By that time also, a generation of ICA adoptees who had attained adulthood were returning to South Korea to explore their birth and cultural origins. Given the importance attached to the family registry system, their probing of family histories gave rise to questions of disrupted kinship.34 Although the popular perception is that Korea siphons off its surplus children onto the ICA market, an alternative view is that “South Korea has in fact been caring for an overwhelming majority of its unwanted children—2 m, or around 85% of the total— who have grown up in state-run orphanages in the past six decades”.35 The Special Adoption Law 2012, Article 8, specifically directs that “the State shall endeavour to reduce overseas adoptions for the sake of implementing its duties and responsibilities to protect children”. In furtherance of this directive, government limits have been set on the number of overseas adoptions,36 but about 0.5% (1 in 200) Korean children are still sent to other countries every year. Transracial It was no coincidence that ICA commenced with the adoption of mixed-race children: the constraints of a patrilineal and what was then a relatively culturally homogenous society has not proven conducive to absorbing children so obviously different; and who would appear as anomalous in the family registry. Transracial adoption was, in fact, a strong characteristic of ICA but rarely featured in domestic adoption. The consequences, in terms of loss of cultural identity, for the many tens of thousands of Koreans—mixed race or not—being raised by white Caucasians in an Anglo-Saxon or Scandinavian society has been the subject of considerable research.37

17.2.2.2

First Party Adoptions

The family registry system is of central importance as a means of publicly declaring personal status and family relationships. Since this system was revised, in 2008 and again in 2015, it is now a simple process to change the name and affiliation of a stepchild, while legal rights of inheritance etc. follow the name change, which perhaps obviates any need for step-parents or relatives to have recourse to adoption. On the other hand, if they do adopt it would seem that they may well wish to hide that 34 See, McKee, K.D., Disrupting Kinship: Transnational Politics of Korean Adoption in the United States, University of Illinois Press, 2019. 35 The Economist, ‘Why adoptions are so rare in South Korea’, (May, 27th, 2015) at: https://www. economist.com/the-economist-explains/2015/05/27/why-adoptions-are-so-rare-in-south-korea. 36 The Economist, ‘South Korea’s Orphans: Pity the Children’, op cit. 37 See, for example, Gordon-Decoteau, D. and Ramsey, P.G., ‘Positive and Negative Aspects of Transracial Adoption: An Exploratory Study From Korean Transracial Adoptees’ Perspectives’, Adoption Quarterly, Vol. 21, Issue 1, (2018).

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fact—by not disclosing it in the family registry—because of the shadow of stigma and discrimination that continues to fall on adoptees and adopters in this country.

17.3 Overview of Principles, Policy and Law The Civil Code continues to recognise the ‘simple’ form of adoption but, for most purposes, adoption in this country now means the statutory judicially determined process. The Special Adoption Law 2012 (amended in 2011), the end result of an extensive revision of South Korea’s adoption law, modernised the legal framework sufficiently for the country to meet the standards set by the Hague Convention. Accordingly, on May 24th, 2013, the Minister of Health and Welfare signed the Hague Adoption Convention, thereby establishing an important milestone in the development of South Korea’s adoption law and practice.

17.3.1 Adoption Principles and Policy The Civil Code continues to permit ‘simple’ or ‘private’ adoptions for residents in South Korea: these do not involve adoption agencies; and result from direct arrangements between birth parent/s and adopters. For present purposes, the adoption process is the statutory system governed by the Special Adoption Law 2012, which does not include direct arrangements with birth parents, but instead relates exclusively to children in foster care or in orphanages. In fact, Article 44 of the 2012 Act warns that criminal sanctions will be imposed on any “person who adopts a child without leave of the court, in violation of Article 11, 18 or 19”. In 2007 a quota system was established which limited the number of children to be sent overseas for adoption and prevented their removal for 5 months (to allow professionals time to explore domestic alternatives); reducing international adoptions by 10% a year. In 2011, the Special Adoption Act took effect, to be amended the following year, requiring birth registration, a public court appearance and a longer period before placement, discouraging not just birth parent relinquishment but also those who wished to discretely adopt through private arrangement.

17.3.1.1

Principles

Arguably, Korean adoption has been driven more by pragmatism than principles: poverty and patrilineal considerations fuelled government recourse to ICA; economic

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prosperity and national shame prompted government to end ICA and endeavour to replace it with domestic adoption. The Welfare Interests of the Child Having ratified the UN Convention on the Rights of the Child in 1991, South Korea is bound by the Article 3 requirement to regard the best interests of the child as a primary consideration in the adoption process (see, further, Sect. 4.4.4.9). To some extent this is acknowledged in the ‘principle of adoption’ stated in the Special Adoption Law 2012, Article 4, which declares that “adoptions under this Act shall be conducted in such a way that the interests of children shall be a matter of the highest priority”. However, there is no domestic legislation that specifically addresses the best interests of the child: no legal framework—child protection, child in need, family support etc.—that discerns a spectrum of circumstances requiring the welfare of the child to be recognised and given a particular weighting.

17.3.1.2

Policy

It is at least paradoxical, given its status as holder of the lowest global fertility rate coupled with a history of government incentives for families to self-limit to one child, that South Korea has had such a permanent reservoir of children—either in long term care in orphanages or being adopted overseas—all seemingly unwanted in their own country. Currently, in a reversal of policy, government is encouraging larger families with financial and other incentives.38 This policy naturally extends to increasing the annual rate of domestic adoptions, a policy which in part has been due to pressure from activists who have been vociferously advocating for an end to ICA and for greater state support for single mothers.39 The 2012 law requires birth mothers to record their babies in their family registry. This is a prerequisite for children to be eligible for international adoption. But because such registration in a public database would openly disclose—to family members, future partners and employers—their status as unmarried mothers, the law had the unexpected consequence of increasing the numbers of anonymously abandoned babies.40 In 2013, the government introduced supportive measures for single mothers considering relinquishing their babies for adoption. In 2015 it amended the Registration of Family Relations Law 2007 to protect the privacy of single mothers.

38 See,

further, at: https://www.citylab.com/life/2018/08/south-korea-needs-more-babies/565169/.

39 See, further, at: https://edition.cnn.com/2013/09/16/world/international-adoption-korea-adoptee-

advocates/index.html. 40 South Korea Child Law Sees More Babies Abandoned, 2017, para. 17, at: https://www.ndtv.com/ world-news/south-korea-child-law-sees-more-babies-abandoned-1726087.

17.3 Overview of Principles, Policy and Law

17.3.1.3

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Adoption Alternatives

In this country the standard default for adoption is for a child to remain in long-term care in one of the many orphanages. Foster care is gradually growing to become the state preferred alternative to care in an orphanage but this currently largely takes the form of foster care by relatives, usually grandparents. While it is possible to appoint a person or persons as a child’s legal guardian, there is no counterpart to the range of adoption alternatives that would be found in other western countries.

17.3.2 Contemporary Adoption Related Legislation The initial Act on Special Cases Concerning Orphan Adoption was introduced in 1961 and various iterations followed over the ensuing years before its current manifestation in the form of the Special Adoption Law 2012. Other legislation relating to child welfare followed, such as the Law Concerning the Duties of Guardians for Orphans and Child Welfare Law.

17.3.2.1

The Single Parents Support Act 2019

This legislation introduced measures to boost the country’s chronically low birth rate, including more support for single parents and infertility treatment coverage for cohabiting couples. It allows unwed, single mothers to register their children under their own surnames (rather than have their name automatically changed to that of the birth father if/when he declares his status).

17.3.2.2

The Special Adoption Law 2012 (Amended in 2011)

The legislative intent of this Act, enacted on August 4th 2011, was twofold: to give effect to the Hague Convention’s recommendation on keeping children with their birth families; and to promote domestic adoptions by reducing the number of ICAs. Its incidental effects are credited with increasing child abandonment, such as: that the birth mothers’ consent must be verified before relinquishment of her child; the birth of her child must be registered; and that she could retract her relinquishment up to six months following that decision.41 Article 13.1 This states that birthparents cannot give a valid consent for adoption within one week after birth. 41 Chan, W., ‘Raised in America: activists lead fight to end S Korean adoptions’, CNN, 2013. Also, Kim, Sook K., ‘Abandoned Babies: The Backlash of South Korea’s Special Adoption Act’, Washington International Law Journal, Vol. 24(3). 2015, at pp. 711, 720 and 725.

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Article 13.3-4 This requires a birth parent intending to relinquish a child for adoption to receive counselling from an adoption agency about the resources available to support them in parenting their child.

Article 11.4 This specifies that birth parents must appear in the Family Court to obtain judicial consent before relinquishing their child for adoption.

17.3.2.3

The Child Welfare Act 2008

The first iteration of this statute was as the Child Welfare Law 1961. In its current form, amended annually, it provides a governing legal framework for addressing child protection matters. It defines “children requiring protection” as “those who have no protector or are separated from a protector, or those whose protector is unsuitable for rearing children or incapable of rearing them, such as the protector abuses them”. The Act provides authority for children to be taken into state care with the caveat that birth parents retain their parental rights in respect of any child admitted to an institution or to foster care.

17.3.2.4

The Registration of Family Relations Law 2007

Amended at least annually since inception, the purpose of this Law as stated in Article 1 “is to prescribe matters concerning the registration of establishment of and changes in family relations such as the birth, marriage, death, etc. of people and other matters concerning certification thereof”. In response to criticism that the 2012 requirement to register births made their unmarried mothers vulnerable to social and employment discrimination and therefore disinclined to register children, the Law was amended in 2015. The amendment aimed to protect people’s privacy so that sensitive information such as adoptions, children born out of wedlock, and divorces, will not be accessible by employers and others seeking background information.

17.3.2.5

Special Cases Concerning Adoption Promotion and Procedures Act 1995

This legislation corrected the flaws in the Act on Special Cases Concerning Adoption Act 1976 which in turn had updated and amended the Special Cases Concerning Orphan Adoption Act 1961. The revised law aimed to eliminate obstacles to domestic adoption and to make post-adoption services for intercountry adoption compulsory. The government simultaneously introduced measures to provide adoptive families with housing loans, medical expenses, educational costs, and living expenses. However, the tradition of

17.3 Overview of Principles, Policy and Law

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valuing blood ties and of secrecy in relation to adoption proved resistant to change. Consequently, the policy to phase out intercounty adoption was withdrawn in August 1995.

17.3.2.6

The Civil Code 1958

One of three fundamental laws, the Civil Code—an enormous piece of legislation— has been subject to seven revisions since it was first introduced. For present purposes, the section dealing with parents and children is of most relevance, particularly Articles 772–777 which address the effects of adoption on the child and family.

17.3.3 International Law South Korea acceded to the 1980 Hague Child Abduction Convention in 2012, ratified the Convention on the Rights of the Child in 1991 and has recognized most major international instruments relating to children. It signed the Hague Convention in 2013, which it has yet to ratify (see, further, Sect. 4.4).

17.4 Regulating the Adoption Process The two forms of adoption—simple and full—are regulated differently. Eligibility for the first, also referred to as ‘private’ adoption, requires all parties to be resident within the jurisdiction and it must be evidenced by a specific adoption form, signed and witnessed, and then submitted to city hall to be formally registered. The second requires compliance with the standard statutory procedure and confirmation is subject to a Family Court hearing.

17.4.1 Length and Breadth of Process Signing the Hague Convention required South Korea to have in place the components previously absent in its adoption process: particularly the pre-placement counselling phase and the information disclosure procedures. The machinery of the process has been re-engineered over the past decade as the government strives to shift the process more towards promoting domestic adoption and less towards its established focus on facilitating ICA.

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17.4.2 Role of Adoption Agencies and Other Administrative Bodies Many decades of experience of international adoption has resulted in a well used pathway, with very accessible professional agencies and social work staff on hand, to ease the stress for birth parents and prospective adopters through the adoption process. The body of central importance to this process is the Ministry of Health and Welfare (MoHW).

17.4.2.1

Adoption Agencies

The MoHW continues to monitor the independent adoption agencies and manage the state agencies and the foster carer system. As regards ICAs, three recognised accredited adoption agencies are currently operating in South Korea: Holt, Eastern Social Welfare Society and the Social Welfare Society.42 They are also required to facilitate domestic adoption.43 South Korea has a number of agencies that specialise in post-adoption culture familiarisation work or in birth parent counselling. The Special Adoption Act 2012, Article 20(3), stipulates that “no foreigner shall be the head of an adoption agency”. Article 21 lists the following as the duties of adoption agencies: (1)

(2) (3)

(4)

(5)

The head of an adoption agency shall protect the rights and interests of a person whose adoption is sought, and make every endeavour to find lineal ascendants, such as his/her parents. In mediating an adoption, the head of an adoption agency shall examine the matters prescribed in Article 10 with respect to persons to be adoptive parents. The head of an adoption agency shall educate persons to be adoptive parents for child rearing prior to the adoption and give custody of the adopted child and his/her personal records, etc. to the adoptive parents or the persons to be adoptive parents as prescribed by Ordinance of the Ministry of Health and Welfare, and then report the results thereof to the Governor of the relevant Special Self-Governing Province or the head of the relevant Si/Gun/Gu. For the efficient performance of adoption affairs and the establishment of a cooperative system among adoption agencies, the head of an adoption agency shall provide Korea Adoption Services established under Article 26 with information on the adopted children and their families, as prescribed by Ordinance of the Ministry of Health and Welfare. The head of an adoption agency shall keep records of the matters related to adoption affairs as prescribed by Ordinance of the Ministry of Health

42 Other ICA related agencies include: International Korean Adoption Service; Global Overseas Adoptees Link; Bethany Christian Services; and KoRoot. 43 Other agencies with domestic adoption related services include: Holy Family Child Adoption Center; Star of the Sea Children’s Home; and Mission to Promote Adoption in Korea.

17.4 Regulating the Adoption Process

(6) (7)

741

and Welfare. In such cases, the records on the adoptions may be stored electronically. The records on adoption affairs prescribed in paragraph (5) shall be permanently preserved for post adoption services. The scope and details of information referred to in paragraph (4) and matters necessary for the preservation of records on adoption and digital records referred to in paragraph (5) shall be prescribed by Ordinance of the Ministry of Health and Welfare.

Under Article 38 of the 2012 Act an adoption agency will have its authorisation to operate suspended or revoked if it fails to meet certain standards or behaves improperly. Korea Adoption Services (KAS) When changes to the adoption process were launched in 2012, a special government agency, Korea Adoption Services (KAS), was set up to align processes with the requirements of the Hague Convention. The Special Adoption Act 2012, Article 25(1), specifically states that a primary purpose of this agency is to encourage domestic adoptions. KAS, which provides a counselling service for domestic and international adoptions and a centralized adoption database system for adoptees and their adoptive and birth parents, will become the Central Authority for all adoptions once the Hague Convention has been ratified. Article 26(4), declares the following to be the duties of this agency: 1. 2. 3. 4. 5.

Operation of an integrated database necessary for searching information on adopted children, adoptive families and natural families; Establishment of, and linkage between, database on adopted children; Research and development on domestic and foreign adoption policies and services; International cooperation works relating to adoption; Other duties entrusted by the Minister of Health and Welfare.

Under Article 30(1) of the 2012 Act, KAS is managed by and is accountable to the Ministry of Health and Welfare.

17.4.3 Role of the Determining Body The Ministry of Health and Welfare governs matters relating to children and issues the mandatory emigration permit necessary for every child leaving the country under ICA procedures. The statutory adoption process caters for ‘full’ adoptions and is subject to determination by the Family Court.

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Family Court

The Special Adoption Act 2012, as revised in 2011, introduced the requirement that all adoptions be approved by the Family Court.

17.4.4 Registration The revised requirements of the Special Adoption Act 2012, included an instruction that the status of an adopted child was to be registered with the authorities as the biological child of the adopters.

17.5 Threshold For Entering The Adoption Process: Eligibility and Suitability Criteria In South Korea the statutory adoption process is governed by the Special Adoption Act 2012. It is consensual, meaning that the child has been voluntarily relinquished by the birth parent/s, or found abandoned or has been otherwise designated, under Article 1, as “in need of protection” as defined in Article 3, sub paragraph 4 of the Child Welfare Act. The process is judicially determined.

17.5.1 The Child Article 9 of the Special Adoption Act 2012 states the eligibility requirements for a child to be adopted. Essentially such a child must be one ‘in need of protection’ and either: does not have a guardian; or whose parent has consented to the proposed adoption; or whose parent has been deprived of parental authority by a court ruling. The children entering the adoption process are almost always relinquished by unmarried birth parents. It has been said that: “since the 1950s, 80–90% of all South Korean children born to single mothers have ended up in orphanages and become eligible for adoption”.44 Those voluntarily relinquished or otherwise defined as ‘orphans’, are generally 12–16 months old at time of referral for international adoption and may have developmental delay. Once a child’s eligibility for adoption has been confirmed then, if he or she is being considered for ICA, a period of five months must elapse to allow for the alternative possibility of domestic adoption to be explored. 44 See,

Peterson, J., ‘Surprising Facts Behind Korean Child Abandonment’, 2017, at: https://www. huffingtonpost.com/entry/the-surprising-facts-behind-korean-child-abandonment_us_59dc0516e 4b0b48cd8e0a5be.

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17.5.2 The Birth Parent/s The birth parent/s are not permitted to consent to their child entering the adoption process until at least seven days have elapsed since the birth of that child.

17.5.2.1

Unmarried Mother

Where an unmarried mother is in a maternity home, her consent for an adoption placement will be sought just as soon as she is legally capable of giving it. Prior to the Special Adoption Act 2012, it was customary to acquire her written consent within 24 hours of the birth.

17.5.2.2

Unmarried Father

An unmarried father seldom has any engagement, legal or otherwise, with the adoption process: he is almost wholly excluded. Largely the reason for this is that the child concerned is legally defined as an ‘orphan’ and/or as ‘abandoned’, so there is no rationale for locating him.

17.5.2.3

Failed Parental Rehabilitation

There is no equivalent to the state programmes available in other western countries that aim to address failed parenting by providing skill development and support to enable safe parental care to be restored rather than have to consider the forced choice of nonconsensual adoption or longterm fostercare.

17.5.3 The Adopters: Eligibility and Suitability Criteria The Special Adoption Act 2012, Article 10, states the criteria to be met by all adopters. It requires that they have no criminal record, no history of drug abuse or of domestic violence and that they attend a mandatory childcare programme. Prospective adopters are required to be heterosexual, married for at least three years (no more than one divorce per spouse), be aged 25–44 at time of the home study approval, with an age difference between spouses of no more than 15 years.

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17 South Korea

Domestic Adopters

In an effort to generate more domestic adoptions, eligibility criteria have become somewhat more relaxed. So single applicants are now permitted. The adopter is only required to be more than 20 years of age and an age gap of 60 years is allowed between prospective adopters and child. Following abolition of the hoju system, the status of children in reconfigured family units—where a stepparent or relative assumes care responsibility for another’s child—that child can now be simply added to the family register—hoj˘ok—of the new paternal figure. This, perhaps, does away with any need to resort to adoption, in such circumstances, as would be the case in most western countries.

17.5.3.2

Intercountry Adopters

ICA adopters may be slightly older—25–49 years of age—at the time of approval if either: they have previously adopted from South Korea; or at least one parent is of Korean heritage. Unusually, South Korea does not permit single ICA adopters. Families cannot have more than four children already in the home. There are strict and extensive health requirements: all applicants should be free of any serious physical or mental illness, and have no criminal history. They must be prepared to allow an adopted child ‘religious freedom’.

17.5.3.3

Single and Same Sex Adopters

ICA applications are not accepted from either single adopters or from same sex adopters; single applicants are eligible for domestic adoptions.

17.6 Pre-placement Counselling The Special Adoption Act 2012, as revised in 2011, introduced the ‘Adoption Consideration System of Biological Parents’ which requires that a consideration period for a week must be provided for biological parents after the child’s birth to enable them to be counselled on the possibility of their continued parenting, offering preferential benefits for the child, and to be given information on the welfare benefits and services that will be available to support them should they decide to continue parenting. As intended, this respite period has encouraged some to reconsider and choose to keep their children. The counselling service is provided by the Korean Welfare Service (KWS)—including information and advice on alternative options—and is a prerequisite for that agency to accept a child for adoption. The Special Adoption Act then requires the birth parent/s to obtain consent confirmation from the Family Court. The

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next step is for KWS—or such other adoption agency as may be involved—to apply to the court for guardianship of the child.

17.6.1 The Korean Welfare Service Having taken a child into its care, KWS or other adoption agency will most usually then place him or her in a short-term foster home to facilitate medical checks, immunisations etc.45 while appropriate long-term arrangements are made. The short-term foster home will provide care for the child until his or her adoption is finalised.

17.7 Placement Rights and Responsibilities For the first 5 months following birth parent relinquishment, KWS will prioritise exploring the possibility of domestic adoption. Only when that option is exhausted, will the agency then consider the ICA alternative and begin the matching process.

17.7.1 Authority to Place KWS, or such other adoption agency as may be involved, will provide the birth parent/s with background information, photographs etc. of potential adopters as part of the matching process. Once a child is matched with an adoptive family, the child’s documents are submitted to the Ministry of Health and Welfare and an Exit Permit obtained.

17.7.1.1

Placement by Birth Parent

Under the Civil Code, any person can adopt a child by: (a) entering into an adoption agreement with the child and his parents; and (b) reporting the adoption to the relevant public office. If the child to be adopted is under thirteen years of age, his or her parents must assent to the adoption on his or her behalf. It is probable that this form of adoption is only available to those who are resident in South Korea. Anecdotal evidence would suggest that, though illegal, many domestic ‘adoptions’ are the result of placements arranged directly and privately between birth parent/s (almost always an unmarried mother) and a childless couple, who may be relatives or friends, and they then discretely register that child as their birth child in their family registry. Now that birth parents are legally required to register the birth of their child, 45 The

Hansuh Medical Clinic being the KWS facility most often used.

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this type of private ‘adoption’ may become less common. Otherwise, while the birth parent/s are very much encouraged to choose—or help select—suitable prospective adopters, they are required to do so in accordance with statutory procedures and in conjunction with an adoption agency.

17.7.2 Placement Supervision The statutory adoption process provides for the child to remain in their care facility— most usually a foster home—until such time as proceedings are completed and the Family Court has made its ruling. Until then the KSW retains its supervisory responsibility.

17.8 The Hearing All ICA applications are heard before the Seoul Family Court which sits informally and in private. The judge, having had the benefit of reports submitted by KWS, explores the applicant adopter/s motives and if satisfied that the proposed adoption would be in the best interests of the child, the application is provisionally granted.

17.8.1 Where Consent Is Available The Family Court will need to be satisfied that the consent given by the birth parent/s was not retracted at any point in the intervening six month period. At this stage, Article 11 of the Special Adoption Act 2012 requires the prospective adopters to have submitted the following to the Family Court: the child’s birth certificate, proof that the adopter/s satisfy the statutory eligibility criteria; consent to the adoption (as prescribed under Articles 12 and 13); and any other such documents as may be deemed appropriate by the Ministry of Health and Welfare for the welfare of the child. There is little likelihood of the birth father being involved at this point, or of his consent being sought.

17.8.2 Overseas Adoptions The Special Adoption Act 2012 makes special provision for overseas adoptions.

17.8 The Hearing

17.8.2.1

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Overseas Adoptions in Korea

Article 18 requires: A foreigner intending to adopt in Korea a child falling under any of subparagraphs of Article 9 shall, jointly with the guardian, apply for permission for adoption, to the family court having jurisdiction over the place of the registered domicile or residence of the child to be adopted, appending the following documents, as prescribed by Ordinance of the Ministry of Health and Welfare: 1.

Birth certificate of the child to be adopted;

2.

Documents to prove the eligibility of the person to be adopted which is prescribed in Article 9;

3.

Documents on the family condition of a person to be an adoptive parent prescribed in Article 10(1);

4.

Written consent to adoption under Articles 12 and 13.

17.8.2.2

Overseas Adoptions in Foreign Countries

Article 19 requires: (1)

(2) (3)

(4)

Upon receipt of a request from a foreigner, where the head of an adoption agency intends to provide adoption services to the foreigner, he/she shall file an application for permission to adopt a child with the family court, appending an emigration permit issued by the Minister of Health and Welfare. Where a foreigner residing overseas intends to adopt a child residing in Korea, he/she shall proceed with the adoption process through an adoption agency. When a child to be adopted has left Korea pursuant to an emigration permit and acquires the nationality of the adoptive country, the head of the relevant adoption agency shall report such fact to the Minister of Justice without delay, as prescribed by Ordinance of the Ministry of Health and Welfare, who in turn shall notify the agency for registration of family relationship having jurisdiction over the registered domicile of such child, to efface ex officio his/her nationality of the Republic of Korea. Upon receipt of the application referred to in paragraph (1), the Minister of Health and Welfare may refuse to issue an emigration permit in any of the following cases: 1. 2.

3.

Where a person to be adopted is a missing child, or is otherwise prescribed by Ordinance of the Ministry of Health and Welfare; Where the head of an adoption agency fails to conclude any agreement on the adoption affairs with the country of a foreigner who seeks the adoption or any adoption agency authorized by such country; Where the country of a foreigner who seeks the adoption is under a state of war or hostility with the Republic of Korea.

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17.8.3 Where Consent Is Not Available The Special Adoption Act 2012, Article 12, states that the need to obtain the consent of the birth parents of the child to be adopted does not apply in the following cases: 1. Where his/her natural parents are deprived of parental authority by a court ruling; 2. Where the consent of his/her natural parents cannot be obtained due to their unknown whereabouts. (2)

(3)

(4)

(5) (6)

Where natural parents cannot consent to adoption due to a cause provided for in the proviso to paragraph (1), the consent thereto shall be obtained from the guardian. Where it is intended to adopt a child falling under subparagraph 2 of Article 9, the consent to adoption of the Si having requested the protection shall be substituted for the consent to adoption under paragraph (1). Where it is intended to adopt a child of at least 13 years of age, the consent of the child shall be obtained in addition to that of the person authorized to consent under paragraph (1) or (2). The consent given under any of paragraphs (1) through (4) may be withdrawn before the permission referred to in Article 11(1) is granted. The consent to adoption under any of paragraphs (1) through (4) and the withdrawal of the consent to adoption under paragraph (5) shall be made in writing, and the matters necessary for the consent shall be prescribed by Ordinance of the Ministry of Health and Welfare.

17.9 Thresholds for Exiting the Adoption Process Under the Special Adoption Act 2012, Article 13, the Family Court must be satisfied that: counselling services were provided to the birth parent/s regarding the kind of supports available if they should decide to raise the child themselves and as to the legal effect of adoption, etc.; the child to be adopted was provided with sufficient counselling services concerning the effect, etc. of consent to the adoption; parental consent was given no earlier than one week after the birth of the relevant child and was not retracted during the following six months; and that no financial or other form of benefit was given, received or promised in return for that consent. A conspicuous and distinguishing characteristic of the adoption process in South Korea is the total absence of any accompanying case law which attests to its strongly consensual nature.

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17.9.1 The Welfare Interests of the Child The Special Adoption Act 2012, Article 4, states the ‘Principle of Adoption’ as being that: Adoptions under this Act shall be conducted in such a way that the interests of children shall be a matter of the highest priority.

17.9.1.1

The Paramountcy Principle

There is no requirement in domestic law that the welfare interests of the child be treated as a matter of paramount importance in adoption proceedings i.e. as prevailing over all other considerations.

17.9.1.2

Voice of the Child

If aged thirteen or older, the child’s consent is necessary. If younger than 13, then his or her parents must assent to the adoption on the child’s behalf.

17.9.2 Representing the Child’s Welfare Interests There is no provision for independent representation of the child’s welfare interests— or legal rights—in adoption proceedings before the Family Court. Instead, the Court must rely upon the social work report from KWS, or other adoption agency, and on any direct probing that may occur during the hearing at judicial discretion.

17.10 The Outcome of the Adoption Process Once the adoption hearing is completed and permission to adopt has been given, the child’s birth parents are duly notified. They have 15 days from the date of notification to challenge the ruling. At this point placement authority transfers from the foster parents to the adopters. During that interlude, final medical checks on the child are completed and visa requirements, if necessary, are fulfilled.

17.10.1 Adoption Order The Family Court is left with the stark choice of making or refusing an adoption order: there are no alternative options judicially available; nor is there any statutory

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provision permitting conditions to be attached to an adoption order—such as for future contact between birth parent/s and adoptee. Under the Special Adoption Act 2012, Article 11, the Family Court may refuse to grant an adoption application on the grounds of “the motive, parenting competency, and other circumstances of a person to be the adoptive parent for the welfare of a person to be adopted”. Given the default of returning the child to institutional care, the Family Court may regard the making an adoption order as something of a forced choice.

17.10.2 Alternative Orders There are no alternative orders available to the Family Court at this stage. However, it may be that in the event of an adoption application being refused the birth parent/s, or other persons, could subsequently be appointed legal guardians of the child under Article 909 of the Civil Act.

17.11 The Effect of an Adoption Order One fairly immediate outcome of a granted adoption application is the transfer— under Article 31 of the 2012 Act—of the named child to the adoptive parents.

17.11.1 The Child The Special Adoption Act 2012, Article 14, declares that the child adopted “shall hold the same status as a child adopted through full adoption under the Civil Act”. Article 772 of the latter addresses the ‘Parental Lineage and Degree of Relationship of Adopted Child’ and essentially states that the legal relationship between an adopted child and their adopters will, from the time of adoption, be in all respects the same as if the child had been born to those married adopters. The adoptee will only retain inheritance rights in respect of their birth parents estate if the adoption was ‘simple’ rather than the ‘full’ form as provided for under the Special Adoption Act 2012.

17.11.1.1

Citizenship

Adoption of itself provides no guarantee that the adoptee will automatically acquire the citizenship of their adopters. In the US, for example, the Child Citizenship Act 2000 granted citizenship status to all children adopted after 2001 into the US by US citizens, but this was not retrospective in its effect. Many, perhaps thousands,

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of adoptees from South Korea and elsewhere would not have acquired citizenship unless they or their adopters had specifically applied for it; it is believed that very many did not.46 Notably, in 2011, S Korea extended citizenship status to ICA adoptees, allowing all those born in S Korea but raised overseas to claim dual citizenship.

17.11.2 The Birth Parent/s Once the statutory adoption process is successfully completed all legal rights of the birth parents in relation to the adoptee are permanently terminated.

17.11.3 The Adopters The corollary to the above is that on successful completion of that process all legal rights of the birth parents in relation to the adoptee are permanently vested in the adopter/s.

17.11.4 Dissolution of an Adoption Order A singular characteristic of the adoption process in this jurisdiction is the extent of the statutory provisions enabling the adoption to be overturned.

17.11.4.1

Cancellation

Under the Special Adoption Act 2012, Article 16: (1)

(2)

Where the natural father or mother of an adopted child cannot give consent to adoption under Article 12(1) 2 due to any cause not attributable to himself/herself, he/she may file a claim for cancelation of adoption with the family court within six months after the date he/she becomes aware of the adoption. When a judgement on the claim for cancellation of adoption becomes final and conclusive or the judgement becomes effective, the family court shall notify such purport to the local government having jurisdiction over area in which the family court is located.

46 See, further, for example at: https://www.nytimes.com/2017/07/02/world/asia/south-korea-adopti

ons-phillip-clay-adam-crapser.html.

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17.11.4.2

Dissolution

Under the Special Adoption Act 2012, Article 17: (1)

Adoptive parents, an adopted child, or a public prosecutor may request the family court to dissolve the adoption, if any of the following cases arises: 1. 2.

(2)

(3)

Where the adoptive parents abuse or abandon the adopted child or significantly undermine the welfare of the adopted child; Where it is impossible to maintain the adoptive relationship due to the inappropriate behavior of the adopted child toward the adoptive parents.

If a child with regard to whom the dissolution of adoption is requested is at least 13 years of age, the family court shall hear and respect the adopted child’s opinion. When the judgement on a claim for dissolution of adoption is confirmed or the judgement becomes effective, the family court shall notify the local government having jurisdiction over an area in which the family court is located.

The Registration of Family Relations Law 2007 (as amended), Article 63, provides for the registration of the dissolution. The Civil Act, Article 775, provides that “relationships arising due to adoption shall be terminated by annulment or dissolution of the adoptive relationship”.

17.12 Post-adoption Support Services The provision of post-adoption support services is a requirement of the Special Adoption Act 2012, Articles 25(1), 34 and of the Special Adoption Act Enforcement Decree, Aricle 5. The Korea Adoption Service (KAS) is the government body designated to deliver such services which it does for ICA and domestic adoptees and adoptive families.

17.12.1 Adoption Support Services The provision of post adoptive services, a Hague Convention requirement, is mandated under the Special Adoption Act 2012, Article 3(4), which directs: (4) (5)

Support for adopted children and adoptive homes. Provision of counselling and welfare services for smooth adaptation after adoption;

This is reinforced by Article 34 which states that “for the purpose of making sound environments in which to raise adopted children, the State and local governments shall provide social welfare services, such as counselling or use of social

17.12 Post-adoption Support Services

753

welfare facilities, to the families which have adopted children through an adoption agency”. Article 35 provides for the possibility of paying, where necessary, “fostering allowances, medical expenses, educational fees and other child benefits” in respect of an adopted child. Article 25 details the nature of the post-adoption services to be provided “for one year after the adoption for the sake of mutual adaptation between adoptive parents and an adopted child: 1. 2. 3.

Observing the state of mutual adaptation between the adoptive parents and adopted child and services necessary for the adaptation; Providing information necessary for rearing children in the adoptive family; Opening a window through which adoptive family members can obtain counselling at any time, and placing of a counsellor therefor. (2)

(3)

The head of an adoption agency shall, through a cooperative agency of the relevant country, confirm whether an adopted child has acquired the nationality of the country to which he/she is adopted, and report the result thereof to the Minister of Health and Welfare through the president of Korea Adoption Services established under Article 26. The head of an adoption agency shall hold homecoming events and implement other programs prescribed by Presidential Decree for children adopted overseas.

KAS, the service provider, describes its services as: supporting adoptees in forming their identities and becoming healthy members of society; supporting adopted persons in settling into adoptive families and further satisfying adoptee’s needs; and continuing programs that assist an adopted individual and strengthen his/her social relationship in general. Post adoption reports are required to be submitted to KWS at least 4 times within the first year. There is now something resembling a thriving industry of specialist tours in Korea for adult adoptees wishing to re-connect with the culture of their birthplace and perhaps to also meet with birth family mambers or visit orphanages. Many adoption agencies offer such cultural tours.

17.13 Information Disclosure, Tracing and Re-unification Services The Special Adoption Law 2012, Article 6, together with becoming a signatory nation to the Hague Convention in 2013, introduced greater transparency into the Korean adoption process. Adoptees aged 19 or older are now entitled to seek identifying information regarding their birth parents. This right to information disclosure is for the adoptee only: it is restricted to information about birth parents, rather than birth family; there is no reciprocal right for birth parents. It gives minimum recognition to an adoptee’s entitlement, under UN CRC, to their right to an identity.

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17 South Korea

17.13.1 Information Disclosure The Special Adoption Act 2012, Article 36, provides adoptees with a right to request disclosure of information on his/her adoption which is held by Korea Adoption Services or the relevant adoption agency: this right is available to an adoptee who is a minor with the consent of his/her adoptive parents. The Korea Adoption Service (KAS) provides an Adoption Information Disclosure service to adoptee applicants in accordance with Article 14 of the Enforcement Decree of the Special Adoption Act. However, it warns that the provision of information relating to the biological parent’s personal information and other confidential information may be limited. For those aged 19 years or older the process requires adoptees to submit an application in person for disclosure of adoption information (accompanied by copy of ID). For those aged less than 19 years of age the process requires adoptees to submit an application form for adoption information disclosure, together with consent from adoptive parents and a document indicating the adoptee’s agreement to request adoption information, a certificate indicating the adoptee’s age, a document proving family relations between the applicant and the consenter. The agency will respond by reviewing adoption files and retrieving information on birth parents and adoption background and by beginning a search for birth parents through Korea Adoption Services archives, orphanages, and government offices. In cases where biological parents consent to information disclosure: the requested information is disclosed; and support is provided via correspondence and/or meetings between the applicant and the biological parents. In cases where the biological parents do not consent to information disclosure: then, under Article 36(1), the information disclosed will not include the natural parents personal information; a consultation service may be provided if necessary. This facilitates adoptee access to some information even if the birth parents have registered a veto on disclosure of information about them. In special circumstances, such as for medical purposes, the consent of the birthparents is not required for the adopted child to receive the necessary information. In cases where the whereabouts of the biological parents are unknown the applicant is notified accordingly.

17.13.2 Registers The family register—hoj˘ok—delineates a family’s lineage over many generations, including a record of all births, such as those of children adopted, and is readily accessible to all. The fact that anyone could access this information was a potential difficulty for single mothers, and those who had relinquished their children or who were seeking employment or new partners, so it was amended in 2015 to protect the privacy of such mothers.

17.13 Information Disclosure, Tracing and Re-unification Services

755

The Registration of Family Relations Law 2007 (as amended), Article 14.4(2) provides that: the full adoption relation certificate referred to in Article 15(1) 5 shall be requested only in cases falling under any of the following subparagraphs 1.

Where an adopted child files such an application when he/she reaches the age of majority;

2.

Where the contracting parties to a marriage intends to inquire into kinship referred to in Article 809 of the Civil Act;

3.

Where there is a commissioning by the court for inquiry into facts, or an investigation agency files a written application for investigative purposes;

4.

Other cases prescribed by the Supreme Court Regulations.

17.13.2.1

The Adopted Children Register

There is no adoption register as such but the Registration of Family Relations Law 2007 (as amended), Article 61, requires the following matters to be registered: 1.

2.

Name, place of family origin, date of birth, resident registration number and place of registration of the person to adoption (name, date of birth nationality and alien registration number when the person up for adoption is a foreigner) and gender of the adoptee; Name, resident registration number and place of registration of the birth parents of the adoptee.

KAS offers an ‘Adoption Information Disclosure’ service, accessible via its website.47

17.13.3 Conditional Access The birth parents may enter a veto against disclosure of any identifying information.

17.13.4 Tracing and Re-unification Services Adoptee advocacy agencies such as those in Seoul—TRACK, ASK, and G.O.A’L.— are pooling their resources and working with KAS to build a system to facilitate those adoptees wishing to trace and locate their birth families.

47 See,

further, at: https://www.kadoption.or.kr/en/board/board_list.jsp?bcode=43_8.

756

17.13.4.1

17 South Korea

The Adoption Agency

There have long been a number of international adoption agencies based in South Korea, including Holt and Bethany Christian Services. There are also others with a focus on domestic adoption such as the Holy Family Child Adoption Center and Star of the Sea Children’s Home. Since the signing of the Hague Convention in 2013 all are obliged to maintain and preserve records on adoptees and birth parents. The Ministry of Health and Welfare and the Korea Adoption Service (KAS) have overall responsibility for monitoring adoption agency functions.

17.13.4.2

The Role of Adoption Support Agencies

The KWS Motherland Tour Programme matches overseas adoptees with volunteers and forms groups to experience an 8-day-long programme filled with activities designed to introduce adoptees to Korean culture.

17.13.4.3

Agency Records

The Special Adoption Act 2012, Articles 6, 21.4 and 36, together with the Enforcement Rule of the Special Adoption Act, Articles 23 and 25, require agencies to permanently archive all adoption related files. However, it would seem that not all adoption agencies have been willing to fully share information with KAS and some have falsified or even destroyed records in order to protect the confidentiality of their clients.

17.14 Conclusion Adoption in South Korea would seem to have a number of characteristics but the most distinguishing is the large number of children available but apparently not adoptable. The association between abandonment and adoption has always been a characteristic feature of the South Korean adoption process. Unusually—certainly in comparison with the common law countries—there is no real legal obstacle to adopting abandoned children: in almost all cases, their status as ‘voluntarily relinquished’, ‘orphan’ or ‘abandoned’ negates any need to negotiate parental rights.48 Given the extent of domestic post-adoption government support—financial and other—and the ICA waiting lists, the obstacle to adoption lies not in economic considerations but in the importance attached to bloodlines. This explains why Koreans do not want to adopt orphans—children of unknown origin—and why, therefore, so many are consigned 48 See, further, Burwell, S.N., ‘Child Abandonment and Adoption in South Korea: A Post-Korean War and Present-Day Analysis’, op cit.

17.14 Conclusion

757

to orphanages and remain there to age out when they have to leave and find their way in an unwelcoming society. It also explains another characteristic of adoption in this country—the lack of openness. In a society which prides itself on Confucian values, the public and family shame directed at those whose private conduct violated those values—as would be very evident in the family registry—provides an incentive for a violator to avoid such exposure, and protect their children from social stigma, by seeking annonymity. For many tens of thousands of young single mothers the shelter of annonymity was only available through the contrived social constructs of “orphan” and “abandonment” leading to the surrender of their child to international adoption or to long-term care in an orphanage and in either case without any accompanying information likely to identify the parent/s. The legal requirement, introduced in the Special Adoption Law 2012 (amended in 2011), requiring the registration of all births, was intended to put in place the basic building block for openness in adoption—a database of basic identifying information accessible to adoptees and birth parents with the latter’s consent—to be collated by the newly established Korean Adoption Service (KAS). Unfortunately, it had the unexpected side effect of diverting young single mothers, fearing exposure, from registration to abandonment. If adoption is to become more ‘open’ and to significantly impact the permanently large orphanage population in South Korea, the issue of domestic cultural discrimination against adoptees and adopters will have to be overcome. If not, the government will have to rely, without equivocation, on its previous policy of—koasuch’ulguk—orphan export. Government policy has for decades been pivoting on the shame fulcrum as it tries to achieve a balanced commitment to domestic and international adoption.

Chapter 18

Japan

18.1 Introduction A constitutional monarchy with a population of 126 million in 2018, its legal foundations underpinned by the Civil Code but accommodating customs from its imperial past (though the powers of the Emperor are now much curtailed), Japan is in many ways an intriguing mix of tradition and modernity. The cultural context it provides for adoption is quite unique among modern developed nations and results in idiosyncrasies of law and practice that offer an interesting contrast with the experience of other jurisdictions studied, particularly those sharing a common law heritage. Although its population is twice that of the U.K., the proportion of children adopted is far lower and the complexity of Japanese law governing the adoption of adults, is without any comparable precedent among developed nations. In this chapter the concern in applying the template is as much to identify the ways in which Japan fails to fit the mould as to gather data equivalent to that found in respect of other jurisdictions. However, the chapter unfolds in the same way, beginning with a brief historical background and an outline of the social context. It then deals with the emerging characteristics of the adoption process and the modern influences on its development before providing an overview of modern adoption policy and law. In the main, as in the other jurisdiction specific chapters, it focusses largely on the regulatory framework: dealing with the roles of the parties and agencies involved; examining the thresholds for entering and exiting the process; the orders made by the court and their effects; and the consequences in terms of information rights etc. for all parties. The chapter concludes by considering the more singular characteristics of the adoption process in Japan and their significance.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_18

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18.2 Background In the mid-nineteenth century Japan’s policy of isolationism, successfully maintained for two and half centuries, came to an end. The ensuing Meiji era saw the introduction of numerous western institutions including a modern government and legal and parliamentary systems which accompanied the steady rise of Japan as a military power, an empire and a global centre for trade and commerce. In 1896 the Japanese government established the Civil Code, which was modeled closely on European law as derived from Roman precedents but not to the exclusion of traditional law and custom. As Morris at the time remarked: “while their Civil Code contains many Articles on the subject of adoption which are taken almost word for word from certain European Codes, and have an undoubted ancestry in the Corpus Juris Civilis, there is also a great quantity of material relating to customs indigenous to Japan.”1 While the Civil Code continues to govern adoption and other family law matters, it was completely revised in 1947 and is now totally different from the Civil Code of 1898. Parts 4 and Part 5 of the current Civil Code govern family matters.2 Nonetheless, the assimilation of selected aspects of German, French and English legal systems never wholly displaced the traditional values and generations of custom and practice rooted in Confucism and Buddhism that had become integral to Japanese culture. Centuries of wary engagement with the outside world, coupled with the cultivation of elegant codes of social conduct, left a legacy that continues to permeate Japanese institutions, modes of governance etc. and is perhaps particularly evident in all aspects of family law including adoption. An inward looking and very formal society, surrounded by quite different Asian cultures, Japan has assiduously developed and finessed rules for relationships within the family, between families, and between family and the state, that are quite distinctive and in that respect set this nation apart from its neighbours and from the developed nations of the west. Private adoptions, arranged directly between birth parent/s and adopters, began to become subject to state control in 1871 when the Meiji government introduced the first Family Registration Act which made family registration compulsory and included a requirement that adoptions be registered. However, it was not until the years following the end of World War II, in response to an urgent need to provide for the many war orphans and refugees and within the framework of the Civil Code then imposed upon the defeated nation, that the state and other parties began to develop their contemporary role in the adoption process. The growing public concern generated by reported cases of ‘baby farming’ in those years led eventually to the setting up of the first adoption agencies which commenced their mediatory function,

1 Morris,

R., ‘Adoption in Japan’, 4 Yale Law Journal, 1894, p. 143. Civil Code was mainly based on the contemporary draft of the German Civil Code. Parts 1, 2 and 3 were implemented in 1896 and part 4 (family) and 5 (succession) in 1898. After some revision, the current Civil Code differs from its 1896 and 1898 predecessors and although most of parts 1, 2 and 3 remain similar to the original, parts 3 and 4 were completely revised in 1947. Further revision in 2019 and 2019 brought changes to the provisions relating to succession and special adoption.

2 The

18.2 Background

761

later attracting state subsidies, of arranging the placement of children with suitable prospective adopters.

18.2.1 The Social Context Giving Rise to Adoption In Japan the concept of adoption or yoshi has a much wider meaning than in modern western nations: it has never been particularly concerned with either providing children for infertile couples nor with finding homes for children in need; its purpose has always been to candidly benefit adopters rather than children. Before World War II, for example, adoption placements of children were often informally and directly made within the extended family and with non-relatives for purposes such as to provide the adopters with a male heir, or an extra pair of hands to work the family farm. Its social significance, as a means of conferring status, is much more important in Japanese society—where, in 1912, it was noted to be the ‘corner-stone of family law’3 —than in other developed nations. To get a sense of what adoption means in a Japanese context it is first necessary to consider the cultural significance of ‘family’, the importance of ‘ancestor worship’ and the support role provided by ‘adult adoption’. Family Public respectability is highly valued in Japanese culture. This is particularly evident in the importance attached to the traditional, patriarchical and patrilineal, family unit as reinforced by the Iye system.4 The position of the eldest son in each nuclear family unit, and collectively within the kinship network, is of continuing importance in maintaining the patrilineal integrity, autonomy and relative status of the whole extended ‘family’. The concept of ‘family’ in Japan, as delineated in the old Civil Code, has characteristics of extensiveness and duration, attracting a veneration that distinguishes it from corresponding interpretations in other modern western societies.5 It more closely resembles a clan system consisting of many interrelated family groups with their own distinct sense of ‘house’, group identity, unique bloodline, lineage and proud history. Buddhism, combined with more primitive Shinto beliefs with its emphasis on ancestral worship, has served to underpin the central social significance of the family. The concept has boundaries that extend not only in linear terms, to broadly 3 See,

Hozumi Nobushige, The New Japanese Civil Code, 1912.

4 See, Matsushima, Y., ‘Japan: What has made Family Law Reform go Astray?’ in The International

Survey of Family Law, ISFL, Martinus Nijhoff Publishers, The Hague, 1999, pp. 193–206 where this explanation is offered: “Iye was the vertically extended family system in which every family member was subject to the control of the head of the family and women were always subordinate to men” at p. 197. The Civil Code reforms of 1947 ostensibly abolished the Iye system. 5 See, Minamikata, S., Family and Succession Law in Japan (3rded), Kluwer Law International, 2020.

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18 Japan

include kinship or clan relations, but as also in temporal terms to include long dead relatives. Ancestor Worship Ancestor worship, as Hozumi noted in 1901,6 survived the incorporation of European jurisprudence into the Civil Code. A century later it still maintains its cultural significance, despite Japan’s adherence to international conventions. The ritual offering of food, drink or flowers, accompanied by incense and reverential postures and handclapping, that can be witnessed at public shrines is repeated privately in many Japanese homes. This ceremony of rendering homage to family or clan ancestors is common to both the Shinto and Buddhist traditions and signifies the wish and need of living family members to invite the spirits of the deceased to participate in the family’s ongoing life events. It falls to the family ‘head’ to ensure that memory of the dead is kept alive in the family by maintaining these rituals of respect and obesiance: a duty, in effect, to ensure family posterity; the importance of which means that the position of family ‘head’ has always been held in great esteem. Filial piety was a sacred duty owed to the ancestors and if all else failed this could be achieved through adoption. “Death without an heir”, as Hozumi once observed “was considered to be the greatest filial impiety” and for that reason “in no department of jurisprudence is the relation between ancestor worship and law more clearly shown than in the law of adoption”.7 In circumstances where there was a failure of male issue, it was the duty of the family ‘head’ to acquire a son by adoption: preference being given to a male from within the extended family or clan to preserve lineage. Article 848 of the Civil Code even permitted the adoption to be achieved posthumously, by provision in a deceased’s last will and testament, though this did not survive the 1947 revision. Many Japanese continue to view their families as a privileged, almost sacred group. Within this rather feudally organised society, marriage reinforced by adoption confirmed status and social identity. The adoption preference for males, drawn from within the kinship network, remains evident today. In recent years the nuclear family unit has become as ubiquitous in Japan as elsewhere but while this has diluted the traditional importance of the wider collective intergenerational sense of ‘family’ it is far from wholly displacing it. Adult Adoption Adult adoption is not uncommon among other developed nations, but the purposes it serves in Japan are often quite specific to its culture and they now constitute—as they have for many generations—the main legal and social functions of adoption in this country. Among the unique characteristics of the Japanese process are that it produces a very high rate of legal adoptions of which, in the past, only a small minority related to children: consequently, the process evolved largely to reflect the purposes and needs of adult adopters; designed more to achieve the latter’s benefit 6 See,

Hozumi, N., Ancestor-Worship and Japanese Law, Tokyo, Maruya & Co Ltd Publishers, 1901. 7 Ibid., at p. 56.

18.2 Background

763

than the welfare of a child. However, in recent decades, adoption like Japanese society in general has been changing. According to a Ministry of Justice survey in 2010, the proportion of adult adoptions had by then fallen to about 40% (11,952 cases in 2010).8 The survey revealed 295 cases where the age difference between adoptee and adopting parent was less than five years and 189 where adoptees repeatedly, had their adoptions revoked and then shortly afterwards became re-adopted. In short, adoption was often being used for financial reasons, as a legal expedient to avoid debts, obscure bankruptcy or for tax advantages. While it is not at present possible to explore the many anomalous facets of adult adoption and their cultural significance, some mention must be made of those which so markedly distinguish the Japanese use of adoption from that of other countries. Bryant identifies three salient aspects: adoption of sons-in-law; adoption of extra-marital lovers9 ; and adoption to reduce income tax.10 Of these, the first is most relevant for present purposes. In Japan, adoption like marriage, continues to be viewed as a means of conferring status: on adopters as much as on the adopted, in fact “in all times past it has been held to be almost as important a factor as marriage itself in the making of families”.11 An adult male, selected for his lineage and capacity to continue that of the adopters, could prove an adroit social investment for a family in need of an heir.12 As Morris observed, when considering the social role of adoption in the late nineteenth century, “certainly its most important function in Japan, is in the case where it is employed as a means for transferring the headship or katoku, and the property of a house”. The placement of a son in a combined marriage and adoption arrangement with a family with a daughter but no male heir, was a not uncommon practice; the adoptee/sonin-law being known as a muko yoshi (adopted husband). The marriage had to occur first. Under the current Civil Code, this no longer happens because the Iye system has 8 Alternatively, see Hernon, M., ‘Adoption in Japan’, in Tokyo Weekender, (May 9th 2015) where he states: “the vast majority of adoptees here are adults—particularly males in their 20s and 30s—often used as a tool to keep family businesses running, if there is no biological heir or if the biological heir doesn’t seem like a suitable candidate to take over the company. At the same time tens of thousands of kids are still being brought up in institutions rather than a family-based setting”. At: https://www.tokyoweekender.com/2015/05/adoption-in-japan-the-children-left-behind/. 9 The adoption process has long served as a means whereby a married person may legally adopt his or her lover. (See, s 796—A married person shall only adopt or be adopted by another with the consent of his/her spouse,; provided, however, that this shall not apply in the case he/she adopts or is adopted with his/her spouse jointly, or his/her spouse is incapable of indicating her/his intention.) Adoption has often provided the means for discretely establishing a legal relationship for same sex couples, almost always male. The related case law, particularly as regards conflicting inheritance rights, is intriguing. See, further, Bryant, T.L., ‘Sons and Lovers: Adoption in Japan’, The American Journal of Comparative Law, Vol. 38, pp. 299–336, 1990. 10 Ibid., for an authorative account of adult adoption in Japan. 11 Morris, R., ‘Adoption in Japan’ op cit at p. 145. 12 In keeping with the ancient Roman practice of ‘adrogatio’ or ‘adrogation’ whereby a sui iuris male was adopted to became the legal heir of a childless man so as to ensure the continuity of the family name and the undertaking of religions rituals and memorials after his death (Gai institutiones 1.99-107 and later Digesta Iustiniani 1.7.2 (preamble)). See, further, Borkowski, A., Textbook on Roman Law, London: Blackstone, 1994, 2nd Edition, p. 136–137 and Kaser, M., (translated by Dannenbring, R.,), Roman Private Law, Pretoria: South Africa, 1993, 4th Edition, p. 310.

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now been abolished. Girls were also adopted (known as yojo), sometimes to provide care for the elderly but for many other reasons as well.13 A married couple could be adopted into an unrelated family. The adoption of a son-in-law continues its historical legal and social functions of providing an heir to carry on the family line, its business,14 its ancestor worship duties and to undertake care responsibility for elderly parents (the latter being an attraction for many elderly persons as it brought with it an assurance that care responsibility would fall to their daughter rather than their daughter-in-law). Paulson, writing in 1981, noted that 55% of all adoptions were adoptions of sons-in-law15 but that percentage has fallen in the intervening years.

18.2.1.1

Marriage and Family Breakdown

Traditional Japanese society, with its hierarchically organised families, stratified in accordance with bloodlines and with its hallmarks of privacy respectability and public duty, began to yield to the pressures typical of modern western societies in the latter half of the twentieth century.16 One indicator of change was the fall in the marriage rate.17 Whereas the annual number of marriages in Japan exceeded one million couples in the early 1970s, by 2010 this had fallen to 706,000 and by 2018 had reached 586,481. However, the more revealing indicator perhaps has been the increased recourse to divorce18 which more than doubled from 142,000 in 1980 to 290,000 in 2002 before easing somewhat to 235,000 in 2012 and to 208,333 in 2018 (in the context of a falling population). A feature of Japanese family law is the ease with which a consensual divorce may be obtained: most are consensual (in 2018, 120,497 divorces were by consent), reached by voluntary agreement on matters to do with property and children, and involve little legal process at all. These so-called kyogi rikon have consistently accounted for 90% of all divorces during the postwar era.19

13 The

author acknowledges the advice of Satoshi Minamikata on this matter. practice of adopting men in their 20s and 30s to rescue biologically ill-fated families and ensure a business heir has been held to be unique to Japan: see, Mehrotra, V., et al., ‘Adoptive Expectations: Rising Sons in Japanese Family Firms’, March 2011, NBER Working Paper No. w16874, available at SSRN: https://ssrn.com/abstract=1784152. 15 See, Paulson, ‘Family Law Reform in Postwar Japan: Succession and Adoption’, PhD dissertation, Dept of History, University of Colorado, 1984, at p. 289. 16 See, for example: Cabinet Office, ‘Survey on Views relating to Marriage and Creation of Family’, (2014), pp. 104–105; National Institute of Population and Social Security Research, ‘The National Fertility Survey’; and the ‘Annual Population and Social Security Surveys’ (2015). 17 In 2018 it was 4.7 (per 1000 population). 18 In 2018 it was 1.68. 19 See, MHLW, Vital Statistics. 14 The

18.2 Background

18.2.1.2

765

Unmarried Mothers

Unmarried mothers are a rarity in Japan. In 1980 the estimated rate of births to unmarried women was a mere 0.8% of all live births, reaching 1.6% in 2000 and 2.1% in 2006 (by way of comparison, in the U.S. the equivalent figures were, respectively— 18.4%, 33.2% and 38.5%).20 The proportion of nonmarital births, 2.3% in 2018 (3.8% in 1947, 2.5% in 1950, 0.8% in 1980, 2% in 2004),21 is one of the world’s lowest. In this country, cohabitation remains uncommon and is best viewed as a prelude to marriage rather than as an alternative to it; with pregnancies planned accordingly. While the absence of a nation-wide data collection system prevents any possibility of providing a profile of the children being adopted, it may be safely assumed that the majority of Japanese child adoptees are young and have been relinquished by their unmarried mothers.22 It should be noted that one residual discriminatory effect of the law relating to the status of non-marital children has finally been removed. Section 900(4) of the Civil Code was revised after the Supreme Court decision23 that discrimination against an illegitimate child in relation to their succession rights was illegal. Abandoned Children A 2014 survey reported that nearly 400 children had been abandoned in Japan in the previous three years: 121 in 2011, 169 in 2012 and 105 in 2013. Relative to population size, the incidence of abandonment is very low in comparison with countries such as Korea or Romania. Baby Hatches As the stigma attached to being an unmarried mother retains its traditional potency, in the rather ‘closed’ culture of this modern developed society, hospitals are making available ‘baby hatches’ or konotori no yurikago where parents can safely and anonymously leave infants for whom they are unable to continue providing care. In 2018, 7 cases were reported (in Kumamoto city).

18.2.1.3

Abortion

Abortion has been legal in Japan since 1949, under Chapter XXIX of the Penal Code, more than a decade earlier than in other industrialized countries, and is available up to 22 weeks. By the end of the 20th the rate had levelled out at approximately 343,000 20 See,

U.S. Bureau of Labor Statistics at: https://www.census.gov/compendia/statab/2011/tables/ 11s1335.pdf. 21 See, MHLW, Vital Statistics. 22 Note the ruling of the Supreme Court (4th June, 2008) in 2002 Hanrei Jiho; 1267 Hanrei Taimuzu 92. Judicial recognition was then given to the principle that discrimination against the legal interests of a child born out of wedlock was unconstitutional. 23 Supreme Court Order 4 September 2013, Minshu 67-6-1320.

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annually and by 2018 it had halved24 the decrease correlating with an increase in recourse to improved contraceptives; a trend which hardened with the introduction of Ministry approved oral contraceptives in 2011. The majority of abortions are carried out in relation to the ‘legitimate’ pregnancies of married couples who have chosen abortion for financial reasons etc.25 It is estimated that the ratio of minors having abortions compared to the total number of abortions jumped 13-fold during the 1955–2003 period.26 This is significant as, in the main, children available for adoption are due to ‘unwanted pregnancies’ such as babies born to minors with no means of support.

18.2.1.4

Assisted Reproductive Technology

At 1.4 births per woman of childbearing age, well below the replacement rate of 2.1, Japan has one of the world’s lowest birth rates and a looming demographic problem. The combination of a very late marriage rate, a high level of recourse to abortion and a very low fertility rate has resulted in a society where considerable value is placed on available children. While recent advances in assisted reproductive technology (ART) have made it possible to circumvent many causes of male and female infertility there are currently no legal regulations concerning ART in Japan. There is a strong association between failed fertility treatment and adoption. For example, the Katei Yogo Sokushin Kyokai, a home child-care promotion association operating in Osaka and Kobe, reports that 90% of prospective adopters have received fertility treatments for periods lasting 1–15 years.27 Surrogacy Surrogacy is neither illegal in Japan, nor is it regulated. The practice is anathema to society as a whole and does not have the approval of the Society of Obstetrics and Gynaecology with the result that few doctors are prepared to offer surrogacy related services. Increasingly, those who wish to avail of surrogacy are doing so in America, where it may cost anywhere from $20,000 to $120,000. Where surrogacy procedures are successfully completed, the commissioning parent/s may encounter difficulties in having the child registered as theirs, as was the case in 2007 when the Supreme Court upheld the decision of the municipal office to reject the registration of non-birth parents as parents of the children born to a surrogate mother.28

24 In

1955 there were 1,170,143 abortions; 550, 127 in 1985; 343,024 in 1995; 341,588 in 2001; 181,905 in 2014; and 161,741 in 2018. 25 The author acknowledges the advice of Satoshi Minamikata on this matter. 26 In 1955 there were 14,000 abortions performed on minors compared with 40,000 in 2003. 27 See, at: https://ajw.asahi.com/article/globe/feature/adoption_option/AJ20111127190028a. 28 Minshu 61-2-619, (23 March 2007).

18.2 Background

18.2.1.5

767

Increase of Children in Public Care

Cases of child neglect and abuse in Japan are governed by the Welfare of Children Act 1947,29 s 28, together with ss 834 and 834-2. Children enter the care system either on a consensual basis because parents cannot cope and voluntarily relinquish them, or on a coercive basis following a Family Court order obtained on grounds of parental neglect or abuse. An increase in the latter is clearly apparent from the statistics of cases reported to the Child Guidance Centres: in 1990, 1101; 1995, 1961; 2000, 17,725; 2005, 34,472; 2008, 42,662; and in 2010 there were 56,384 referrals; but by 2018 this figure had multiplied to 159,850 (an increase of 26,072 from the previous year).30 As Ayako Harada suggests: “the increase in the number of abuse and neglect cases may reflect a change in social attitudes towards child abuse and neglect” because only very recently have these “become recognised as serious social problems in Japan”.31 Although children are removed from their families by the authorities on grounds of parental failure, and placed in the public child care system, their parents retain inherent rights including the right to withold consent to placement in foster care or for adoption and so very few children subsequently enter the adoption process. This is not due to an absence of legal provisions permitting such a transfer: both the Welfare of Children Act and the Civil Code enable a Family Court to dispense with the need for parental consent in respect of the proposed adoption of a child that has suffered abuse at the hands of that parent. The procedure in relation to a proposed ‘ordinary’ adoption would be for the CGC to make an application for adoption to that court for the forfeiture of parental rights and duties thereby enabling the CGC to make an adoption application of adoption to that court. In relation to a proposed ‘special’ adoption, the Family Court can issue an order to dispense with the consent of birth parent/s when the latter unreasonably rejects or cannot give consent. However, it would seem that judicial removal of parental rights is not a regular occurrence and there is also some resistance to taking the next step of making the children concerned available for adoption.32 By 2018, according to the Ministry of Health, Labour and Welfare, there were approximately 45,000 children in care: a number increasing annually due, perhaps, to factors such as the introduction of the Child Abuse Prevention Law, amendments to the Child Welfare Act and implementation of the ‘Urgent Comprehensive Plan 29 Amended

in 2003, 2004 and 2007. Ministry of Health, Welfare and Labour, “Reference Material: Current State of Alternative Care”, March 2014 (as cited in Human Rights Watch, ‘Without Dreams: Children in Alternative Care in Japan’, Tokyo, 2014, at: https://www.hrw.org/reports/2014/05/01/without-dreams-0 at p. 12. 31 See, Ayako Harada, ‘The Japanese Child Protection System: Developments in the Laws and the Issues left Unsolved’, in Atkin, B., (ed), The International Survey of Family Law, 2010 Edition, Family Law, Jordan Publishing, 2010 at p. 219. Also see, White Paper on Crime, (2019) which reported 1380 arrests for child abuse in 2018 as opposed to 212 in 2003. 32 For example, according to the judicial statistics for 2018, the outcome of 131 applications to the Family Court for the forfeiting and suspending of parental rights and duties was: 28 granted; 19 rejected; and 77 withdrawn by the parties (child’s relatives, authority and other interested persons). 30 See,

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to Strengthen the Prevention of Child Abuse’; most of whom lived in institutions. The following is a snapshot of the dispersal of the Japanese child care population in 2018 (39,407 in 2013): 3857 in infant homes (3069 in 2013); 31,826 in child care institutions (28,831 in 2013); 1367 in short-term therapeutic institutions (1310 in 2013); and 430 in group homes for independent living.33 Foster Care Foster homes are classified as ‘child welfare institutions’ along with institutions for physically and mentally disabled children.34 Licensed foster parents are divided into 4 different categories: 1.

2.

3. 4.

Short-term and long term foster homes: Licensed non-adoptive foster parents’ homes. In some cases, children placed in this setting stay in one home for a long period of time and get adopted by the foster parent(s). 3 out of 4 foster children in out-of-home placement in Japan live in this first category of foster homes. Specialized foster homes: Short and long term foster parents who are specialized in caring for children with trauma due to their abuse history and with emotional and behavioral problems, and adolescents who have presented delinquent behaviors. Pre-adoptive foster homes: These foster parents receive children with the agreement that they will be adopting. Kinship foster parents: Relative caregivers to the 3rd degree (Maternal and paternal grandparents, uncles, aunts and cousins.).

In 2014 it was noted that “only 14.8% of the children who need alternative care in Japan are placed with foster parents”35 which constituted a significant proportionate increase over the past decade: in 2002, 2517 (or 7.4%) of children were in foster care; by 2011 that number had increased to 4966 (or 13.5%)36 ; and by 2018 there had been a further increase to 5382. This bears little resemblence to the use of foster care in other developed nations: in Australia the comparable rate is more than 90%; in the UK and the US more than 70%. Although in 2009 the child care allowance paid to foster parents was raised considerably this did not produce a proportionate shift in the use of resources from institutions to foster care. In March 2011, for example, there were 36,450 children in care and only 4373 had been adopted or placed in foster care during the preceding 12 months. Almost one quarter of foster placements disrupt, resulting in the children being returned to institutional care. Residential Care Japan has had a far lower incidence of children in state care than many other countries, most notably the United States, but in recent years that gap has been closing. Unlike those other countries however, in Japan a higher proportion are in institutional 33 Ibid.,

at p. 2. the Social Welfare Act 1951, s 2(1) and the Child Welfare Act 1947 s 7 (1). 35 Judicial Statistics, op cit, at p. 50. 36 Ibid., at p. 51. 34 See,

18.2 Background

769

care—in 2018, of the 45,000 children in state care, 31,826 were in institutions— designated the primary form of provision for such children. The extensive network of orphanages, some 14 within the Nagoya city limits alone, is quite dated as many facilities were built in the immediate post-war period. However, the children now accommodated are seldom orphans; they are usually there following parental failure or voluntary relinquishment. In 2018 the dispersal of those entering state care was as follows: 3023 children in infant homes (2237 in 2012); 27,026 in child care institutions (5401 in 2012); 1367 in short-term therapeutic institutions (475 in 2012); 588 placed with foster parents from their original family (826 in 2012); and 179 placed in a family home from their original family; 5308 in mother and child support facilities; and 616 in child self-support institutions.37 Most children in the public care system in Japan are accommodated in private children’s homes, run on a for-profit basis like any other commercial business38 ; though usually under strict control and supervision by the government.39 Arguably, the public child care system thus contains a built-in disincentive for proactively managing the transfer of abused and neglected children into the adoption process. Placed with Foster Parents for Adoption Some foster parents are specifically approved as potential adopters and children are placed with them in the expectation that they may eventually be adopted. Approximately 17% of all foster parents have this dual status. In March 2009, the government issued a ‘Notice on Adoption Administration’ which directed Child Guidance Centres to give a higher priority to such placements. However, as those who register as adoptive foster parents lose their entitlement to the foster parent allowance (86,000 yen in 2019) there has not been any increase in the use of this resource: only 250–300 children have been adopted annually by this route from 2008 to 2011.40 In 2012, 179 children were in such placements but by 2018 the number had increased considerably. The reason why this bridge between child care and adoption is so underused, as with other aspects of life in Japan, is somewhat oblique. Partially it’s due to patterns of state funding, which favour large privately owned children’s homes in preference to adoption and foster care and thereby provide a disincentive for owners to facilitate a move to alternative forms of care. Partially, also, it is a consequence of legal difficulties relating to the rights of a parent who is ‘missing’ rather than one 37 MHLW

Report on Public Health Administration and Services 2018. institutions for child care are classified as a type 1 business under s 2(2)(ii) of the Social Welfare Act 1951 and such institutions can operate a ‘profitable business’ as defined by s 4 of the Order for Enforcement of the Social Welfare Act 1951. 39 See, the Social Welfare Act, s 2(2)(b). The services listed below are Type 1 social welfare services:… (b) operation of a home for infants, mother and child living support facility, foster care facility, facility for children with intellectual disabilities, daycare facility for children with intellectual disabilities, facility for blind or deaf children, facility for orthopedically impaired children, facility for children with severe physical and intellectual disabilities, short-term therapeutic facility for emotionally disturbed children, or a self-support facility for children as provided in the Child Welfare Act (Act No. 164 of 1947). 40 Ibid., at p. 74. 38 Private

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who has ‘abandoned’ their child. It is probable, however, that the main reason lies in the particular regard for the family of origin in Japanese culture: birth parents would prefer the anonymity of a children’s home than face the exposure of another family undertaking the care they cannot provide; prospective adopters view with some unease the opportunity to take into their family a child of uncertain origins; state administrators take the view that a neutral positioning of the child leaves open the possibility of reclaim by family of origin and leaves untouched the integrity of family origins; while adoption professionals lack the leverage to challenge the bloodlines taboo. The Child Guidance Centres condone this general approach by not challenging a parental veto through the court procedure provided under ss 33-6 of the Child Welfare Act 1947 (as amended).41 Consequently, the child care system remains more ‘closed’ than in other countries. Kinship Care As can be seen above, a small but not insignificant number of children are placed with members of their extended family who have been approved as foster parents for that purpose. It has been explained that after the 2011 earthquake, when many uncles and aunts undertook the care of orphaned children, “there is an exception for uncles and aunts who under Japanese law are not considered to be obligated to take care of children, and are therefore placed in the category of registered foster parents who are eligible for the foster parent allowance”.42 Wards of the State Children who are abandoned, or are found in circumstances which indicate parental abandonment, automatically become the responsibility of the local Child Guidance Centre. The same occurs where a parent voluntarily places their child in a children’s home, perhaps following divorce or family breakdown, but is thereafter ‘missing’ and ceases all contact. In both sets of cases the parents retain their rights. Only following a conviction for abuse in the Family Court will parents forfeit their rights in relation to the child and custody, together with all parental rights, then become vested in the Director of the CGC who can authorise residential care in a children’s home. Once in institutional care43 there is little proactive professional initiative from the local CGC to introduce the possibility of adoption and virtually none in respect of the child of a ‘missing’ parent or one who has known relatives.

41 A request for adjudication on the forfeiture of parental authority, pursuant to the provision of s 834 of the Civil Code (Act No. 89 of 1896), may be made by the child guidance center’s director. 42 Ibid., at p. 19. 43 See, Committee on the Rights of the Child, op cit, which states: “The Committee is concerned at the number of institutionalized children and the insufficient structure established to provide alternatives to a family environment for children in need of special support, care and protection” at para. 18.

18.2 Background

771

18.2.2 Resulting Trends in Types of Adoption Ascertaining evolving patterns in the Japanese adoption process is problematic: relevant statistical data is not collected in the same manner and by a designated agency as in other countries; there is not always clear differentiation between ‘special’ and ‘ordinary’ adoption; the definition of ‘minor’ is inconsistent as is their distribution between special and ordinary adoptions; the number and duration of adult adoptions is uncertain etc. The only hard data is that issued annually by the Supreme Court of Japan. This is of limited value: judicial statistics deal only with the number of adoptions of minors; there is an absence of statistics relating to the adoption of adults; and, since 1999, detailed information previously available on adoptees’ gender, age, and relations with adoptive parents is no longer collected due to ongoing streamlining reforms. Nonetheless, in 2018, the Judicial Statistics (Supreme Court) recorded: 619 adoptions of minors by the Family Court (not approved 17 and withdrawn 289); and 628 special adoptions (not approved 18 and withdrawn 77).

18.2.2.1

Third Party Adoptions

The social standing of a family, that included an unmarried daughter who relinquished a child for adoption to strangers, had their status compromised nearly as much as the family which adopted that child. Such an adoption was, and to some extent remains, associated with diluted bloodlines, with flawed lineage and with connotations of taboo, secrecy and shame. As has been said: “children in need of adoption have been stigmatised by notions of pure and impure or good and bad blood”.44 There is thus an inherent cultural resistance to third party adoption which explains why the official number of adoptions of unrelated children is only a fraction of that in most western countries. Bryant, writing in 1990, offers a revealing perspective when he notes that45 : Of the estimated 90,000 adoptions effected in Japan each year, two-thirds involve adoptions of adults. Only one-third of legally effected adoptions involve minor adoptees, and fewer than 3% of adoptions legally registered in Japan involve the adoption of minor children by adults who are unrelated to the child.

The adoption of a child by a married couple unrelated to that child is now commonly catered for by the ‘special’ adoption statutory procedure. However, whereas in the

44 Hayes, P., and Habu, T., Adoption in Japan: Comparing Policies for Children in Need, Routledge,

London and New York, 2006, at ‘Preface’ p. xii. 45 See Bryant, T.L., ‘Sons and Lovers: Adoption in Japan’, op cit, at p. 300, citing 1985 data. He records that most adoptions of minors then involved adoptees who were either the children of relatives or a spouse’s children from a former marriage.

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past third party adoption conformed to a very definite model, it now accommodates a number of variations. Domestic There has long been a particularly high incidence of domestic adoption in Japan. In 2011, for example, a total of 81,000 adoptions were recorded.46 This is due largely to the singular Japanese practice of ‘heir adoption’. Adoptions to secure heirs have steadily escalated from 73% of all Japanese adoptions in the mid twentieth century to over 98% of all adoptions in 2004. Although these may include children or adults, the vast majority of the adoptees are childless adult males. Over 90% of the 81,000 people adopted in Japan in 2011 were adult males in their 20s and 30s as opposed to a mere 127 children adopted through registered private agencies: which is remarkably consistent with the data recorded by Bryant more than 20 years earlier. In 2017, it is reported that 98% of all adoptions in Japan were of adult men.47 Child Care Few children in the care population are adopted. Despite the escalating numbers of child abuse cases, which annually boost the population of children parked in insitutional and foster care facilities, the proportion exiting such facilities by means of adoption is consistently very low. This is very largely due to the fact that although the courts have ruled that parents cannot have their children at home—due to parental abuse or neglect—the parents decline to relinquish their rights which the courts have also been reluctant to remove, thereby leaving those with day-to-day care responsibility, usually foster parents, very hesitant to commit to adoption for fear that a parental veto will prevent completion of that procedure. It might be added that another factor is “the long-standing predisposition of Japan’s child guidance centres—which determine the placement of children needing such care—towards institutionalizing children rather than placing them in adoption or foster care”.48 There is no financial support, let alone incentive, for foster parents to transform their status to adopters. As the Ministry has explained: “the foster care allowance is effectively remuneration for raising children. If foster parents adopt their charges and officially become parent and child in the Family Register, childrearing becomes an obligation. It is therefore unnatural to remunerate them in such circumstances”. Nonetheless, statistics from the Ministry of Health, Welfare and Labour reveal that in 2018 there were 719 ‘special’ adoptions of children from the public care system compared with 538 in 2016 and 303 in 2011.49 In the latter year there were more than 3000 infants (i.e. less than 3 years old) in care, so almost 90% remained unadopted. In an initiative designed to improve this situation, the 46 See, the Economist, ‘Keeping it in the family: Family firms adopt an unusual approach to remain competitive’ (December 1, 2012). 47 See, further, at: https://medium.com/@unseenjapan/why-do-adult-adoptions-abound-in-japansbusiness-world-e89ad32e00d7. 48 See, Ministry of Health, Welfare and Labour, “Reference Material: Current State of Alternative Care”, March 2014 (as cited in Human Rights Watch, ‘Without Dreams’ report, op cit, at p. 4). 49 Ibid., at p. 2.

18.2 Background

773

government in 2019 increased the upper age limit at which a child can be adopted from 6 years to 15—though why it was ever considered reasonable that special adoption applications should be restricted to children in the first third of childhood, and why it took so long to remove that restriction, are among the mysteries of the Japanese adoption process. It also, importantly, introduced new measures allowing the severing of a child’s ties to biological parents. Children with Special Needs Children with ‘special needs’ are defined by the International Social Services Japan (ISSJ) adoption agency as “an older child (5+), sibling group, children of other/mixed race, physical/mental disabilities, prenatal use of drugs/alcohol/tobacco, etc.”.50 Such children are not readily catered for by the adoption process because, in general, Japanese prospective adopters tend to be more selective and less flexible in their expectations of the ‘type’ of child they wish to adopt than their counterparts in, for example, the U.K. Moreover, because they are accommodated in specialised facilities within the state care system, children with a physical or intellectual disability are very rarely fostered and therefore, for them, the prospect of ‘foster care with a view to adoption’ virtually never arises. The ISSJ does, as part of its service, accept ‘harder to place’ children (often from CGCs) and has considerable success in arranging for their adoption by foreign couples resident in Japan. However, the definition ‘harder to place’ refers in the main to children who deviate relatively marginally from the norm and would not usually be interpreted as including children with severe health or behavioural problems as in the U.K. Intercountry As with many other nations, the first significant experience of intercountry adoption in this jurisdiction came in the aftermath of World War II. In the chaos of the closing years of that war, Chinese families adopted some 2500 Japanese children. This was followed by a steady flow of mixed race children to the U.S. for adoption, facilitated by the Refugee Relief Act 1953, resulting in hundreds of Japanese children being adopted annually in the U.S. Japan’s role as a ‘sending’ nation has been maintained in recent years, with forty or more children now being adopted annually by U.S. couples.51 Indeed, between 2000 and 2003, a total of 106 children born in Japan were adopted by people overseas; much to the consternation of some in the Japanese media.52 As a ‘receiving’ nation, its courts currently process some 300–500 intercountry adoptions annually (a figure which excludes those children whose adoptions 50 See,

HccH, ‘Country Profile for Intercountry Adoption: Japan’, op cit, at para 2.4.a. protest from the Japan Federation of Bar Associations which, in 2003, asked why “the Japanese government has taken no measures to prevent our children going abroad to live as adopted children”. Cited by Hayes and Habu, op cit at p. 81. 52 According to a Sept. 20, 2004 article in the Washington Times, ‘Japan to Probe Overseas Adoption’, Japan plans to scrutinize its adoption agencies and related legal procedures relating to overseas adoptions after recent reports that some adoptive families have been asked to make huge donations to agencies. See, further, at https://washingtontimes.com/upi-breaking/20040919-111609-9435r. htm. 51 Causing

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are finalized before entering the jurisdiction).53 It is very noticeable that only a small proportion of such adoptions are ‘special’ (i.e. conforming to the usual ICA model where children are unrelated to their adopters).54 Currently, however, Japan is not a signatory nation to the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption 1993, for reasons which may be to do with an inability to provide a body to act as a ‘central authority’ as required by the Convention, while its role in intercountry adoption is further complicated by restrictive immigration laws.55 Transracial Given the importance attached to ‘family’—to bloodlines, lineage and ancestors etc.—it is unsurprising that transracial adoption, being the most overt and socially conspicuous breach of traditional family boundaries, is regarded with considerable caution in Japan. It is no coincidence that mixed race children are over-represented in the care system.

18.2.2.2

First Party Adoptions

This, the traditional adoption model, now accounts for most ‘ordinary’ adoptions and continues to dominate the adoption process in Japan. Step-Parents The majority of domestic adoptions of children are step-adoptions. Step-parent adoption in Japan is not without its issues. The fact that there is no obligation to engage with the non-custodial parent is particularly problematic: not only is there no consent requirement but there is no necessity to notify either before or after the adoption. Kinship Arguably, the Confucian influence on Japanese society has been such that adoption developed from and remains embedded in the overriding principle that the integrity of family boundaries must be preserved and bloodlines protected. Although, as Satoshi Minamikata points out, adoption of non-blood relatives was not uncommon in the past, for instance, there are many instances of such adoptions in the families of feudal lords or the samurai class and well-known academics or medical doctors have often adopted brilliant scholars. The Confucian influence may account for the long 53 Hayes 54 See,

and Habu, op cit, at p. 82. Judicial Statistics 2012 which records: adoption orders, 326; and special adoption orders,

29. 55 See, Committee on the Rights of the Child, op cit, which states: “In light of article 21 of the Convention, the Committee is concerned at the lack of necessary safeguards to ensure the best interests of the child in cases of intercountry adoption” at para 17; and “The Committee recommends that the State party take the necessary steps to ensure that the rights of the child are fully protected in cases of intercountry adoptions and to consider ratifying the Hague Convention of 1993 on Protection of Children and Cooperation in Respect of Intercountry Adoption” at para 38.

18.2 Background

775

established use of adoption within the extended family as a means of strengthening bloodlines and kinship bonds. Most ‘ordinary’ adoptions occur in relation to children and adults who are related to their adopters. This may help explain the consequent failure to develop adoption as an option for children in public care. Adult Adoptees A singular feature of the process in this jurisdiction is the fact that it continues to be mainly used for the adoption of adults: they constitute over 90% of all adoptions. A high proportion of adult adoptees are muko yoshi, which combine a package of legal status, kinship, and inheritance considerations to strengthen the standing of the adopters family. The Civil Code makes specific provision for continuance of the traditional practice of adopting an adult for the purpose of providing a family with an heir or, indeed, with a carer. This occurs by way of an ‘ordinary’ adoption, requires little more than the lack of a son and heir, the consent of all parties, the presence of witnesses and the recording of the adoption by the relevant government official. The use of adult adoption as a means of providing for projected care arrangements is itself guaranteed to become more popular as current demographic trends in the Japanese population, featuring increased longevity and a decreasing birth rate, lead inexorably to a greater proportion of elderly people requiring care from fewer relatives. Traditionally, having thus acquired succession rights—including the family name, lineage, its titles and entire property—the adoptee was required to renounce the rights of succession in relation to his birth family that he would otherwise be entitled to in an ‘ordinary’ adoption. In the feudal past, such an adoption would quite often be followed by the inkyo, or abdication by the adopter in favour of the adoptee as head of the family. However, although the ‘ordinary’ adoption of adults and minors continues, its traditional use for Katoku purposes (succession to family assets), together with inkyo, was abolished by the revision of the Civil Code in 1947 in conjunction with the equality principle as stated in Article 14 of the Constitution. The modern process is presided over by the Family Courts. In ‘special’ adoption, the adoptee is treated as the legitimate child of the adopting parent(s), his/her legal relationship with birth family is completely severed and their inheritance rights are no more or less than any other child in the adopter’s family.

18.3 Overview of Principles, Policy and Law The fundamental law of Japan is embodied in the 1947 Constitution. For present purposes, Article 14 is of particular relevance as it guarantees equality before the law and prohibits discrimination based on “political, economic or social relations” or “race, creed, sex, social status or family origin”.

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18.3.1 Adoption Principles and Policy The respect traditionally accorded to parental rights, in Japanese society generally and in family law in particular, shapes the policy governing the law as it relates to children. Interventionism, whether in the form of national child protection and adoption laws accompanied by the associated regulatory machinery, or in the form of state compliance with international conventions, is resisted. Nevertheless many of the principles prominent in the adoption law of other developed nations clearly also govern adoption practice in Japan and others tend to be quietly accommodated.

18.3.1.1

Principles

An adoption process that is very largely oriented around the adoption of adults, largely avoids the needs of children in the public care system and uses ICA mostly for ‘ordinary’ adoptions, will have little reliance on the principles that are common to other jurisdictions. The Welfare Interests of the Child In Japan it is now a legal requirement that the welfare interests of the child concerned must be promoted by the proposed adoption.56 The Family Courts use the criterion of protecting the welfare of an adopted minor which is not dissimilar in practice from employing the equivalent checklists for section 8 orders in the Children Act 1989 in England and Wales. If necessary, under the Family Affairs Proceedings Act 2011, a Family Court judge can order a court officer to examine the case and to submit a form of welfare report to assist the court assess and promote a child’s welfare interests (see, further, at Sect. 18.4.3.1).57 Nonetheless, the weak recognition and protection of children’s rights has been criticised by the Committee on the Rights of the Child.58 However, ‘welfare’ in this jurisdiction, is also open to a much broader interpretation than its customary association with attachment and nurture. The ‘welfare’ of a male child, for example, may be interpreted as consonant with prospective socio-economic benefits, resulting from his adoption by those in need of an heir to perpetuate their family, family name or business. Moreover, the lack of weight

56 Ministry

of Foreign Affairs 2001: 113, 143. author is indebted to Satoshi Minamikata for this information. 58 See, Committee on the Rights of the Child, Concluding observations of the Committee on the Rights of the Child: Japan, U.N. Doc. CRC/C/JPN/4-5, (2019). 57 The

18.3 Overview of Principles, Policy and Law

777

given to this principle within the Code is such that it can fail to protect a child from discrimination.59 Openness The introduction of principles of ‘openness’ to adoption practice has proved problematic; there is much in the traditional ethos of Japanese social relations that is inimical to transparency and insistence on such an approach may prove counterproductive in an adoption context. As Hayes and Habu explain60 : The open philosophy is somewhat at odds with the traditional Japanese cultural emphasis on reserve, social duty and the masking of individual feelings. There are also potential conflicts of interest between an agency and parents; if an adoption agency is too forthcoming about the backgrounds of the children in its care, then this may make their placement more difficult. This means that a policy of openness is not necessarily an advantage in helping as many needy children as possible.

18.3.1.2

Policy

In the context of adoption, there is little evidence of anything resembling a coherent strategy or programme for related service provision. Adults and children may be adopted, by means of ‘special’ or ‘ordinary’ adoption. There are no prescriptive provisions requiring greater weight to be given to the welfare interests of an abused/neglected child than to the parental right to withhold consent to the adoption of that child. Birth parents wishing to relinquish their children for adoption may choose from a number of different routes. The interface between child care law and adoption law remains in practice almost impermeable. Few children with ‘special needs’ are admitted to the adoption process.

18.3.1.3

Adoption Alternatives

In Japan there is no equivalent to the range of public and private orders that can be found in other jurisdictions and provide opportunities for the judiciary to reject adoption in favour of a more appropriate legal framework for furthering the welfare interests of children. Guardianship is the established and commonly employed default when parents are unwilling, unable or judicially prevented from undertaking their responsibilities, (see Civil Code, ss 838 and 840 above). 59 See,

Committee on the Rights of the Child, Concluding observations of the Committee on the Rights of the Child: Japan, U.N. Doc. CRC/C/15/Add.90 (1998) which states that: “The Committee is concerned that legislation does not protect children from discrimination on all grounds defined by the Convention …” (at para 14). However, it is to be noted that the government has since addressed the specific matters of concern to the Committee. Following a partial revision of the Civil Code in 2018, the age of majority is now 18 years of age (s 4), and both males and females are now eligible to marry at the age of 18 (s 731). Moreover, s 900(4) of the Civil Code was also revised to eliminate discrimination against children, born out of wedlock, with regard to inheritance rights. 60 See, Hayes and Habu, op cit, at p. 45.

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18.3.2 Contemporary Adoption and Related Legislation In Japan, a strong legacy of family autonomy accompanied by an entrenched respect for parental rights tends to prevail over modern adoption law and policy to ensure that adoption practice conforms to, or does not stray too far from, traditional values.

18.3.2.1

The Family Affairs Proceedings Act 2011 (Kaji Jiken Tetsuzuki Ho)

This Act replaced the Domestic Proceedings Act 1947 (Kaji Shimpan Ho) and now provides the procedural framework that governs the jurisdiction of the Family Court on many family matters, including adoption. Like its predecessor, it provides for Family Court authorisation of adoption agreements in respect of minors (under 15 years of age) and for that court’s determination of ‘special’ adoptions. Otherwise, there is no body of adoption specific legislation, associated procedures and case law precedents to guide an understanding either of current Japanese adoption law or of its historical development.

18.3.2.2

The Adoption Agency (Regulation) Act 2016

Introduced primarily to curb the free market approach of private adoption agencies, the 2016 Act introduced requirements for the registration and regulation of all adoption agencies by government authorities.

18.3.2.3

The Prevention of Cruelty to Children Act 2000

This Act, replacing the Prevention of Cruelty to Children Act 1933, and amended in 2004 and 2007, sets out the responsibilities of the government departments and the prefectures in respect of preventing child abuse and neglect.

18.3.2.4

The Adoption Act 1988

This statute introduced ‘special’ adoption to make Japanese adoptions more compatible with international norms and to give more protection to adopted children under six years of age. A special adoption severs the child’s ties, rights, and privileges with regard to the birth parent/s and any prior adoptive parent/s. The child must be under the age of six at the time the adoption petition is filed or under the age of eight and have been in the continuous care and custody of the prospective adoptive parents since before their sixth birthday. All persons with legal custody of the child, including the birth and adoptive parents, must consent to the adoption, but consent

18.3 Overview of Principles, Policy and Law

779

by persons without legal custody is not necessary. Apart from this legislation, there has been no significant change in adoption law since the end of World War II. The 1988 legislation strengthened the legal position of adoptive parents and ss 817-2 to 817-11 of the Civil Code were also implemented in that year. However, as most annual adoptions continue to be of the traditional ‘ordinary’ form, which does not require a complete severance of all such legal links, the Japanese adoption process as a whole is more compromised than its common law counterpart.

18.3.2.5

Child Welfare Law 1947

State control of care provision for orphans and abandoned children was initiated by this legislation in 1886 (revised in 1947 and again in 2016) while all those in institutions automatically became subject to its provisions. The governing principle is stated as: “All the people shall endeavour to ensure the sound birth and growth of children, both in mind and body. Thus, parents and legal guardians must regard the best interests of the child as their basic concern”. Where a child was voluntarily placed in a CGC or children’s home by the parent/s who thereafter ceased contact with their child, then the parent/s were designated as ‘missing’. The first step being for the child to be brought to the attention of the Child Guidance Centre which then sought authority under Articles 27–28 from the local Family Court to remove him or her to either: a child care home (institution); or foster care (foster parents registered to local authority); or for adoption (usually spending some time in the child care home or foster home). The most relevant provisions are as follows. Section 27(4) When the referenced child has a person who has parental authority (excluding the head of a child welfare institution who exercises the parental authority pursuant to the provision of section 47 paragraph (1); the same shall apply hereinafter) or a guardian of a minor, the measure set forth in paragraph (1) item (iii) or paragraph (2) may not be taken against the intent of said person who has parental authority or said guardian of a minor, except in the case referred to in the preceding paragraph. There is no need to seek Family Court approval in the case of a voluntary placement of a child by his/her parent in an institution. Section 28 Where a guardian abuses his/her child or extremely neglects the duty of custody of his/her child or in any other case where the guardian’s exercise of the custody extremely harms the welfare of said child, when taking a measure set forth in section 27 paragraph (1) item (iii) is contrary to the intention of a person who has parental authority or a guardian of a minor for the child, the prefectural government may take a measure set forth in any of the following items:

780

1.

2.

18 Japan

Take a measure set forth in section 27 paragraph (1) item (iii) with approval from the family court, when the guardian is a person who has parental authority or a guardian of a minor; and Deliver the child to a person who has parental authority or a guardian of a minor, when the guardian is neither a person who has parental authority nor a guardian of a minor; provided, however, that a measure set forth in section 27 paragraph (1) item (iii) shall be taken with approval from the family court, when such delivery is found inappropriate for welfare of the child.

Section 33-7(1) and (2) When it is necessary for the welfare of a child, etc. having neither a person who has parental authority nor a guardian of a minor, the child guidance center’s director shall request the Family Court to appoint a guardian of a minor. A child guidance center’s director shall exercise parental authority over a child admitted there and having neither a person who has parental authority nor a guardian of a minor until the child comes to have either a person who has parental authority or a guardian of a minor; provided, however, that permission from the prefectural governor shall be obtained pursuant to the provisions of Ordinance of the Ministry of Health, Labour and Welfare when accepting adoption pursuant to the provision of Article 797 of the Civil Code. This legislation provided the legal framework for establishing a national foster care system with paid foster parents and for the current network of child guidance centres. It also prohibited adoption agencies from profit making.

18.3.2.6

Civil Code 1896

In 1947 the Civil Code was revised to require all adoptions by non-relatives of children under the age of 20 years to be approved by the Family Court in accordance with the welfare principle.61 Where the child was less than 15 years of age the consent of birth parent/s or legal representative was necessary.62 The Civil Code defined two types of adoption in Japan: futsu yoshi, or ‘ordinary’ adoption and tokubetsu yoshi, or ‘special’ adoption. The distinction between ‘ordinary’ and ‘special’ corresponds to the difference between ‘simple’ and ‘full’. Ordinary Adoption ‘Ordinary’ adoption has perhaps always existed in Japan and continues today. It is based on a simple agreement between the parties, is used in respect of adults and minors, and in respect of adult adoptees it does nor require judicial endorsement. It creates a legal parental relationship between the adopters and the adoptee, whether adult or child, but not wholly to the exclusion of legal links between the latter and 61 Author acknowledges advice from Satoshi Minamikata on the Civil Code and guardianship (note

to author, 23.06.2020). 62 The Civil Code, Article 798.

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his or her birth parent/s. An ordinary adoption has the effect of conferring the status of ‘legitimacy’ on the child. If the child to be adopted is a minor then, except in certain circumstances, leave from the Family Court is in principle required. The Family Court determines each case on the basis of whether the adoption is consistent with the child’s welfare interests. After the court issues an order, one of the parties registers the adoption in the family koseki at their local office. It may be readily dissolved with the consent of all parties; in the absence of consent, then either party is free to make application to the Family Court for a decree dissolving the adoption; the grounds for dissolution, stipulated in s 814 of the Civil Code, must be satisfied. Leave of the Family Court is not required in cases where the adoption is in respect of a minor who is a lineal descendant of the adopter/s, or a child of the adopter’s spouse. Even in these cases, however, officers in charge of the koseki or family register may only formally record the adoption after examining the arrangements to ensure that all the essential conditions have been met. For example, if the child to be adopted is less than 15 years of age, they ascertain whether the adoption is accepted by the legal representative, whether it violates other laws and regulations, whether it amounts to adoption of a minor who is a lineal descendant of the adoptive parent or his/her spouse, etc. Special Adoption The Civil Code provisions relating to ‘Special’ adoption were revised in 2018 and 2019. ‘Special’ adoption was introduced in 1988 and intended to be the modern equivalent of other western models, is a formal statutory process in which the legal rights of the parties involved are recognised and given some protection. In 2004, such adoptions, as Akiba explained, were relatively rare and “have been occuring at the rather low level of around 27 cases a year, with a peak of 35 cases in 1991”.63 By 2018 this had radically changed as in that year there were 719 cases of which 624 were approved, 18 dismissed and 77 withdrawn. It is subject to serious constraints: it has been restricted to children aged 6 years or less but the Civil Code, s 817-5 (1), as revised in 2019, has extended that age limit to 15 years; it requires a probationary placement period of at least six months; and the Family Court must then determine whether or not the proposed adoption is compatible with the child’s welfare interests.64 In a special adoption, the legal relationship between the adopted child and his/her birth parents is terminated, a new legal relationship between adoptive parents and child is created with the latter then acquiring the status of a ‘legitimate’ child. It tends to be regarded as the default option reserved for complex situations. In addition, consent of the child’s parents is also required except where this is unobtainable or where the child has suffered abuse, serious neglect or been abandoned by the

63 See,

Akiba, J., ‘Japan: International Family Law Practice in Japan’, in Bainham, A. (ed), The International Survey of Family Law, Bristol, Jordan Publishing, 2004, pp. 271–291, at p. 276. 64 Civil Code, 817-2–817-9.

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18 Japan

parent/s. Unlike an ‘ordinary’ adoption a special adoption is indissoluble65 except in certain circumstances when the Family Court may permit dissolution.66 Section 834 Where a parent abandons, abuses or severely neglects their child the Family Court may rule that all parental authority is removed. Under s 834-2(1), if a child’s interests are harmed due to an inappropriate exercise of parental authority then the Family Court may suspend a parent’s rights in respect of that child. In cases of removal (or suspension) of parental rights, three measures are available: a guardian may be appointed; or a director of an institution shall exercise parental rights and duties; or in the case of foster care or temporary care in a child care institution, a director of CGC shall exercise parental rights and duties. Section 838 This provides that guardianship shall commence in the following cases: (i) if there is no person with parental authority over a minor or if a person with parental authority is unable to exercise the right of administration of property; or (ii) if there has been an order for commencement of guardianship. Section 840 This provides: (i) If there is no person to become a guardian of a minor pursuant to the provisions of the preceding section, the Family Court may appoint a guardian of a minor at the request of a minor ward or his/her relative, or other interested person (see Child Welfare Act). This shall also apply in a case where any vacancy in the position of a guardian of a minor occurs; (ii) Even if there is a guardian of a minor, the Family Court may appoint a further guardian, when it finds this necessary, at the request of the persons prescribed in the preceding paragraph, or a guardian of a minor, or ex officio; (iii) In the appointment of a guardian of a minor, the Family Court shall consider the age, the physical and mental condition, and the living and property circumstances of the minor ward, the occupation and personal history of the person to become the guardian, the existence of any vested interest between them (if the person to become the guardian of a minor is a juridical person, its type and content of business and the existence of any vested interest between the minor ward and the juridical person or its representative), the opinion of the minor ward, and all other circumstances.

18.3.3 International Law Japan became a party to the Hague Convention on the Civil Aspects of International Child Abduction in 2014 and to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children in 2017. It has neither signed nor 65 The 66 The

Civil Code, Article 834. Civil Code, Article 817, para 10.

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ratified the Hague Convention Protection of Children and Co-operation in Respect of Intercountry Adoption 1993, but it ratified the Convention on the Rights of the Child in April 1994, submitted its initial report to the Committee in May 1996, its third in April 2008 and its combined 4th and fifth in 2019.67 However, Japan has yet to make the adjustments necessary to ensure Convention compliance in respect of some of its laws relating to children (as noted above).

18.4 Regulating the Adoption Process In this jurisdiction, it is perhaps a misnomer to refer to ‘the adoption process’ when in practice neither the subjects, the official bodies, the role of professionals nor the outcomes are standardized components of one unified procedure; and there is a conspicuous lack of data regarding annual adoptions. The gradual legislative creation of such a process for ‘special’ adoptions involving the state, the Family Court, adoption agencies and professional staff did not displace but simply ran in parallel to traditional practices. The result is that, in reality, the contemporary domestic adoption process consists of two parallel routes, including a number of different types of agencies (government, independent and hybrid) operating alongside private initiatives, to bring proceedings before the Family Court which may conclude with either an ‘ordinary’ adoption, a ‘special’ adoption or a dismissal of the application. The general lack of a coherent professional regulatory framework has attracted criticism from the Committee on the Rights of the Child.68 The intercountry adoption process is also far from straightforward. As Japan is not signatory to the Hague Convention it does not have a Central Authority. Intercountry adoptions are facilitated by private adoption agencies which, until recently, have not always been registered let alone regulated.

18.4.1 Length and Breadth of Process While in many respects the Japanese adoption process does not conform to the common law model, the process in relation to ‘special’ adoptions has become more congruent with it following the introduction of the 2016 Act. However, it remains very largely the case that “the Japanese state provides a comprehensive and free adoption service, however, it has not, thus far, created a central professional body to 67 See,

further, at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID= 24083&LangID=E. 68 See, Concluding Observations of the Committee on the Rights of the Child, Japan, U.N. Doc. CRC/C/15/Add.231 (2004): “The Committee is concerned that there is limited monitoring or control of domestic and intercountry adoptions, and that there is very limited data available on domestic and intercountry adoptions” (at para. 39).

784

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govern practice, but has taken a relatively laissez faire approach to the regulation of adoption”.69

18.4.2 Role of Adoption Agencies and Other Administrative Agencies Adoption services are among the range of family matters that fall to be administered by the Family Bureau of the Ministry of Health, Labour, and Welfare which has been conducting a review into the use of ‘special’ adoptions. The review was prompted by concern that such adoptions have been consistently low in relation to the numbers of children consigned to longterm care. In 2016, for example, although special adoptions had increased to 538, there remained some 26,000 children in the public care system with approximately 3000 being admitted every year. Relative to other developed western countries the use of adoption in relation to children in public care was assessed as being disproportionately low. In 2017 the Ministry set a target for doubling the number of special adoptions to over 1000 within five years and released a report on promoting the use of special adoption, including specific steps for amending related provisions in the Civil Code, such as raising the age limit above six and limiting the right of birth parents to withdraw consent. Unlike the strictly statutory adoption process of the U.K. and other developed common law nations, typified by a coherent and carefully integrated sequence of stages with legally designated agencies and professions playing powerful statutorily defined roles, in Japan the adoption process remains remarkably loosely structured and lightly regulated. Professional input is minimal and often discretionary in marked contrast to that of other developed nations. As Hayes and Habu observe, “the absence of an adoption orthodoxy in Japan is connected with the near lack of an adoption profession.”70 This is evident in the relatively low levels of professional involvement, staff expertise and qualifications and the number and profile of the agencies engaged in the process.71 However, the introduction of the the Adoption Agency (Regulation) Act 2016, indicates a new approach to these matters. The Child Guidance Centres The CGC network (broadly equivalent to U.K. local authority social services departments) of 219 centres (in 2020) are crucially placed in relation to the ‘special’ adoption process. They arrange placements and home study reports and issue the all important certificate identifying the child placed as a ‘child who requires protection’

69 Hayes, P., and Habu, T., Adoption in Japan: Comparing Policies for Children in Need, Routledge, London and New York, 2006, at ‘Preface’ p. xii. 70 Op cit, at p. 9. However, Satoshi Minamikata suggests that this may be a misperception due to a ‘western’ view of an appropriate level of professional intervention. 71 Note the existence of the Society for Study of Adoption and Foster Placements for Children.

18.4 Regulating the Adoption Process

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which will be required by the Family Court in respect of all ‘special’ adoptions. However, the following comments of Ayako Harada must be borne in mind72 : Generally speaking, Child Guidance Centres do not attempt to find an adoptive family for children in social care, even when family reunification is deemed impossible. Neither the Child Welfare Act nor the Child Abuse Prevention Act requires Child Guidance Centres to initiate adoption services for the child who cannot be reunited with his or her parents. It seems that Child Guidance Centres provide adoption services only when the parents express a wish to place their child for adoption.

Moreover, CGC staff, being few in number and low in professional qualifications—relative to their western counterparts—are unable to contribute much of the specialist expertise necessary to facilitate the transfer of children in the child care system to the adoption process, though it has the authority to do so.

18.4.2.1

Adoption Agencies

The role of a professional adoption agency is the cornerstone of any modern adoption process. The fact that the government has never established an adoption specific agency, but chose instead to leave this to private agencies, has been a distinctive feature of the Japanese adoption process: although the ISSJ, which facilitates domestic adoptions and specialises in intercountry adoption, is a private agency it is registered and supported by the Ministry of Health. However, since the introduction of the Adoption Agency (Regulation) Act 2016, all private adoption agencies must satisfy the definitional statutory requirements, be registered and accept local authority regulatory control (s 6 etc.). A total of 18 private adoption agencies have now been approved and registered. All such agencies are prohibited, under provisions in the Child Welfare Act, from profit-making but this does not preclude payments for ‘expenses’ (which is open to wide interpretation as the term covers ten categories, including travel, phone and counselling services) and there are no restrictions on financial gains received from ‘donations’.73 In the past, adoption agencies have been able to evade registration by restricting their activities to placements ostensibly for reasons other than adoption but which over time are converted to become adoption placements. One such agency, a national association of doctors, has placed many babies direct from maternity hospital to applicants approved following a single interview on the basis of: secure income, good health and education; approval of relatives; general suitability; and on being aged more than 40 (in curious contrast to national norms elsewhere) but less than 72 See,

Ayako Harada, ‘The Japanese Child Protection System: Developments in the Laws and the Issues left Unsolved’, in Atkin, B., (ed), The International Survey of Family Law, 2010 Edition, Family Law, Jordan Publishing, 2010 at p. 231. 73 In 2017, the operator of a for-profit adoption agency in Chiba Prefecture was arrested and later found guilty of collecting 2.25 million yen from a prospective adoptive couple and handing over a baby whose mother had not given her final consent. The court ordered the agency to suspend its operations throughout Japan. See, further, at: https://www.nippon.com/en/currents/d00393/? pnum=2.

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50. The Okayama-ken Baby Kyusai Kyokai, an association that collaborates with obstetricians and gynecologists in Okayama Prefecture to promote infant adoptions, has dealt with approximately 10 children annually who were eligible for adoption because their birth parents could not raise them. In also had contact with some 140 adults who wished to adopt.74 The role played by unregistered agencies has long been a source of concern, particularly as regards those engaged in placing Japanese children for adoption in other countries. The new regulatory regime, inaugerated in 2018, will impose fines on agencies mediating adoptions without a permit and provides for government subsidies for registered agencies. It remains to be seen whether this new regime will establish effective control over the sector.

18.4.3 Role of the Determining Body The Family Court is the sole determining body with authority to adjudicate on ‘special’ adoption applications, but these constitute a small minority of annual adoptions, and it must approve ‘ordinary’ adoptions where the child is not a lineal descendant of the prospective adopters. As regards the former, the prospective adoptive parents are required to lodge their petition in the particular Family Court with jurisdiction over the child’s place of residence. The hearing which, in the context of ‘special’ adoptions, takes place at the end of a trial six-month period, is open to the criticism that it fails to give adequate cognizance to the Convention on the Rights of the Child.75 Adult adoptions do not come before a court.

18.4.3.1

Family Court Probation Officer

The Court Act 1947, ss 61-2, make provision for a Family Court probation officer to be attached to every Family Court and High Court. This officer conducts such research into family circumstances and makes such assessments and recommendations as may be necessary to assist the court in the adjudication and conciliation of contested family issues. Under the Family Affairs Proceedings Act 2011, s 58(1), a Family Court may direct its probation officer to examine facts and report back in writing or orally, this may include their own opinions.

74 See,

Tünde Novák, The Globe (November 27, 2011), at: https://ajw.asahi.com/article/globe/fea ture/adoption_option/AJ20111127190028a. 75 See, Committee on the Rights of the Child, op cit, which states that: “The Committee notes with concern that although the Convention on the Rights of the Child has precedence over domestic legislation and can be invoked before domestic courts, in practice courts in their rulings usually do not directly apply international human rights treaties in general and the Convention on the Rights of the Child in particular” at para. 7.

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787

18.4.4 The Registrar The family registration system, requiring all families to be officially registered, was first introduced by the Meiji government and became part of statutory law with the Family Registration Act 1871. The City Office cannot legally register the adoption decree until the Family Court has heard and determined the application, has waited two weeks to see if the decision is challenged,76 and has then given its approval to the adoption. In cases where the ‘ordinary’ adoption involves a minor who is a descendant of one of the adoptive parents, the City Office may register a regular adoption without any necessity for prior approval by the Family Court.

18.5 Threshold For Entering The Adoption Process: Eligibility and Suitability Criteria The criteria for entering the adoption process in Japan are complicated. This is to be expected in a jurisdiction where: the purpose of adoption can be for reasons other than to secure the welfare of a child; the law recognizes two different types of adoption; provision is made for the adoption of both adults and children; and where parents are permitted considerable discretion to make private adoption arrangements. There is no statutory provision for an ‘adoption service’, in the sense of a comprehensive and integrated programme of services provided by professionals to all parties involved, as is the case in the U.K.

18.5.1 The Adoptee In Japan the person to be adopted need not be a child, though must be younger than their adopter/s. Adult Adoptee Most usually, adults are adopted to provide descendants for a childless family or for business purposes. In such circumstances the traditional requirement for ‘ordinary’ adoptions that the adopters be older than the adoptee, but that the age difference need only be one day,77 continues to apply.

76 In

accordance with the Family Affairs Proceedings Act, s 86 (1).

77 Civil Code, Articles 792 and 793. Section 793 states that a person shall not adopt an older person

than him/her and so he/she could, theoretically, adopt a person whose birth date is the same (not older than an adopter).

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Child Adoptee In Japan, unlike other modern developed nations, a comparatively high proportion of the children adopted are babies. A child eligible for ‘special’ adoption is a ‘child who requires protection’. This is further defined under the Civil Code,78 but in general the child involved is most often either: a non-marital child; an abandoned infant; a child whose parent(s) has/have died or disappeared; a child whose parents are incapable of providing support; or an abused child. The CGC is the only body authorised to confirm the status of such a child and will do so by issuing a declaration to that effect where the child is in the public child care system, following recourse to the Family Court, but not where he or she is the subject of a private placement. In relation to the age of an adoptee, the Civil Code, s 817-5 (1), as revised in 2019, now requires that he or she: be less than 15 years of age at the time of application; or be over 15 years of age if the applicants have already assumed care of the minor and have a legitimate reason for not making an earlier application. Until that revision, the subject of a special adoption was required by the Civil Code, s 817-5, to be less than 6 years of age—except in particular circumstances—at the time of application. There was no obvious rationale for this anomalous criterion which clearly must have debarred many children from entering the adoption process. Where the procedure is for an ‘ordinary’ adoption then the child concerned must be less than 20 years of age, if less than 15 then the consent of a legal representative (usually a parent with full parental rights) is required.79 The parties must obtain the prior approval of the Family Court.

18.5.1.1

The Welfare Threshold

The principle that adoption must be compatible with the welfare interests of the adoptee is recognised in Japanes law; though the bar to entry, imposed on those aged 6 or older, was itself in breach of the welfare threshold. In practice, however, while neither the CGC nor the Family Court will countenance an adoption that is clearly incompatible with welfare, the principle has at best a marginal relevance to the adoption process (see, further, below). Adult adoptions procede on a private contractual basis in which ‘welfare’, as normally understood, is not a factor.

18.5.2 The Birth Parent/s In Japan, the birth parent/s may play a more prominent and discretionary role in the adoption process than would be available to their counterparts in the U.K.

78 Civil 79 Civil

Code, Article 817-7. Code, Article 797.

18.5 Threshold For Entering The Adoption Process: Eligibility …

18.5.2.1

789

Unmarried Mother

By far the majority of Japanese special adoptions result from the consensual relinquishment of babies by their young and unmarried mothers shortly after birth of the child. The social stigma associated with such mothers and the taint of illegitimacy that attaches to their children is very similar to that which prevailed in the U.K. in the 1960s. The proportion of children born outside marriage is very low and the social pressure for their consensual adoption is correspondingly high.80 Where the relinquishing mother is under 20 years of age she is in law a minor— which extends application of the welfare principle further than would be the case in other western countries—and the consent then required is that of her parent or guardian, which seems extraordinary.81 Where one parent holds the parental rights and duties after divorce while the other parent holds a legal status of ‘custodian’ (by s 766 of the Civil Code) then s 797(2) requires the parent with parental rights and duties to give their consent to adoption and s/he must obtain a consent from that ‘custodian’. Where an unmarried mother is 20 years of age or older then custody of her child is held to be vested exclusively in her (shinkensha) and her consent must be obtained unless the necessity for it can be judicially dispensed with.

18.5.2.2

Unmarried Father

The consent of an unmarried father must be obtained only if he has been vested with parental rights and duties by a court. The Civil Code provides: a father shall only exercise parental authority with regard to a child of his, to whom he is affiliated, if both parents agree that he shall have parental authority (s 819(4)); and when the parents do not, or cannot, make the agreements referred to in paragraph (1), paragraph (3), and the preceding paragraph, the family court may, on the application of the father or the mother, make a ruling in lieu of agreement (s 819(5)). In no other circumstances is the consent of an unmarried father required.82

80 Interestingly, in Japan, of live births in 2005, the proportion born to unmarried mothers was approx

2%, compared with approx 40–43% in the U.K. 81 Civil Code, Article 833. 82 The author acknowledges advice from Satoshi Minamikata on this matter.

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18.5.3 The Adopters: Eligibility and Suitability Criteria The legal requirements governing applications from prospective adopters vary according to whether the procedure is for a ‘special’ or ‘ordinary’ adoption but in either case are less stringent than would be the case in common law countries. Eligibility Criteria The 2019 amendments to the Civil Code did not alter the eligibility criteria for adopters. In ‘special’ adoptions the Civil Code requires that adopters: must be a married couple; both must jointly adopt unless one is a birth parent and the other a stepparent83 ; one must be aged 25 years or more and the other be at least 20 years old84 ; and they must have provided direct care for the adoptee for at least 6 months immediately prior to making their application to adopt.85 In ‘ordinary’ adoption, the status requirements are more relaxed86 : adopters are usually married but may, occasionally, be a single applicant; if a relation (e.g. grandparent or step-parent) then recourse to the courts is unnecessary. In neither is there a requirement for a minimum age difference between adopter and adoptee. In regard to intercountry adoption, the prospective adopter/s must meet the same requirements as for ordinary or special adoptions in addition to the legal requirements of their home country. Suitability Criteria Japanese adoption law makes no provision for suitability criteria: the statutory emphasis given in common law nations to matters of health and income etc. are not addressed. However the CGC, through which all ‘special’ adoptions are arranged, does undertake an approval assessment of prospective adopters, which deals specifically with these matters and the suitability of their home, though the approval and matching process otherwise differs in some important respects from that of U.K. adoption agencies. Applicants for special adoption are assessed in the first instance as foster carers, a CGC process which usually takes about 3 months. There is a different procedure for private agency adoption, focusing on child care training, as outlined in the Adoption Agency (Regulation) Act 2016, s 26(4). A home study report consisting largely of factual information, obtained objectively with little intrusive exploratory questioning (rarely, for example, checking on the possibility of criminal convictions), compiled in a standardized format, is then completed and submitted to the Child Welfare Council. This body, which is not the equivalent to the U.K. Adoption Panel and does not conduct a professional scrutiny, tends to give the report a routine endorsement. Matching process is again part of the CGC process (where an adoption agency 83 Civil

Code, Article 817-3(2). Code, Article 817-4. 85 Civil Code, Article 817-8. 86 Civil Code, Article 795. 84 Civil

18.5 Threshold For Entering The Adoption Process: Eligibility …

791

conducted the assessment and then proposes a match, that proposed match must then be approved by the CGC). However, there is nothing to prevent the birth parent/s from directly and unilaterally making their own matching arrangements. In the case of foreign applicants pursuing an intercountry adoption of a Japanese child, the matching is finalised by the adoption agency which negotiates directly with the foreign agency representing the adopters. In such circumstance, they are eligible to apply for an adoption order to a Family Court where the adoption law of their home country is applied in conjunction with the relevant Japanese law on adoption. The Japanese adoption agency maintains a 6 months post-adoption monitoring role.

18.5.3.1

Single and Same Sex Adopters

A single person of either gender is viewed by adoption agencies such as the ISSJ as an acceptable applicant for a special adoption but must obtain the consent of the Family Court to proceed: this is often the case in step-parent adoptions and may also occur in situations where his/her spouse is incapable of indicating her/his intention.87 Same sex marriage is currently not legal and such couples are not viewed as suitable applicants for ‘special’ adoptions: for example, they are not accepted by the ISSJ for either domestic or intercountry adoptions. However, as Satoshi Minamikata points out, in 2016 a same sex couple were accepted as foster parents ‘with a view to adoption’.88 The ‘ordinary’ adoption of one person by another is an established means of formalising a same sex relationship and continues to be so in the absence of same sex marriage. While there is no specific legal obstacle to prevent cohabiting couples from adopting, in practice whether or not the applicants are of the same gender, the ISSJ does not accept unmarried couples and a Family Court does not make orders in favour of such applicants.

18.6 Pre-placement Counselling There is no legislative requirement that Japanese adoption agencies provide preplacement counselling for those birth parent/s who may be considering voluntarily relinquishing their child for adoption, though many do and the expectation that they should is stated in the Ministry’s rules and regulations. For example, locating the birth parent/s, providing pre-placement counselling and ensuring that adoption is the only option for them, is standard practice for the ISSJ.89 Prospective adopters receive counselling during the introductory programme that follows their initial application. 87 The

Civil Code, Article 798. to author (23.06.2020). 89 See, further, HccH, ‘Country Profile for Intercountry Adoption: Japan’, the Permanent Bureau, 2013, para 2.1.C. at: https://www.hcch.net/upload/adop2013cp_jp.pdf. 88 Note

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18.7 Placement Rights and Responsibilities The legal requirements relating to the placing of a child for adoption depend on whether the prospective adopters intend to proceed in accordance with the ‘ordinary’ or the ‘special’ adoption process.

18.7.1 Authority to Place In the case of an ‘ordinary’ adoption, the placement may involve a consensually relinquished baby and be made informally in the traditional manner, either directly by the birth parent/s or by an authorised relative. Any alternative placement—made by an intermediary such as a doctor, lawyer, nurse etc., or an independent private adoption agency, acting on behalf of the birth parent/s—is now subject to the requirements of the 2016 Act. In the case of a ‘special’ adoption, s 817-8(1) of the Civil Code requires a preliminary care period of not less than six months to be provided by the prospective adoptive parent(s) in respect of the child concerned. In circumstances where the arrangement to place a child is made by a CGC, it is subject to statutory provisions and in practice cannot commence until the prospective adopters are first registered as foster carers and, since the introduction of the Adoption Agency (Regulation) Act 2016, they are required by s 29 to provide a mandatory pre-adoption 6 month trial care period for all prospective adoption applicants; there is a duty to supervise during that period, to provide assistance, and to assess the quality of care; and s 26 imposes restriction on the agency when, for instance, the applicants are not suitable to adopt or they do not undertake the course on bringing up a child (s 26(4)). Where the placement has been made by a private agency it must ensure a similar training programme has been provided for prospective adopters (2016 Act, s 26(4)). The parent/s can exercise considerable influence over placement selection and all relevant information relating to the minor must be disclosed to the adopting parents (2016 Act, s 34(1)). A private adoption agency is required to give advice, support and relevant information to the parties including birth parents if necessary (2016 Act, s 33).

18.7.1.1

Placement by Birth Parent

Direct placement of a child by the birth parent/s or by an intermediary acting on behalf of the birth parent/s, with relatives or non-relatives, for adoption purposes, has long been a singular characteristic of the adoption process in Japan. It is legally permitted even in relation to ‘special’ adoptions. Typically, an ‘ordinary’ adoption takes the form of a placement within the extended family, an arrangement made with the approval of the male head of the family, for reasons associated with perpetuating

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793

the bloodline in matters of lineage, inheritance, business or simply as a means of keeping alive the family name. The voluntary relinquishment of a child by the birth parent/s has been and remains the normal circumstance catered for by Japanese adoption law. As Hayes and Habu comment90 : A situation where most children available for adoption are babies born to single mothers is reminiscent of the situation in the U.K. and in other western states about 40 years ago. It is also in contrast to the current position in the U.K., as there has been a transition away from single mothers giving up their babies and an increased willingness to take children into care and free them for adoption if they have been abused or neglected. The divergence between Japan and the U.K. reflects the continuing strength of a conservative paternalistic ethos in Japan …

18.7.1.2

Consent

Where the child is placed with a family member (as determined by the rules of consanguinity), then with the consent of all concerned, an ‘ordinary’ adoption is effected without any need to involve the Family Court. Where the placement is with a married couple unrelated to the child then, even though the consent of all parties is available, recourse to the Family Court is necessary to ensure the complete and irrevocable vesting of parental rights and duties in the adopters.

18.7.1.3

Placement by Accredited Body

In ‘special’ adoptions there are two alternative processes. By the CGC Following an initial introductory meeting of child and prospective adopters (registered as foster parents) arranged by the CGC, and successful completion of a one to three month period of mutual familiarisation, the CGC makes a positive decision regarding the feasibility of adoption. An application is lodged with the Family Court and a full six month probation period ensues after which, following a positive investigative report from a family court officer, the court then makes an adoption order. The placement is accompanied by financial support in accordance with national payment rates for foster carers. As Hayes and Habu explain, this selection and matching process tends to invert the approach developed in common law countries as “the Child Guidance Centres typically select a child for the parents first and then invite the potential parents to choose whether or not they would like to adopt the child”91 90 See, Hayes, P., and Habu, T., Adoption in Japan: Comparing Policies for Children in Need, op cit.

Although, it remains the case that most adoptions of minors in Japan are family adoptions, usually by step-parents. 91 See, Hayes, P., and Habu, T., Adoption in Japan: Comparing Policies for Children in Need, Routledge, London and New York, 2006, at p. 44.

794

18 Japan

which they are entitled to reject without prejudicing an entitlement to further offers. The level of information shared with the prospective parents about the child to be placed and his or her family background, varies considerably with some private agencies operating a policy of divulging virtually no information (including health status) regarding the child in advance of placement and treating enquiries as to the ‘type’ of child available as inferring implicit conditions and therefore constituting a contra-indicator for any placement. By Private Agency All such placements are now governed by the Adoption by Private Agency Act 2016. Following an initial agency interview of the prospective adopters, the agency investigates and confirms that the requirements for special adoption are satisfied and the child is placed with the applicants. An application is then made to the Family Court, a six month probation period ensues after which, following a positive investigative report from a family court officer, the court then makes an adoption order. The ISSJ has a declared policy of giving preference to domestic rather than foreign adopters for Japanese children.92

18.7.2 Placement Supervision During the six month trial period, from placement to application, the birth parents retain all rights and duties in respect of their child and do so until the adoption order is finalised by the Family Court—unless those rights and duties have been judicially removed. A social worker from the placing agency (usually a CGC social worker) will visit the home of the prospective adopters on average about three times, observing the interaction between the applicants and the child. The new two-stage procedure, as outlined below, then commences. From application to court hearing will add several more months to the total placement period during which a court appointed official visits on two or three occasions to confirm that everything is in order.

18.8 The Hearing In Japan, under the 2004 Act, the Family Courts have exclusive jurisdiction in respect of adoption matters. They maintain an overview and inspectoral role in relation to the adoption process. In practice about 1500 ‘ordinary’ and 400–500 ‘special’ adoption applications are brought before the courts every year. For example, in 2018: of the 941 ‘ordinary’ adoption applications, 619 were approved, 17 dismissed and 289 were withdrawn (although no precise data is available on step-parent adoptions); 92 See,

HccH, ‘Country Profile for Intercountry Adoption: Japan’, op cit, at para 2.1.

18.8 The Hearing

795

of 783 ‘special’ adoption applications, 624 were approved, 18 dismissed and 18 withdrawn.93 The adoption process, culminating in a judicial hearing, may be in respect of adult or child and in the latter case results either in rejection or in an order that closely resembles its U.K. counterpart. Following the 2019 revisions to the Civil Code the procedure has completely changed and is now governed by the Family Affairs Proceedings Act, ss 164 and 164-2. There are two stages: 1st Stage The applicant—an adopting parent or a CGC director (Child Welfare Act, s 336-2, 33-6-3) applies to a Family Court for an order confirming that the minor is eligible for special adoption. This is determined by Court assessment of the birth parents care of the minor and ensuring their consent is available and valid (order for suitability of special adoption). At this stage the court will require the application to be accompanied by copies of the original family registrations of the child and the birth parent(s). As regards a special adoption, the Family Affairs Proceedings Act 2011, s 1642(6), stipulates that at this stage the Family Court must hear the views of both the adoptee, if over 15 years of age, and those of the birth father or mother before it makes a ruling. As regards an ordinary adoption, the 2011 Act, s 161-3, requires the Family Court to hear from the person to be adopted, if 15 years of age or older and not mentally or physically impaired; and a person who exercises parental authority over a person who is to be adopted; and any guardian of a minor who is to be adopted. The birth parents then have two weeks to reconsider after which period their consent cannot be withdrawn (Family Affairs Proceedings Act s 164-2(5)). Unlike previously, a CGC director but not applicants can now apply to a Family Court and present evidence or information as to the quality of care provided by the birth parents. 2nd Stage The applicant adopter applies to a Family Court for a special adoption (order for approval of special adoption). At this stage, birth parents are not eligible to intervene in the proceedings. The court will require submission of a copy of the family registration of the applicant adopters and additional documents may be required (see, further, at Sect. 18.8.3.1). After this application, the adopting parents undertake care responsibility for the minor for a six months trial period. Then, if assessment reports are satisfactory, the Family Court issues the final order.

18.8.1 Where Consent Is Available Under the Civil Code, 817-5(3), as revised in 2019, the Family Court has to consider the wishes or intention of a child aged 15 or younger but where the child is 15 years 93 See,

Judicial Statistics 2018.

796

18 Japan

of age or older then the Court cannot approve an adoption without their consent; in either case, subject to the caveat that the child’s opinions are not impaired by mental or physical disability. Consent must be available from either the sole surviving parent, a legal guardian, both parents (if both parents are living and remain married), by the birth mother (in the case of a non-marital child), or from the governor of the institution vested with parental rights and duties in respect of the child in the absence of both parents and any guardian.94 According to the Family Affairs Proceedings Act 2011, s 164(3), the court must hear the intention/wish of the birth parent(s) in the case of special adoption. This requirement is important in circumstances where the parents of the child to be adopted are not married, either because they never were, or because of divorce. Section 797(2) stipulates, ‘where a person to be adopted is cared for by one of his/her parents and that parent does not have parental authority in relation to the person but cares for the person in accordance with section 766, a legal representative shall obtain the consent of that parent before giving the consent referred to in the preceding paragraph’. Under the 2011 Act the Family Court must hear from any person who exercises parental authority over a person who is to be adopted, and from any guardian of a minor who is to be adopted. The relevant provisions of the Civil Code are formulated on the basis that normally the child to be adopted is one for whom consent is not an issue as either this is readily available from a voluntarily relinquishing unmarried mother, or the child is presumed to be abandoned, orphaned or for other reasons is without a family. Where one or both birth parents of a child to be adopted are alive then the Civil Code requires that their consent be sought and obtained unless grounds exist for this to be dispensed with. Where the child to be adopted is 15 years of age or older, then his or her consent must also be sought.

18.8.1.1

Timing/Validity

The principle that any consent must be informed and given in circumstances free from duress is without statutory endorsement in this jurisdiction and can be open to abuse. The practice that some agencies have developed of requiring a mother to sign a ‘contract’ agreeing to an adoption placement, within 36–72 h of the birth of the child (often in circumstances where agency payment of costs for the hospital accommodation of mother and child are at least implicitly conditional upon contract completion), is legally invalid but would also be construed as improper in common law countries.95

94 In the case of an adult adoption, s 796 of the Civil Code provides that a married person shall only

adopt or be adopted by another with the consent of his/her spouse; provided, however, that this shall not apply in the case he/she adopts or is adopted with his/her spouse jointly, or his/her spouse is incapable of indicating her/his intention. 95 See, Hayes, P., and Habu, T., op cit, at chapter 5, pp. 56–68.

18.8 The Hearing

797

18.8.2 Where Consent Is Not Available Contested adoption applications are a rarity in Japan. Under s 797(2) of the Civil Code where a caring parent does not have parental authority but cares for the child in accordance with s 766, a legal representative shall obtain the consent of that parent before giving their consent under s 797(1). The need for parental consent may be judicially dispensed with in circumstances where the birth parent has abandoned the child or is “unable to declare [his or her] intention or where there is cruel treatment, malicious desertion by the father and mother, or any other cause seriously harmful to the benefits of a person to be adopted.”96 Where the child has been ‘abandoned’ then custody is vested in the Director of the local CGC who can give consent to a placement with registered foster carers ‘with a view to adoption’ pending the decision of Family Court proceedings when the judge will determine whether the need for parental consent to the adoption of their child can and should be dispensed with. Where the parent is ‘missing’ then, after a period of no contact, the court is usually prepared to dispense with the need for consent. For example, the Aizuwakamatsubranch of Fukushima Family Court once made an order for special adoption in a case where the birth mother had been missing for about two years and thus unable to give consent.97

18.8.3 Application to the Family Court All applications for ‘special’ adoptions must be made to the local Family Court and most ‘ordinary’ adoptions must be approved there. In relation to ordinary adoption: the Civil Code, s 798, provides that where the person to be adopted is a minor, then the permission of the Family Court must be obtained; but this does not apply in cases where the person to be adopted is a lineal descendant of either the adoptive parent or the adoptive parent’s spouse; then the City Office may register a regular adoption without prior Family Court approval.98 For special adoption: Civil Code, s 817-2(1), provides that the Family Court may, at the request of an applicant adopter, make a 96 Civil Code, s 817-5, states that no person who has attained 6 years of age at the time of the application referred to in the provisions of ss 817-2 shall be adopted; this shall not apply if he/she has not attained 8 years of age and has been continually cared for by a person to be an adoptive parent since before the child attained 6 years of age. Section 817-6 states that a ruling of special adoption shall only be made if both parents of a person to be adopted gives his/her consent to the special adoption; this shall not apply in cases where the parents are incapable of indicating their intention or the parents have abused the child, abandoned the child without reasonable cause, or there is any other cause of grave harm to the interests of the person to become the adopted child. Section 817-7 states that a ruling of special adoption shall only be made if both parents of a person to be adopted are incapable or unfit to care for the child or there are any other special circumstances, and it is found that the special adoption is especially necessary for the interests of the child. 97 Kateisaibangeppo 45-10-71, (14 September 1992). 98 Civil Code, s 798.

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18 Japan

ruling establishing an adoption which extinguishes the legal relationship between a child and his/her natural relatives. The hearing before the judge must be attended by the child, the prospective adopters and the court social work investigator. The latter will submit a welfare report compiled by interviewing all relevant persons including the child, if necessary, and the Family Court judge usually meets with the child (but not always). In accordance with the Family Affairs Proceedings Act 2011, s 58(1), the judge has a discretionary power to require a Family Court probation officer to examine facts and enquire into particular issues (see, Sect. 18.4.3.1). The officer may report the findings to the Family Court in writing or orally.

18.8.3.1

Supporting Documents

In relation to the ordinary adoption of a child, the court will require a re-submission of the documentation submitted at the first stage, a copy of the ruling then made, evidence that all required consents have been given and a copy of the welfare report. As regards international adoptions, the Family Court will require an application to be accompanied by the following documentation: • the usual identifying certificates e.g. birth certificates, passports etc.; • current marital status documents e.g. marriage, divorce, and death certificates (where applicable); • current health status documents e.g. medical certificates; • certificate of good conduct/no criminal record for each adoptive parent, issued by their home city or state police department; • certificate of legal address, employment, and income; • copies of any property ownership deeds and/or bank statements; • statement of consent to adopt by the child’s natural parent(s) or guardian; • statement of prospective parent(s) intent to adopt the identified child; and • character references. In addition, the court will always receive a Home Study report completed by an authorized and licensed adoption agency.

18.9 Thresholds for Exiting the Adoption Process The legislative intent behind the introduction of the ‘special’ adoption procedure was to provide a formal, professionally managed adoption process, equivalent to that of other modern developed nations, which would become the accepted route to adoption for most if not all future adoptions. This has not happened. The ‘special’ route, while important for many of Japan’s vulnerable children and offering a secure legal basis for their future welfare, has not displaced ‘ordinary’ adoption which continues to be the preferred route for most applicants.

18.9 Thresholds for Exiting the Adoption Process

799

18.9.1 Welfare Interests The primary criterion applied by the Family Court when considering any adoption application is whether the order if made would promote the welfare interests of the child concerned: there must be an intent to create a parent/child relationship.99 Some adoption applications have in fact been rejected because of the adoptive parents’ motives. However, in practice the welfare principle does not constitute a uniformly applicable threshold for exiting that process. There is no ‘checklist’ of indicators to be applied to establish that standards of welfare are satisfied in every case. As mentioned above, ‘welfare’ may be legitimately interpreted as material advantage; an interpretation more likely to be made in ‘ordinary’ adoptions, most obviously where the subject is an adult. Moreover, many ‘ordinary’ adoptions do not come before the court so the welfare test is not necessarily applied; this is particularly the case where the adopters are related to the child. The limitations of the welfare principle as a threshold for successfully exiting this process are very evident in relation to the ‘special’ adoption of a child in the public care system. Despite provision in the Civil Code for the judiciary to dispense with the need for parental consent in such cases, thereby applying the welfare criterion, there is little evidence of a willingness to do so. In the words of Hayes and Habu “this has meant that unless the parents co-operate, the function of special adoption as a way of protecting children from abuse within the family has remained latent”.100 However, Satoshi Minamikata cautions that there are “various and complicated reasons for this”.

18.9.1.1

The Paramountcy Principle

The welfare interests of a child are not given an explicit paramount weighting in statutory law. The requirement that an applicant’s success in the Japanese adoption process is dependant upon the proposed adoption being compatible with the subject’s welfare interests falls well short of according governing authority to the principle. Arguably, though, much depends on how “paramountcy” is defined: when the Family Court gives approval in relation to the ordinary or special adoption of a child it does so on the basis that the adoption should meet their welfare interests and that no other consideration shall prevail; which perhaps leads to the same end result.

99 All child adoption cases are examined by a Family Court that applies much the same set of criteria as listed in the U.K. statutory welfare checklist to ascertain a child’s welfare interests. 100 Hayes, P., and Habu, T., Adoption in Japan: Comparing Policies for Children in Need, Routledge, London and New York, 2006, at p. 5.

800

18.9.1.2

18 Japan

The Voice of the Child

The Family Affairs Proceedings Act 2011, s 165(3), is the only statutory statement relating to such matters but it only requires that testimony be heard from a child if he or she is 15 years of age or older; ‘Gillick’ competency is not a consideration. Not only is there no general requirement that the court hear and take account of a child’s views but in most cases it may proceed without his or her consent. The consent of a child, under the age of 15, is not a prerequisite for his or her adoption, and is not required by the CGC, the ISSJ or other adoption agency, nor by the court. As the ISSJ have explained101 : we don’t have that many old (10 and up) children so we do not require formal consent from a child. However, when we visit the child to do the study, we usually explain to the child who we are and what we do. So if they are around 3 and up, they usually understand what is happening to them.

If the child is 15 years of age or older then their consent is required.102 The rather intransigent government attitude towards engaging with children in judicial proceedings was articulated by the Japanese delegation to the Committee on the Rights of the Child in 2019, as follows103 : The law had set the right of the child to be heard and express her or his views at the age of 15, and there were appropriate channels to hear younger children. Japan did not intend to change the law to provide for the right of younger children to be heard.

This prompted a Committee expert to point to a contradiction in Japanese law which, while only allowing children above the age of 15 right to be heard and to voice opinions, held them criminally responsible from the age of 14.

18.9.2 Representing the Child’s Welfare Interests If the child concerned is under 15 years of age, then a legal representative is appointed to protect their interests, though the Family Court may hear opinions of the minor at its discretion. Also, as Satoshi Minamikata points out: “the Family Court usually makes its final decision on the basis of a report by a Family Court investigation officer (similar to CAFCASS officer) who observed the would be adopting parents and child during the probation period”.104 Moreover, under the Family Affairs Proceedings Act 2011, s 23(1), the Family Court judge has discretionary authority to appoint an attorney if this is considered necessary to ensure that a person of limited capacity is able to engage with court procedures. 101 See,

HccH, ‘Country Profile for Intercountry Adoption: Japan’, op cit, at para 2.3.b. Code, Article 797. 103 See, further, at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID= 24083&LangID=E. 104 Note to author (24.12.2013). 102 Civil

18.10 The Outcome of the Adoption Process

801

18.10 The Outcome of the Adoption Process There is more variance in the outcome of adoption applications in Japan than in most other modern developed nations. This is the inevitable consequence of having an exit to an adoption process that is not uniformly subject to scrutiny by the same gatekeeper applying the same criteria to the same type of subject. For example, in 2018 the Judicial Statistics reveal that: of the 941 ‘ordinary’ adoption applications to the Family Court in respect of minors, 619 were approved, 17 rejected and 289 withdrew (others 12); while of the 783 ‘special’ adoption applications, 624 were approved, 18 rejected and 77 withdrew.105 In 2012, the corresponding statistics were: 1463 applications for the ‘ordinary’ adoption of minors, of which 1148 were determined, 790 granted, 40 dismissed and 312 withdrawn; while of the 669 ‘special’ adoption applications, 414 were determined, 339 granted, 16 dismissed and 59 withdrawn. The proportion either dismissed or withdrawn is striking and may reflect a relatively weak professional input to the Japanese adoption process.

18.10.1 Adoption Orders Two weeks after concluding a hearing in favour of the applicant/s, the court considers the adoption to be final and issues the adoption decree—the tokubetsu yoshitosuru.106 The time lapse is to afford all parties a final chance to submit a plea to the court.107 In the case of an ordinary adoption of a child, the applicant adopter is entitled to make an appeal to the High Court if the Family Court dismissed the application within that two week period.108 In the case of a special adoption, any party is entitled to appeal the order within the two week period.109 Unlike a special adoption, the making of an ‘ordinary’ adoption order does not necessarily sever the child’s legal ties, rights, and privileges with regard to the birth parent/s. The main residual legal tie remaining with the child in relation to the birth parent/s is the right of inheritance.

105 The

author is indebted to Satoshi Minamikata for this information. He advises that in the case of a minor adoptee, adoption will take effect at the date the adoption order is finalised. In the case of adult adoption, it will take effect at the time the adoption notice is submitted to the office for registration. 107 See, the Family Affairs Proceedings Act: s 164(8) provides that in a ‘special’ adoption the appellants may be—the birth parents, a person holding the parental rights and duties but not parents, a guardian of the child, parents holding the parental rights and duties over the parent of the adoptee (in rare cases this may be a grandparent), and a guardian of the parent of the adoptee. 108 The Family Affairs Proceedings Act 2011, s 161(4) and s 86(1). 109 Ibid., s 164(8). 106 Ibid.

802

18.10.1.1

18 Japan

Adoption with Contact

In practice a ‘special’ adoption is judicially viewed as incompatible with postadoption contact arrangements, a characteristic of the Japanese adoption process that contrasts strongly with current trends in the law and procedures of most western nations. Where it is envisaged that ongoing contact with members of the birth family would be in the welfare interests of the child then the Family Court is likely to consider that an ‘ordinary’ adoption would be more appropriate.

18.10.2 Alternative Orders The Family Court may reject an application for a ‘special’ adoption. In that event, a child will be returned to their birth parent/s, or foster parent/s, or to an institution— depending on the circumstances—unless an application is lodged for an ‘ordinary’ adoption.

18.10.3 No Order Unusually for any adoption process, in Japan a considerable proportion of applications are simply either withdrawn or rejected.

18.11 The Effect of an Adoption Order In this jurisdiction the outcome of an adoption is very much dependent upon whether the adoptee has been the subject of an ‘ordinary’ or a ‘special’ adoption process and in the former case whether that subject was an adult or child. In either case, finalizing an adoption triggers the rules of consanguinity to proscribe sexual relations between the adoptee and the adopters or other family members within the prohibited degrees of relationship.110 Marriage is prohibited between adopted and lineal relations by blood or affinity after adoption (though not collateral relatives by blood on the side of adopting parents).

110 Note that s 734 (1) of the Civil Code permits marriage between an adoptee and adoptive sibling.

18.11 The Effect of an Adoption Order

803

18.11.1 The Child/Adoptee As in a common law context, the primary legal effect of a ‘special’ adoption on the child concerned is to ‘legitimate’ him or her and thereby place that child in the same legal relationship with their adopters as if born to them and of their marriage. In an ‘ordinary’ adoption, the child is not wholly legally severed from his or her birth family and may, for example, retain rights of inheritance in relation to that family as well as an obligation to support his/her birth family members.111 Moreover, a singular feature of Japanese adoption is that there is no prohibition on marriage between birth and adopted siblings. Where the adoptee is an adult then again the primary effect is to place him or her, and invariably the adult is a male, in the same legal relationship with their adopters as if born to them and of their marriage.

18.11.2 The Birth Parent/s An ‘ordinary’ adoption relieves the birth parent/s of their rights and duties in respect of custody and guardianship. It does not wholly and permanently sever the legal links between a child and his or her birth parent/s and such links may be maintained, for example, through the child’s inheritance rights. The legal relationship between the adoptee and his/her birth siblings also continues after adoption. The consequences of a ‘special’ adoption for the birth parent/s, however, are very similar to those in common law nations: all legal incidences of parental responsibility, including any affected by court orders relating to the child in question, are permanently and irrevocably extinguished. Note, however, there is no requirement to notify a noncustodial birth parent that their child has been adopted.

18.11.3 The Adopters In an ‘ordinary’ adoption, the legal rights vesting in the adopters are essentially those of custody and guardianship including the responsibility of administering the assets/property of a child adoptee. It does not vest parental responsibilities permanently and absolutely in the adoptive parents as such an adoption can be readily dissolved with the mutual consent of the parties. The adoption of an adult for tax avoidance purposes—exemption of succession tax (6 million yen)—was a very common practice with complex implications for adopters and birth family members,

111 The

Civil Code, Article 877.

804

18 Japan

though now somewhat curtailed by legislation. Under the Succession Tax Act 2018, s 15(3), an adoptee by special adoption is regarded as a birth child.112

18.11.4 Dissolution of an Adoption Order Under the Family Affairs Proceedings Act, s 86(1), except as otherwise provided, an appeal against a ruling must be filed within two weeks. Whether or not an adoption order can be revoked depends on the circumstances and on whether it was an ‘ordinary’ or a ‘special’ adoption. Where the adopters and adoptee agree to dissolve the adoption, they submit their joint ‘notice of dissolution’ to the City or Ward office rather than to the Family Court (if the adoptee is less than fifteen years of age then a legal representative must file the request). Where the parties do not agree, the petition must be brought before the Family Court; the birth parent(s), or anyone with legal responsibility over the child, may apply. In the latter case, a legal representative of the adopted child (usually birth parents) can agree to the dissolution and submit a notice.113

18.11.4.1

‘Ordinary’ Adoption

Such an adoption can be readily dissolved with the mutual consent of the parties. Anyone aged fifteen years or older can apply to dissolve an ordinary adoption. If, after the death of either adopter, the surviving party desires a dissolution then this may be achieved with leave of the Family Court.114

18.11.4.2

‘Special’ Adoption

A ‘special’ adoption conforms closely to the common law model; it vests all parental rights and duties exclusively, permanently and irrevocably in the adopters. The child retains no inheritance rights with regard to the biological parents and the adoption is virtually indissoluble except in exceptional circumstances as permitted under Article 817-10 of the Civil Code.115 The latter allows the Family Court to dissolve such an adoption when: (1) the fact that there is cruel treatment or malicious desertion by an adopter, or other cause seriously harmful to the benefits of an adopted child; and (2)

112 See,

further, Bryant, T.L., ‘Sons and Lovers: Adoption in Japan’, The American Journal of Comparative Law, Vol. 38, 1990, at pp. 321–325. 113 Family Registration Act 1947 s 70. 114 Civil Code, s 811(6). 115 If either parent abuses parental power or is guilty of gross misconduct, the Family Court may, on the application of any of the child’s relatives or of a public procurator, abrogate parental rights.

18.11 The Effect of an Adoption Order

805

the fact that the birth parents can take proper care and custody. Dissolution is very rare, but when it occurs then the child is returned to his/her birth parents.116

18.12 Post-adoption Support Services The financial support provided by the state to adopters offers an inducement for the latter to choose the statutory ‘special’ adoption process rather than the traditional ‘ordinary’ route which does not attract any entitlement to financial support.

18.13 Information Disclosure, Tracing and Re-unification Services There is no counterpart to the voluntary and statutory services available in the developed western nations, particularly the U.S. and the U.K., which facilitate arrangements for contact, tracing and re-unification between adoptee and members of their family of birth. It is probable that there are deeply rooted cultural disincentives for services that probe the ancestry of those known to belong by birth to different and therefore suspect bloodlines. On the other hand, the official registry where family records are kept is open for inspection to those who can show good reason for accessing the information. So, for any adult parties to an adoption, acquiring the information necessary to establish contact between them is not very difficult.

18.13.1 Information Disclosure While the subject of a ‘special’ adoption has a legal right to access identifying information held in official records, no other party has a corresponding right to access that information. Otherwise, the principle is that any person with legitimate reason is entitled to access the koseki system. There are no constraints in law or practice that prevent an adoptee from accessing his/her record of birth in the family registration book either in relation to an ordinary or a special adoption.

18.13.2 Adoption Registers All birth and adoption records are held and maintained by the City or Ward office. The family file or koseki generally contains all information that might otherwise be 116 The

Civil Code, Article 817-10.

806

18 Japan

available in separate birth, adoption, marriage, divorce, or death records. In a special adoption, koseki information is restricted to the name of the adoptive parent/s, as if they were the birth parents. Satoshi Minamakita explains117 : when a special adoption is approved, a description of minor is deleted from his/her birth parent’s family registration and his/her own sole family registration is made where only his/her name and the reason for making a new family registration (because of special adoption) are mentioned. Then, his/her name is moved from the sole family registration to that of new adopting parents with a note indicating the reason of entering into family registration of adopting parents.

In an ordinary adoption, the koseki records the names of both birth and adoptive parents.

18.13.2.1

Registration

A successful application to the Family Court for an ‘ordinary’ adoption results in the issue of a certificate allowing “Permission to adopt” (yoshi to suru koto o kyoka-suru). A similar outcome in respect of a ‘special’ adoption application concludes with the Family Court issuing a final adoption decree (tokubetsu yoshito-suru). These Family Court outcomes have the same binding legal effect. Generally, the adoptive parents then take the evidence of court approval and register the facts relating to the adoption at the City or Ward Office, though in relation to special adoptions this is not strictly necessary as the order terminates all inheritance rights the adoptee had in respect of their family of origin. In those ordinary adoptions which are not brought before the court, the parties simply bring the facts and related documentation to the City or ward Office for registration in the koseki.

18.13.2.2

The Koseki118

The koseki is an official government file held by the City Office or Ward Office that provides a consolidated record of the legal status of each and every citizen including dates of birth, marriage, death and other milestones. For a nation which places great value on the public standing of families and individuals, the koseki has 117 Note

to author (23.06.2020). Matsushima, Y., ‘Japan: What has made Family Law Reform go Astray?’ in The International Survey of Family Law, ISFL, Martinus Nijhoff Publishers, The Hague, 1999, pp. 193– 206 where this explanation is offered: “The Koseki is a registration system under which every family is registered with the government. It is said that the Koseki system was established as far back as the seventh century and its current form came into being after the Meiji Restoration. The Family Registration Law of 1871 designated all citizens as belonging to a unit for registration, classifying people into either head of the family or family members. Births, marriages, divorces and deaths are recorded. The Koseki system acts as an identifier for Japanese people in relation to such matters as whether they are of Japanese nationality or not, and it has carried great legal and social significance” at p. 197.

118 See,

18.13 Information Disclosure, Tracing and Re-unification Services

807

tremendous importance. Traditionally, divorce and adoption were seen as tarnishing these records, and, by extension, the identity and public standing not just of the individuals concerned but of entire families. An entry in the koseki serves as proof of a valid adoption. The Family Registration Law requires that the full names of the birth father and mother must be stated in the koseki. In a ‘special’ adoption, the koseki will show only the name of the adoptive parents, as if they were the birth parents, whereas for an ‘ordinary’ adoption both the birth and adoptive parents’ names are shown. If paternity has been admitted, the father’s name and the fact of admitting paternity will also be stated as this is required under the provisions of Article 35 of the Enforcement Regulations of the Family Registration Law. This Article states: The matters set forth in the following items shall be entered in the personal status history column of the persons prescribed respectively in those items: (i) with regard to matters concerning a birth, the child; (ii) with regard to matters concerning acknowledgment of parentage, the father and child; (iii) with regard to matters concerning an adoption (excluding a special adoption) or the dissolution of such adoptive relationship, the adoptive parent(s) and adopted child; (iii)-2 with regard to matters concerning a special adoption or the dissolution of such adoptive relationship, the adopted child, and if the adopted child is not a Japanese national (hereinafter referred to as a “Foreign National”), the adoptive parent(s); (xvi) with regard to matters concerning a change of gender, the person who has received a judicial decision of such change.

18.13.2.3

The Resident Registration System

In the case of an ordinary adoption (whether of minor or adult), the difficulty of tracing through the koseki files may be avoided by tracing instead through the Resident Registration System. Under this system, everyone must be individually registered at their current address with the local authority and this usually means that the address of an adopted child is transferred from the birth parent’s residence registration to that of the adopters at the time of the adoption. This enables a birth parent to track down the new address of their child and identify the adopters, should they wish to do so.

18.13.3 Conditional Access While a family koseki is closed to the public, any adopted person aged 18 or more, wishing to identify his or her birth parents, has a right of access to the koseki of their birth parents from which his or her name had been removed. Birth mothers are usually anxious to ensure that no reference to the adopted child appears on their koseki but, although this possibility is provided for in the ‘special’ adoption procedure, it is not difficult to discover the fact of adoption once the koseki is inspected. An ‘illegitimate’ child may also identify his or her father where he has admitted paternity as this will have been recorded.

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18 Japan

There is no explicit legal right specific to birth parent/s that entitles them to identifying information regarding the name and whereabouts of their adopted child nor is there any provision for a contact register in which they might enter a request for contact. However, normally both the birth parent/s and the adopters have an entitlement to limited access to adoption information.

18.13.4 Tracing and Re-unification Services There is no Japanese counterpart to the statutory services and processes in common law jurisdictions that carefully differentiate and regulate the rights of parties to an adoption in circumstances where one or more wish to locate and make direct contact with others.

18.13.4.1

The Adoption Agency

The ISSJ has explained its procedure as follows119 : ISSJ does not give out all the information to the adoptee. We first make sure of the psychological state of the adoptee, what information they want and the motives for knowing the origins. We especially do not tell adoptee about negative information such as birth parents getting raped, birth parent being a criminal etc. We give full counselling to the adoptee as well.

It adds that it “also assists adoptees if they want to be reunited with birth family. We provide counselling to both sides and make sure that ISSJ intervene at their meeting”. How representative this is of practice among other adoption agencies is unknown.

18.13.4.2

The Role of Adoption Support Agencies

Since the introduction of the Adoption by Private Agency Act 2016 registered adoption agencies are required to offer a post-adoption support service. In practice, the placing agency carries out follow up visits to ensure the child has settled. The ISSJ will do so in relation to domestic placements and in relation to intercountry adoptions it will require foreign adoption agencies to undertake at least 3 monitoring visits and provide reports for a period of 6 months following placement. Other nonprofit adoption support groups exist, such as Adoptive Families of Tokyo (AFT), which also offer support to those considering adoption or who have adopted domestically and internationally.

119 See,

Ministry of Health, Welfare and Labour, “Reference Material: Current State of Alternative Care”, March 2014 (as cited in Human Rights Watch, ‘Without Dreams’ report, op cit, at p. 12).

18.13 Information Disclosure, Tracing and Re-unification Services

18.13.4.3

809

Agency Records

The ISSJ has declared that it permanently maintains all files relating to an adoption.120 For how long it has had this practice, and to what extent it is representative of practice in other agencies, is not known.

18.14 Conclusion Japanese culture does not readily accommodate interventionism; such an approach perhaps runs counter to an ingrained need to maintain the formalities of mutual respect as a working basis for social and personal relationships. Consequently, there is no established ethos of state intervention in family matters which resulted in the statutory introduction of the ‘western’ adoption process being delayed until 1988. This has resulted in the Japanese adoption process having some singular characteristics. The comment on the characteristics of adoption in Japan, made by Morris more than a century ago, seems just as relevant today: It is a combination of old and new, of native and foreign, oriental and occidental customs and principles; all have been employed by Japanese jurists in erecting their present institution. Their old time conception of the relationship was, without question, unique, and the incorporation of western ideas into their system, has not rendered it less peculiar but has rather tended to emphasise its peculiarity.121

120 Ibid., 121 Op

at p. 11. cit at p. 149.

Chapter 19

China

19.1 Introduction China, with 1.4 billion citizens, or one-fifth of the world’s population—spread over 31 mainland provinces, municipalities and autonomous regions—is the world’s second largest country. Over the last four decades, since the 1978 reforms, it has undergone dramatic change. Politically, China has remained under the centalised control of the Communist party and acquired global presence while its economy has evolved from being rigidly centrally planned and managed to becoming much more of an ‘open market’. After a huge governmental investment in modernising its infrastructure, China’s manufacturing capacity and technological achievements, its financial brokering, exports and marketing outreach, have attained world class standards and continue to grow rapidly.1 However, it faces serious long-term demographic challenges. The consequences of its one-child policy may well present social policy issues to undermine growth momentum as population trends become skewed by gender imbalance and by the ratio of wage-earners to retired, in addition to a growing alienation of the conservative rural communities from the rapidly expanding ‘westernised’ urban elite. The latter may well feed into political instability as tensions increase along the Communist/capitalism interface. In the meantime, there has been considerable dislocation at family and community levels as factors such as urbanisation, social mobility, a more nuclear family orientation, expanding communication networks and greater levels of disposable income for some, all come into play. Part of the ensuing collateral social damage can be seen in the increased numbers of abandoned children and the correspondingly reduced coping capacity of China’s traditional forms of institutional child care facilities. Consequently, the government has formed the view that adoption, both on a domestic and intercountry basis, offers the most practical option for coping with its escalating child care problems. 1 See,

for example, The Munk Debates, Does the 21stCentury Belong to China?, House of Anansi Press, Toronto, 2011. © Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_19

811

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19 China

This chapter, in keeping with the other jurisdiction specific studies, begins with an exploration of the particular social backround factors that have been instrumental in shaping the contemporary role of adoption practice in China. It is followed by a brief review of the government’s evolving policy towards adoption and a summary of relevant legislative provisions. The template of adoption functions is then applied to describe and examine the adoption process and identify the differentiating characteristics that distinguish it from its western counterparts. Particular attention is given to the crucial role played by the China Center for Children’s Welfare and Adoption (CCCWA)2 and such other agencies as the Social Welfare Institutes. The chapter concludes with a review of the available post-adoption support services and the Chinese approach to information disclosure.

19.2 Background The People’s Republic of China was established in 1949. Although China became steadily less centrally controlled, in the decades that followed, it has retained the intensely bureaucratic and hierarchical administrative system typical of communist states. This has hampered the capability of its care institutions to respond flexibily and promptly to new patterns of social need. Other more deeply rooted cultural factors have also played a part. Perhaps the most prominent cultural component that continues to influence government response to the unfolding changes impacting upon family and society, and one with particular implications for adoption in this country, is the traditional preference given to males.3 The male status bias has its roots in Confucian beliefs centred around ancestor worship. Not only did it fall to the males to continue the family name, and all that this had come to represent in their community, but they also had the exclusive responsibility of performing ancestor worship duties.4 There was an expectation that boys would grow up to fulfill their traditional duties, ensure the continuation of the family lineage and assume responsibility for the care of elderly parents.5 For a family without boys, daughter-in-law adoption had provided one way of increasing the chances of securing a male heir but that possibility was prohibited by the Marriage Law 1950. The law for the Protection of the Rights and Interests of the Elderly People, introduced in July 2013, has reinforced the traditional male role and illustrates both the ongoing cultural importance of the filial duty and that adherence to it had become so lax as to require enforcing legislation. 2 See,

further, at: https://www.cccwa.cn/index_en.shtml. Wolf, A. and Huang, C., Marriage and Adoption in China: 1845–1945, Stanford University Press, 1980. Also, see, Wang, F. and Lee, J., ‘Adoption among the Qing nobility and its implications for Chinese demographic behaviour’, History of the Family, Vol. 3, Issue 4, pp. 411–427, 1998. 4 See, Menski, W., Comparative Law in a Global Context: The Legal Systems of Asia and Africa, Cambridge, University Press, 2000. 5 See, Arnold, F. and Zhaoxiang, L., in Poston, D.L. and Yaukey, D. (eds), ‘Sex Preference, Fertility, and Family Planning in China’ in The Population of Modern China, Springer, pp. 491–523. 3 See,

19.2 Background

813

19.2.1 The Social Context Giving Rise to Adoption Government management of population growth, primarily through an authoritarian family planning policy that was discontinued in 2015, is by far the most dominant factor governing the contemporary role of adoption in China. The consequences of this policy are now becoming apparent. As has been pointed out “for China’s population, the biggest event in the first half of the twenty-first century is the arrival of negative growth”.6 Children have become a scarce resource.

19.2.1.1

Family Planning

The significance of family planning in relation to adoption is unambiguously stated in the Adoption Law, Article 3, ‘adoption shall not contravene laws and regulations on family planning’. The One-Child Policy Preceded by other, less-stringent family planning initiatives throughout the 1970s, this policy7 instituted a set of regulations that limited the number of children per family, as an attempt to reduce poverty promote modernization in what was then the world’s most populous nation. Since the introduction of the policy in 1979, until it was officially broadened to a ‘two-child’ policy in 2015, pregnancies were closely monitored and enforced by the state through mandatory contraception, enforced abortion, fines, and by a Communist party structure that at a local level closely monitors daily family life. In general it has meant that each family was allowed only one child on penalty of a “social compensation fee”—a fine of 3–10 times a household’s annual income, set by each province’s family planning bureau. It has been reported that this policy both achieved its aim in reducing population growth8 and brought the government an estimated 2 trillion yuan ($314 billion) in fees since 1980.9 Given the well-established cultural preference for a male child it is unsurprising that the one-child policy quickly led to a surplus of girls. As Greenhalgh and Li noted 6 Report

from the Chinese Academy of Social Sciences (CASS),(January 2018).

7 See, further: White, T., China’s Longest Campaign: Birth Planning in the People’s Republic, 1949–

2005, Cornell University Press, Ithaca and London, 2006; Scharping, T., Birth control in China, 1949–2000: population policy and demographic development, Routledge Curzon, NY, 2003; and David, D., ‘“Never mind if it’s a girl, you can have another try”: The Modification of the One-Child Family Policy and its Implications for Gender Relations in Rural Areas’, in Delmen, Ostergaard and Christiansen (eds.) Remaking Peasant China: Problems of Rural Development and Institutions at the Start of the 1990s, Denmark: Aarhus University Press, Denmark, 1990, pp. 81–91. 8 See, for example, Gu, B., Feng, W., Guo, Z. and Zang, E., ‘China’s Local and National Fertility Policies at the end of the Twentieth Century’, Population and Development Review, Vol. 33, No. 1, Blackwell, Mass., U.S., 2007, pp. 129–148. 9 See, ‘The one-child policy: the brutal truth’, The Economist, Jun 23rd 2012, at: https://www.eco nomist.com/node/21557369.

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in 1995, in the province of Shaanxi consistently more girls than boys were given away for adoption or abandoned in response to policy dictates.10 Parents having reached their quota, but with a female child or one with a disability, were tempted to try again for a ‘perfect’ boy. The consequent abandonment of many disabled or female babies overwhelmed the nation’s orphanages and generated a black market in which children—particularly male babies and toddlers—were treated as commodities, to be bought or stolen and sold on by unscrupulous traffickers11 : such practices being specifically prohibited under Article 31 of the Adoption Law. The policy was eased in 1984, with Xinhua announcing a further relaxation in November 2013, and in 2016, creating a “1.5 child policy” in rural areas while maintaining a strict one-child policy in urban areas.12 Despite an immediate post-ban boost in the number of births, the outcome to decades of subjection to a rigidly policed family planning programme has been a steadily falling annual birth rate. By 2018 the birth rate had fallen to its lowest level since 1961.13 The cost of living in urban China and the normalization of single-child families is now such that delayed marriage and deferred family life has become the norm for the millennial generation. It is against such a policy background that the government enactment of the Adoption Law in April 1992, and its amendment in 1998, must be viewed. Among other provisions, this law also enabled foreigners from a range of first-world industrialized countries to adopt Chinese orphans.

19.2.1.2

Marriage and Family Breakdown

The marriage rate peaked in 2013 at 9.9% in 2013 before steadily falling to reach an 11 year low of 7.3% in 2018. The social effects of a simultaneous decline in the annual rates of births and marriages, over the past decade and more has in recent years been further compounded by a steadily rising annual divorce rate. A statistical report on the development of China’s social services in 2012, released in June 2013 by China’s Ministry of Civil Affairs, revealed that the growth in the country’s average divorce rate was higher than that of the marriage rate.14 An estimated 2.87 million Chinese marriages ended in divorce in 2012 alone, a number on the rise for the seventh consecutive year in a row, but by 2018 that number had risen 10 See, Greenhalgh, S. and Li, J., ‘Engendering reproductive policy and practice in peasant China: for a feminist demography of reproduction’, Signs, Vol. 20, Issue 3, pp. 601–641, 1995. 11 Some level of insight into the world of trafficking in China may be found in Garrow, J., The Pink Pagoda, WND Books, 2012; but see, further, at: https://research-china.blogspot.co.uk/2012/03/rev iew-of-jim-garrows-pink-pagoda.html. 12 See, further, Wang, L., Outsourced Children: Orphanage Care and Adoption in Globalizing China, Stanford University Press, (2016). 13 See, further, at: https://www.scmp.com/economy/china-economy/article/2182963/chinas-birthrate-falls-again-2018-producing-fewest-babies. 14 See, further, at: https://english.cri.cn/6909/2013/06/19/3441s771053.htm.

19.2 Background

815

to 4.2 million.15 In 1985 the divorce rate was a mere 0.4 out of 1000, reaching 1.6 in 2007 but by 2012 it had risen to 2.2 and by 2018 it was much the same as the U.S. It would seem that the recent upward trend has been the result of several factors including: the one-child policy and the resulting gender imbalance in the population; new and easier divorce procedures; the growing population of white-collar females with high education and financial independence; and a general loosening of traditional conservative views, especially in urban areas which have the highest divorce rates. As in other countries, the rising rates of marriage breakdown and of re-marriage are directly linked to a corresponding rise in the rates of step-adoptions. There is no legal provision for same sex marriage in China and adoption by such couples is prohbited.

19.2.1.3

Unmarried Mothers

Until 1997, non-marital sex was illegal in China. By 2014 it was neither illegal nor uncommon. Indeed it is estimated that the number of unmarried women giving birth is currently growing by 10–13% per annum.16 However, the status of unmarried mother still breaches family planning laws and attracts a mandatory fine (even for a first child), considerable social stigma, and no child support welfare benefits. Moreover, until 2016, an unmarried mother was denied any entitlement to a hukou (household registration) that provides access to state services without which: children would be denied immunisation, affordable health care and schooling; and adults, employment and the right to inherit family land. However, in the past year or two there is mounting evidence of a new policy towards unmarried mothers.17 A change in the law means that applications for birth certificates will no longer require a marriage certificate; enabling unmarried mothers to apply for birth certificates for their children that are essential when registering permanent residence in China. Nonetheless, although there are signs of more flexible localised policies, an unmarried mother and her child continue to be burdened not only with the stigma of ‘illegitimacy’ but with other legal and social penalties. National laws and policies, traditionally discriminatory towards unmarried mothers, have yet to be wholly revised and replaced by officially inclusive provisions. Ease of access to abortion services, and the extent of its general social acceptance, results

15 See, further, at https://www.scmp.com/comment/opinion/article/3039370/chinas-divorce-rate-spi

king-because-women-no-longer-have-accept. 16 See, further, at: https://www.voanews.com/content/single-chinese-mothers-struggle-to-ove rcome-social-hurdles/1690998.html. 17 See, further, at: https://www.bloomberg.com/news/articles/2019-10-28/baby-shortage-promptschina-s-unwed-mothers-to-fight-for-change.

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in many pregnant unmarried women opting to avail of it—rather than choosing the complications of adoption—as the route for avoiding stigma and social exclusion. Abandoned Children/Orphans Largely as a consequence of the above difficulties, the abandonment of infants, mainly newborn babies, has been a longstanding problem in China (as in some western countries).18 It is estimated that a total of approximately 100,000 children are abandoned every year, many with disabilities,19 largely because their parents cannot afford to care for them as well as to avoid the social stigmas related to disability.20 Recently, this problem would seem to have eased. According to the 2017 Social Services Development Statistics, the latest data available, published by the Ministry of Civil Affairs, there were 410,000 orphans in China, 101,000 fewer than the figure given just two years earlier, in the China Child Welfare Policy Report.21 The picture has also become more complex due to the phenomenon known as ‘the children left behind’22 which has emerged as a consequence of internal (and external) migration of parents leaving their children in the care of relatives or friends as they move to the cities in search of employment. According to a 2018 UNICEF report, some 69 million children have been left behind by one or both parents, equivalent to thirty percent of the children in rural areas.23 As Leslie Wang comments “this also speaks to the lack of government help given to families with sick and disabled babies”.24 Baby Hatches Chinese news source Xinhua reports that in order to increase the likelihood of survival, at least 25 baby hatches have been established in 10 provincial regions in China, Xinhua reports. These are generally located in or adjacent to hospitals. They provide a safe refuge for the child and anonymity and freedom from prosecution for the depositing parent. One such facility opened in Guangzhou in January 2014 but was forced to close 3 months later as more than 260 infants had been left and staff were overwhelmed. All the infants had illnesses—such as cerebral palsy, Down’s syndrome and congenital heart disease—which suggests that they were abandoned because their parents could not afford the medical care they needed. In recent years many baby hatches have had to close—having become victims of their own

18 See,

for example, Johnson, K., China’s Hidden Children, University of Chicago Press, 2016. Wang, L.K., Outsourced Children: Orphanage Care And Adoption In Globalizing China, Stanford, Stanford University Press, (2016). 20 See, further, at: https://www.nytimes.com/2018/01/24/world/asia/china-abandoned-baby.html. 21 See, further, at: https://resourcecentre.savethechildren.net/sites/default/files/documents/2591. pdf. 22 See, further, at: https://www.abc.net.au/news/2020-01-19/left-behind-children-in-china-docume nted-in-photography-project/11873144. 23 UNICEF China 2018 Annual Report” (PDF). UNICEF. 24 Note to author (06.08.2020). 19 See,

19.2 Background

817

success—as they were overwhelmed by the numbers and the health care needs of the abandoned infants.25

19.2.1.4

Abortion

In China, abortion is a government service available on request but it was also provided compulsorily when a breach of the one-child policy was detected or suspected. The abortion rate for the United States in 2015 was about 12 per 1000 women aged 15–44 while China in 2016 had an abortion rate of about 28 per 1000 women aged 15–49. It has been estimated that more than 330 million induced abortions have been carried out in China since the one-child policy was implemented in the early 1980s.26 The National Health and Family Planning Commission indicates that more than 9 million abortions are currently conducted in the country every year.27 These statistics account only for surgical procedures conducted at licensed hospitals and clinics; not included are medically induced abortions or procedures conducted at the unlicensed clinics that are more prevalent in rural areas. Even so, the rate of abortions is well above that of the U.S. and is heavily gender biased as, when advised that their foetus is female, many pregnant women will resort to abortion in the hope that their next pregnancy will deliver a son.28

19.2.1.5

Assisted Reproduction Services

According to World Bank data, the Chinese fertility rate in 2018 was 1.7 (total births per woman), the same as that of the UK and the US.29 Infertility in China has increased rapidly in the last decade but, unlike other nations experiencing rapid socio-economic growth, this development supplemented rather than challenged government policy. The recent history of western developed economies shows that rising incomes and urbanization generally lead to falling birthrates and this is now being shared by China as it escalates its pace of modernisation. Delaying childbirth until after a woman turns 35 and multiple abortions are often to blame for infertility and miscarriages, but male infertility is also on the rise in China, possibly due to environmental pollution.30 In 2001, there were only five 25 See, for example, ‘The Future of Baby Hatches in China; at: https://www.womenandbirth.org/art icle/S1871-5192(15)00325-X/pdf. 26 See, further, at: https://www.inkstonenews.com/society/inkstone-index-chinas-abortions/article/ 2181324. 27 See, China National Health and Family Planning Statistics Yearbook 2017. 28 For a study of sex-selective abortion in China, see Chuo, J., ‘Prenatal sex determination and sexselective abortion in rural China’, Population and Development Review, Vol. 27, Issue 2, pp. 259– 281, 2001. 29 See, further, at: https://data.worldbank.org/indicator/SP.DYN.TFRT.IN?locations=CN. 30 See, further, at: https://english.peopledaily.com.cn/200704/10/text20070410_364978.html.

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infertility clinics in all of China, whereas now there are hundreds, with more opening every month. A 2018 study estimated the rate of infertility among couples of reproductive age to have reached 25%.31 China is believed to have a current birth rate of just over 1.5 children per woman of childbearing age, well below the necessary population replacement level of 2.1, and low in comparison to 2.55 in India.32 Contrary to the policy response in western nations, but unsurprising given government concerns regarding the size of its population, there is no government incentive in China to facilitate the availability of assisted reproduction technology. Surrogacy Chinese Ministry of Health regulations prohibit gestational surrogacy; this does not mean that surrogacy services are unavailable, just that they are not officially recognised. However, such has been the pace of socio-economic change in China that many now have the financial means to afford surrogate services available in other countries. A more recent trend involves increasing numbers of Chinese citizens travelling to the U.S. to avail of such services and, in the process, acquiring an American passport for their child (enabling that ‘child’, when aged 21 or more, to apply for a ‘green card’ permitting their parents to emigrate to the U.S.).33 This option is particularly attractive for Chinese same sex couples as well as others with infertility or gynecological issues—or who simply wish to ensure a male heir.

19.2.1.6

Increase of Children in Public Care and Protection

A 2003 report from the Ministry of Civil Affairs of the People’s Republic of China, recognizes the challenges it faced in providing for the welfare of at-risk children and youth34 : The older systems and traditional approaches to providing services for children’s welfare can no longer meet the increasing needs of vulnerable children in the developing contemporary context. It is essential to look at the broader context of children’s needs and rights, in the evolving nature of welfare services …

Acknowledging the lack of any national statistics on the total number of orphans and other children who were not living with their birth families, the report states that ‘there are currently 54,550 orphaned and abandoned children. the majority disabled, 31 See, Zhou, Z. and Zheng, D., et al., ‘Epidemiology of infertility in China: a population-based study’, BJOG, Vol. 125, Issue 4, (2018), pp. 432–441. 32 See, Brannigan, T., ‘Days of the one-child rule could be numbered as Beijing considers change’, The Guardian, Friday 29 February 2008, at: https://www.theguardian.com/world/2008/feb/29/ china.population. 33 See, Langfitt, F., ‘Made In The USA: Childless Chinese Turn To American Surrogates’ 21st April, 2014, at: https://www.npr.org/blogs/parallels/2014/04/21/305514689/made-in-the-u-s-a-childlesschinese-turn-to-american-surrogates. 34 See, the Ministry of Civil Affairs, People’s Republic of China, China Country Report, at: https:// resourcecentre.savethechildren.se/sites/default/files/documents/2591.pdf.

19.2 Background

819

who are currently in care’ together with ‘about 150,000 street children’.35 Unlike the complex interpretation given to the term ‘child care’ in other countries, in China this refers to the care of orphans and abandoned children. There is little evidence of a legal and social welfare focus on protecting children within their birth families from neglect and abuse; nor that the latter could provide grounds for child protection measures permitting state intervention that in turn might provide justification for non-consensual adoption. Article 8 of the Law for the Protection of Minors requires parents to ‘fulfill their responsibility of guardianship and their obligations according to law to bring up minors’ and specifically directs that they ‘shall not maltreat or forsake the minors’ while Article 52 warns that criminal proceedings will be initiated against ‘whoever maltreats a minor family member in a vicious manner’. However, there is no authority permitting implementation of preventative child protection measures. Although Article 12 of the Law for the Protection of Minors provides for the removal of parental rights in circumstances of child abuse and neglect, and Article 4(3) of the Adoption Law provides authority for the adoption of children under the age of 14 where ‘parents are unable to rear them due to unusual difficulties’, these provisions are very rarely utilized because state intervention in family affairs is viewed as culturally inappropriate as would be any consequent legal displacement of parental rights and responsibilities. As Frost has pointed out, ‘child abuse and neglect not only is not the emphasis in the current Chinese adoption system, but is also not the main reason for building a legal adoption relationship’.36 Instead, as the 2003 report goes on to explain, the care strategy is focused on orphaned or abandoned children for whom the service provision is as follows37 : in general, a placement for the child is first sought in the community, with the orphaned child’s extended family, following traditional patterns of care. Where such community care is not possible, children are placed in social welfare institutions, from which adoption or fostering oportunities can be assessed. In locations where local conditions mean that social welfare institutions do not exist, dispersed foster care is found for this group of children.

It also needs to be said that the term ‘orphan’ is at best suspect: mostly, the children in orphanages or otherwise in the care of Social Welfare Institutes have a live parent or parents but have been abandoned by them for reasons of poverty, or because they lack the financial means to care for a sick or disabled child, or because they are not of the desired gender. Foster Care China is in the process of changing from its traditional reliance upon institutional care to developing an emphasis on foster care; often, in practice, the latter is initiated and supervised by orphanage staff.38 First implemented in Shanghai in 1997, the 35 Ibid.,

at p. 51.

36 See, Frost, N., Child Welfare: Child Placement and Children Away from Home, Taylor & Francis,

2005, at p. 122. the Ministry of Civil Affairs, 2003, op cit at p. 52. 38 See, for example, Beckett, C. and Thoburn, J., ‘Family placements from a Chinese institution’, in Adoption & Fostering, Vol. 26, Issue 3, 2002, pp. 19–27. 37 See,

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foster care programme was endorsed in 2000 by the Ministry of Civil Affairs which then made a policy commitment to promote foster care in response to the problem of increasing numbers of orphaned and abandoned children as the most appropriate means of facilitating their re-integration into family life. It is the view of the Ministry that ‘this policy is one of the most important approaches to the “socialisation of social welfare”, that is the development of civil society and community approaches in welfare provision’.39 By 2020, the success of this policy could be seen in the fact that almost every orphanage had developed a foster care programme. Residential Care This is the main child care resource. In response to the growing street children phenomenon40 in the late 1980s and 1990s, the increasing numbers of orphaned and abandoned children have, since 1998, been largely accommodated in residential care facilities. Currently, there is a policy emphasis on changing from large institutions to small group homes. As explained in the 2003 report from the Ministry of Civil Affairs, there are five categories of residential care: institutional care; welfare homes providing rehabilitation; residential care for disabled children; street children protection centres; and residential vocational schools. The first category, usually referred to as orphanages, are where children available for domestic and intercountry adoption are accommodated. There are now over 1000 orphanages in China containing children who, because they are orphans or have been abandoned, cannot be reunited with their birth family. There have been baby trafficking scandals associated with some orphanages. In 2005, according to the Xinhua news agency, officials in Hunan and Guangdong provinces were prosecuted for trafficking: 23 civil officials were fired; three baby traffickers were sentenced to 15 years in prison, and six others were given terms of three to 13 years.41 Six orphanages were found to have purchased nearly 1000 children, mainly young infants, from traffickers for the purpose of domestic and intercountry adoption. It would seem that as intercountry adoption drains adoptable children from the orphanages there is a financial incentive to find replacements to cater for the growing domestic and intercountry market. Most orphanages require substantial fees for domestic adoption, or ban them outright, and all elicit substantial donations for intercountry adoptions.42 Indeed, there is now a mandatory fee, imposed by all orphanages

39 Ibid.,

at p. 54. for example: Gao, Y., Atkinson-Sheppard, S. and Yu, Y., ‘A review of the national policies on street children in China’, Children and Youth Services Review, 93, (2018) at pp. 79–87. 41 See, Xinhua, ‘23 Officials Punished for Child Trafficking’, February 26, 2006, at: https://english. gov.cn/2006-02/26/content_211254.htm. Also, see, Beth Loyd, ‘China’s Lost Children’, May 12, 2008, ABC News, at: https://abcnews. go.com/print?id=4774224. 42 See, Peter S. Goodman, ‘Stealing Babies for Adoption’, March 12, 2006, Washington Post, at: https://www.washingtonpost.com/wp-dyn/content/article/2006/03/11/AR2006031 100942_pf.html. 40 See,

19.2 Background

821

nationwide, of $5000 U.S. for each intercountry adoption.43 As the ‘market’ changes, with domestic adopters now assertively competing for the young and healthy infants in orphanages, some of these facilities are adjusting their intake to ensure that an alternative supply of ‘ageing out’ or special needs children is available for intercountry adopters; this has led to reports of fraudulent practices.44 Nonetheless, it must be acknowledged that the income generated by intercountry adoption has led to an improved quality of life for many children in orphanages. The effects of an increased revenue flow going directly to those orphanages participating in intercountry adoptions has been noted by Johnson and others “including improved physical plant, improved staffing, higher quality medical care, and, in the best orphanages, improved attention to developmental and educational needs”.45 While the China Center for Children’s Welfare and Adoption (CCCWA) permits and regulates the small minority of orphanages designated as suitable for intercountry adoption, there are hundreds, perhaps thousands, of orphanages that are not so officially designated but quite probably have informal arrangements with those that are. The existence of such a ‘gap in the market’, where each child attracts a considerable financial reward, has enabled baby trafficking problems to develop.46 Kinship Care A strong family ethos, traditionally an important Confucian characteristic of Chinese culture, continues to be respected and reinforced by the authorities. This is illustrated by the lengths to which officials will go to return abandoned children to the care of their families of origin. Where members of the birth family are dead or cannot be located then an abandoned child will often be fostered, without remuneration, with other relatives who seldom consider adoption.

19.2.2 Resulting Trends in Types of Adoption The social stigma traditionally associated with adoption, particularly for those with infertility issues, is fading in China. Third party domestic adoptions are steadily increasing while adoption by relatives (qinqi) retains its attraction as a means of strengthening bloodlines, vesting legal status and responsibility in step-parents and assisting family members compromised by the two-child policy. Third party international adoptions, however, are in freefall: down from 34,529 in 2010 to 18,820 in 43 See, Families Thru International Adoption, ‘Cost to Adopt from China’, at: https://www.ftia.org/

china/costs.asp. 44 See, further, at: https://research-china.blogspot.co.uk/2012/04/dark-side-of-chinas-aging-out-orp

han.html. Johnson, K., ‘Politics of International and Domestic Adoption in China’, Law & Society Review, Vol. 36, No. 2, 2002 at p. 388. 46 See, Charlie Custer, ‘Kidnapped and Sold: Inside the Dark World of Child Trafficking in China’, the Atlantic, 25th July, 2013, at: https://www.theatlantic.com/china/archive/2013/07/kidnappedand-sold-inside-the-dark-world-of-child-trafficking-in-china/278107/. 45 See,

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2017. It must also be borne in mind that an unknown number of informal adoptions and illegal adoptions occur, particularly in rural areas of China, in accordance with traditional customs, which tend not to involve official registration.47

19.2.2.1

Third Party Adoptions

While intercountry adoption from China is rapidly shrinking, domestic adoption is on the rise. Partly this is because the government has introduced more stringent regulations for foreign adoptions, and put greater emphasis on local adoption solutions, in an effort to find permanent homes for Chinese children in their own country.48 The fact that intercountry adoption prevents many domestic families from adopting, thereby creating a scarce resource for third party prospective adopters (Bao-yang), is also reinforcing adoption as a socially respectable activity. Overall, there has been a noticeable decrease in children available for adoption: on a domestic basis, this was due in part to increased prosperity which has resulted both in fewer children being abandoned and an increase in the number of families choosing to have more than one child and pay the related fine (prior to the implementation of a two-child policy); on an intercountry basis, the encouragement of domestic adoption has led to fewer children available for foreign adoption. The absence of abused or neglected children made available for adoption following state intervention on the grounds of failed parenting, as is common in many other countries, is also a characteristic of China’s contemporary adoption system. Domestic Zhong has argued that ‘before 1992, there was no legal procedure for domestic adoption in China’ and the Adoption Law 1991 (which took effect in April 1992) was introduced ‘to legalise and promote domestic adoption’.49 However, a contrary view offered by Johnson seems more convincing50 : The purpose of the 1991 National Adoption Law was to suppress customary local adoption which was widespread and growing in the central rural areas of China in the 1980s and 1990s. Had domestic adoption not been suppressed the large pool of healthy girls drawn into the hands of state orphanages and made available for international adoption would never have existed and hence international adoption would not have grown.

Her more nuanced explanation for gender biased domestic adoption is interesting51 :

47 See, further, Zhang, W., ‘Child Adoption in Contemporary Rural China’, Journal of Family Issues,

Vol. 27, No. 3, pp. 301–340, 2006. Riley, N.E. and Vleet, K.E., Making Families Through Adoption, Pine Forge Press, US, (2012). 49 See, Zhong, J., ‘China Domestic Adoption’, at: https://www.chinesechildren.org/Newsletter% 5CWindow%20to%20China/WTC_03_2002.pdf. 50 Note to author (30th August 2014). 51 Ibid. 48 See,

19.2 Background

823

There were in fact two reasons that people wanted to adopt - childlessness and daughterlessness. While those with one or more daughters may have abandoned an additional daughter, those with no daughter wanted to adopt a daughter. The widespread popular ideal was not a simple son preference but to have both a son and a daughter … the adoption law also increased the rate of abandonment in some areas because the customary way of finding a family for an over quota daughter through local adoption (both secret and not, with relatives and with unrelated adopters) was cut off or made more difficult.

But it is hard to avoid the suspicion that the domestic adoption of girls was in part a forced choice: as Chinese culture placed a higher value on boys, during a time of stringent fertility regulations, there were simply a lot more girls available. Supporting evidence for this view can be found in research studies. Liu, for example, concedes that “traditional motives for the adoption of boys are still influential today.” She reports that: “adoption rates for girls are consistently higher than for boys … the increase in total adoptions after 1978 can be attributed to the increase in the adoption of females … following the introduction of the one-child policy” but adds that “it is possible that in fact they wanted a son but could not adopt one because there were too few boys available for adoption.”52 She and her fellow researchers “speculate that son preference and resistance to the family planning policy persisted, and that girls continued to be given away during the 1990s …”.53 They conclude that “child adoption in China increased in the 1980s in response to the rise in the abandonment of girls”. This in turn had been caused by the one-child policy, a prominent effect of which was the relative rise in value attached to male children, leading inevitably to a greater probability that an abandoned and adoptable child would be female.54 The peak year for domestic adoptions was 2000, when 55,802 were registered. In 2001 there were 37,200 domestic adoptions, constituting 81% of all adoptions in that year, and China was then considered to have the second largest number of such adoptions worldwide, though the proportion aged under five was relatively low.55 In 2011, according to the China Civil Affairs Statistic Year Book 2012, there were 31,329 children adopted of which 90% were adopted by Chinese citizens and 10% by foreigners. By 2018, total domestic adoptions had fallen to 16,267.56 It must also be borne in mind that these figures are drawn solely from the officially registered adoptions. There is simply no way of knowing how many additional domestic adoptions that were informally arranged in accordance with traditional customs practiced for generations took place in rural China, but probably far more than were officially recorded. However, it would seem that because domestic adopters were limited not only by the constraints of the one-child policy, but also by age and residency requirements 52 See, Jihong, L., Larsen, U. and Wyshak, G., ‘Factors affecting adoption in China 1950–1987’, Population Studies, Vol. 58, No. 1, 2004, pp. 21–36. 53 Ibid., at p. 34. 54 Ibid. 55 See, UN Dept of Economic and Social Affairs, Child Adoption: Trends and Policies, 2009, at p. 69. 56 See, further, at: https://www.statista.com/statistics/687360/china-number-of-registered-adopti ons/.

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and new restrictions regarding physical/mental health, obesity etc.(see, further, at Sect. 19.5.3), this impeded any growth in the rate of domestic adoptions. Not until it was revised in 1999 did the Adoption Act permit applicants to be younger than 35 years of age and not be childless. Although the latter condition was the removed and the age limit dropped to 30 or older, the eligibility criteria continue to restrain domestic applicants. Also, there continues to be a hesitancy towards third party adoption among those who hold to traditional values: an aura of taboo has been associated with adopters and adoptees; the risk that bloodlines could be compromised by adopting an abandoned child of unknown family origins would, for some, seem to act as a cultural restraint. However, as the gender bias relates to the patrilineal bloodline, it is possible that in practice this operates to favour the third party adoption of girls. Another likely inhibiting factor is that the orphanages have become accustomed to, if not reliant upon, the income generated by ICAs and continue to discretely preference them over domestic applicants. Because domestic adoption does not attract the lucrative fee of several thousand US dollars per child transaction, there is little incentive for orphanages to facilitate adoption by Chinese citizens. On the contrary, some are buying babies from traffickers to meet the ICA demand. In 2008, an ABC News investigation found that some orphanages were offering $300 for baby girls and in May of that year Vietnamese authorities arrested traffickers who were buying or stealing babies and selling them to people in China.57 More recently, Leslie Wang has argued that by outsourcing the care of its unwanted children China is furthering a wider policy to attract foreign resources and secure closer ties with Western nations.58 Child Care As mentioned above, while the Adoption Law makes specific provision for the adoption of ‘children whose parents are unable to rear them due to unusual difficulties’, it fails to include abused or neglected children within that definition. Moreover, Article 11 makes it clear that in any event ‘adoption of a child and the placing out of the child for the adoption shall both take place on a voluntary basis’. So, whether a child is in the care of the state for reasons of parental failure or for reasons of parental abuse in neither case will he or she be permitted to enter the adoption process without parental consent. This approach would seem to be related to a general absence of child protection laws that set welfare standards for family based child care, permit preventative state intervention for the purpose of safeguarding those standards, and require the removal of child victims of parental abuse or neglect. This legal lacuna operates to deny the possibility of any route whereby such children could enter the adoption process or, indeed, the child care system: neither the ‘child care system’ as 57 See, Manh Duong and Tho Phuoc, Thanh Nien Daily, ‘Burden of Birth: A middle-aged woman runs an underground trafficking network that pays pregnant women for newborns and resells them at high prices’, at: https://www.thanhniennews.com/404.aspx?aspxerrorpath=%2f2008%2fPages% 2f2008220135612035901.aspx. Also, see, Thanh Nien Daily, ‘Hanoi police arrests another infant trafficker’, February 20, 2008. 58 See, further, Wang, L., Outsourced Children: Orphanage Care and Adoption in Globalizing China, Stanford University Press, (2016).

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825

such nor ‘non-consensual adoption’ exist in China. However, the Ministry of Civil Affairs declared in its 2003 report that ‘adoption is seen as the best approach to enable the re-integration of orphaned and abandoned children into the family and community’,59 but again while parental absence is viewed as an acceptable basis for adoption, parental failure or parental abuse are clearly not. Children with Special Needs The Adoption Law, Article 8, as amended in 1998, facilitates the adoption of disabled children by removing some of the eligibility restrictions on adopters. However, the reality is that few children in China’s Waiting Children programme have much chance of being adopted domestically.60 There are simply too many factors militating against this; not least being the burden of additional health care costs and, equally important, the stigma associated with disability in Chinese society. They are unable to compete with the attractions of a healthy ‘normal’ child for the attention of domestic adopters. Intercountry adoption, therefore, is the best option for orphaned or abandoned Chinese children with special needs. In China this definition accommodates a wide spectrum of health care needs: from a cleft palate (or other minor disfigurement readily remedied by surgery) to profound intellectual disability. In 2005, 9% of children adopted from China were defined as having special needs. By 2009 the number had jumped to 49%, according to the CCCWA, and reached 50–60% by 2020. Arguably, the sudden and disproportionate rise in the numbers of ICA special needs adoptees can only be rationally explained by a change in government policy: a strategy of outsourcing the need for medical treatment with attendant health care costs would seem to be well underway. Intercountry Although this country is invariably associated with intercountry adoption, unsurprisingly given the sheer volume of children involved61 and the duration of its record as a sending country, a sense of perspective is needed. Domestic adoptions have always outnumbered those flowing along the intercountry route. Johnson reports that for the 1990s “the number of domestic adoptions from orphanages certainly exceeded the number of international adoptions at the beginning of the decade”.62 By 2001, as the U.N. reported, while China had 8644 intercountry adoptions, these constituted only 19% of total adoptions for that year.63 59 See,

the Ministry of Civil Affairs, People’s Republic of China, China Country Report, at p. 54. further, Rafferty, E., ‘Chinese Special Needs Adoption, Demand, and the Global Politics of Disability’, Disability Studies Quarterly, Vol. 39, Issue 2, (2019), at: https://dsq-sds.org/article/ view/6662/5249. 61 For example, in the period 1999–2016 there were 267,000 ICAs from China, of which 78,257 were children adopted by Americans. 62 See, Johnson, K., ‘Politics of International and Domestic Adoption in China’, Law & Society Review, Vol. 36, No. 2, 2002 at p. 387. 63 See, U.N. Dept of Economic and Social Affairs, ‘Child Adoption: Trends and Policies’, 2009, at p. 214. 60 See,

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Intercountry adoptions from China began in 1992 and grew very rapidly. Between 1996 and 2016 some 267,000 Chinese children were adopted overseas.64 As Johnson has noted65 : Since 1994 China has been among the top three ‘sending countries’ and from 2000 to 2010 it has been the world’s number one source of intercountry adoptees in all but one year. In 2005, the peak year of ICA from China and near peak for all ICA, China contributed 14,000 of the 44,000 children adopted internationally, and 8,000 of the roughly 22,700 intercountry adoptions to the USA.

The vast majority of children came from the provinces of Guangdong,66 Jiangxi, Hunan, Guangxi, Anhui, Hubei, Chongqing and Guangxi and were sent to 17 different countries.67 However, since 2005, when China signed the Hague Convention, the annual number of intercountry adoptions has fallen dramatically: reaching 3311 in 2012; of which some 75% could be classified as special needs, as the children were older or had known medical issues. The proportion aged five and older rose from 1.4% in 2005 to 10.9% in 2009; and a higher proportion were male (5% in 2005 vs. 26% in 2009) though this has since been reversed (currently girls outnumber boys, 86% and 14% respectively).68 This radical change was due in large part to the Hague requirements to give first preference to domestic adoption and to confirm orphan status before releasing children for intercountry adoption; it was also a consequence of the surge in domestic demand for the same type of child—young and healthy— sought by intercountry adopters. In total, some 110,000 Chinese children have found homes in other countries, with U.S. citizens adopting more than 70%69 : in 2005, some 7700, but only 2231 in 2016. The one child policy, in combination with a Chinese preference for male children, contributed to the large numbers of Chinese girls adopted by Americans70 and introduced a distinct gender bias in intercountry adoption: only one in every three ICA Chinese children are male. The intercountry adoption process from China is now shrinking, becoming timeconsuming, arduous and expensive with a six-year waiting list. It has also become very largely a process for channeling older or special needs children towards overseas care. The new rules introduced by the CCCWA, which took effect on the 1st May 2007, have restricted the eligibility of adopters and increased the bureaucracy of 64 See,

further, at: https://internationaladoption.org/6-statistics-china-international-adoption/ K., ‘Challenging the Discourse of Intercountry Adoption: Perspectives from Rural China’, in Gibbons. 66 Guangdong Province, alone, had forty-five orphanages that submitted children for intercountry adoption between 2011 and 2013, and sent a total of 936 children for adoption in 2012. 67 See, Selman, P., ‘Intercountry Adoption in the New Millenium’, and ‘The Movement of Children for Transnational Adoption: Tables for Paper Presented at The Globalization of Motherhood Symposium,’ Institute of Commonwealth Studies, London, 14–16 October 2008. 68 See, generally, at: https://www.statista.com/statistics/687360/china-number-of-registered-adopti ons/. 69 See, AICAN (Australian Intercountry Adoption Network) Intercountry Adoption Statistics—by country of origin—at: https://www.aican.org/statistics.php?region=0&type=birth. 70 See, further, Wang, L.K., Outsourced Children: Orphanage Care And Adoption In Globalizing China, Stanford, Stanford University Press, (2016). 65 See, Johnson,

19.2 Background

827

the process. Many previously eligible applicants suddenly became ineligible due to restrictions that now eliminate: most single applicants; same sex couples; couples only recently married or divorced more than once; and any persons with health or social issues (see, further, at Sect. 19.5.3). The build-up of such constraints has undoubtedly been a significant contributory factor to the 86% decline in Chinese ICAs since the 1990s.71 Currently, there are interesting tensions in China’s commitment to intercountry adoption. Because of the financial incentives involved, as well as an altruistic belief among many government officials and orphanage staff that ICA offers some of their children opportunities for a better life, orphanages will often discretely preference intercountry adopters. However, there is now a rising demand from domestic adopters, as the one-child policy was first relaxed then dispensed with, but rates of abortion and infertility continue to reduce the children available. At the same time a distinct policy emphasis has emerged on progressing China’s Waiting Child programme—which is primarily concerned with finding homes for children with special needs. Transracial According to the Fifth National Population Census of 2000, the population of China comprises 56 ethnic groups of which the overwhelming majority, at 91.59%, are of Han ethnicity. China, therefore, has had little opportunity to practice domestic transracial adoption. Indeed, there is little evidence of transracial adoption in its domestic adoption process. However, China in fact has a very strong association with transracial adoption: Chinese children together with those from Korea, have long been the subjects of intercountry adoption by Caucasians in the U.S. and Europe, and now undoubtedly constitute the largest proportion of all international transracial adoptions.

19.2.2.2

First Party Adoptions

While the absence of annual statistics prevents any identification of trends or meaningful analysis of how the policy restrictions on the number of children per family have impacted upon adoption practice, it is probable that this policy has stimulated some adoption of ‘over quota’ children by childless relatives. However, a snapshot provided by the 1992 National Survey on the Situation of Children revealed that adoption by relatives accounted for only 14% of all adoptions.72 Step-Parents Adoption by a step-father or step-mother is specifically facilitated in China under Article 14 of the Adoption Law. It is free from most constraints governing the eligibility of adopters. 71 See,

further, at: https://www.johnstonsarchive.net/policy/adoptionstatsintl.html. State Statistical Bureau, The 1992 National Survey Sample on the Situation of Children, Beijing, Legislation Publishing House, 1993, at p. 124. 72 See,

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Kinship As domestic adoption gathers momentum in China, a singular characteristic is the preference given by adopters to the adoption of a child to whom they are related, however distantly (gu Guoji, or ‘agnatic adoption’).73 The adoption of a relative raises no negative issues in terms of family bloodlines and indeed their strengthening may often be a motivating factor for kinship adoption.74 The cultural significance of kinship adoptions would seem to be recognized by Article 7 of the Adoption Law, as revised in 1998, which facilitates the ‘adoption of a child of a collateral relative by blood of the same generation and up to the third degree of kinship’. Nonetheless, Johnson’s study of over 1000 local domestic adoptions in the 1990s-early 2000s found that 60% of the total consisted of abandoned children, found or passed to the adopters by finders, with only a minority of the adoptions between relatives.75

19.3 Overview of Principles, Policy and Law The Adoption Law was initially restrictive. The legislative intent was, as Johnson explains above, to clamp down on domestic adoption in order to divert the flow of available children along the intercountry route. Adopters had to be childless, over the age of 35 and meet residency requirements if they were eligible to adopt any of the many thousands of abandoned children in China’s overcrowded orphanages. It was relaxed somewhat in 1998 when the upper age limit was reduced to 30 and the childless restriction was removed in order to encourage domestic adoption of orphaned, abandoned or disabled children. Zhong, in 2002, stated that the official goal was to place 8 children domestically for every intercountry adoption.76 Since then steps have been taken to progress this strategy. In May 2007 eligibility criteria were tightened to require adoptive couples to be: aged between 30 and 50; have assets totaling at least $80,000; and to have good health (including not being overweight) etc. In 2011 this was followed by quite stringent additional restrictions imposed upon intercountry adopters which greatly increased the waiting time for a child with a consequent sudden and radical reduction in the numbers of children adopted internationally.

73 Author

acknowledges advice from Weiguo Zhang on this matter (note to author, 3.11.2014). further, Cohen, M.L., Kinship, Contract, Community, and State: Anthropological Perspectives on China (Studies of the East Asian Institute, Columbia University), Stanford University Press, 2005. 75 See, Johnson, K., ‘Wanting a daughter, needing a son: Abandonment, adoption, and orphanage care in China’, Minneapolis, MN, Yeong & Yeong, 2004. 76 See, Zhong, J., ‘China Domestic Adoption’, at: https://www.chinesechildren.org/Newsletter% 5CWindow%20to%20China/WTC_03_2002.pdf. 74 See,

19.3 Overview of Principles, Policy and Law

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19.3.1 Adoption Principles and Policy While many of the official statements of principle and policy are familiar and reassuring to western observers, there remains some uncertainty as to the degree to which they translate into comensurate standards of practice.

19.3.1.1

Principles

There is little reference in Chinese adoption law and practice to the principles that are now long embedded in western legislation. The Welfare Interests of the Child Although China has ratified the International Convention on the Rights of the Child, there is little evidence that China’s domestic laws have been adjusted to reflect Convention principles and rights. References to the interests of the child in both the Law for the Protection of Minors and the Adoption Law are at best cursory with no suggestion that such interests attract a priority weighting nor that any advocacy or assertion of such rights would warrant specialist legal representation. Openness There is no culture of ‘openness’ in Chinese adoption law and practice. In fact, the Adoption Law, Article 22, specifically provides for the opposite—‘When the adopter and the person placing out the child for adoption wish to make a secret of the adoption, others shall respect their wish and shall not make a disclosure thereof’. It may also be the case that, for foreign adopters, part of the attraction of adopting from China lies in the fact that their adopted child will not have any ties with their family of origin: as only ‘ophans’ or ‘abandoned’ children are available for intercountry adoption, this precludes ongoing contact arrangements of any form. Siblings An interesting, and singular characteristic of the Chinese adoption process, is the official discouragement of adopting siblings as expressed in the Article 8 directive that ‘the adopter may adopt one child only, male or female’. Although this blunt statement is then qualified, the fact that it was seen necessary to assert it, so categorically, is a disquieting indicator of adoption viewed as a means of rationing the demands of adopters rather than as a response to the welfare needs of children though Leslie Wang comments this “was about state interest in reinforcing previous fertility regulations”.77

77 Note

to author (12.08.2020).

830

19.3.1.2

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Policy

Article 3 of the Adoption Law stipulates that ‘adoption shall not contravene laws and regulations on family planning’. This clause makes explicit the legislative (and political) intent that the government’s family planning programme is to provide the governing policy framework for adoption in China. It perhaps also explains why there is no mention of adopted children in the Population and Family Planning Law of the People’s Republic of China 2001 nor in the Measures for Administration of Collection of Social Maintenance Fees 2002: the legislative intent was to make it obvious that adoption was not a consideration in that context. In the past, for those localities with sufficient economic conditions and resources, the main child care strategy was to establish social welfare institutional facilities providing long-term accommodation. More recently, as explained by the Ministry of Civil Affairs in its 2003 report, ‘adoption is now seen as the best option for children’.78 However, as Johnson explains, this approach has always remained subservient to the government’s overriding family planning priority79 : Legal requirements that adopters be over 35 and childless severely limited the number of families who could legally adopt children in the 1990s … restrictions on adoption are the result of birth planning efforts to prevent adoption from being used as a loophole whereby birth parents adopt out daughters in order to try again for a son. The result of this policy has been to increase abandonment while decreasing the number of legally eligible adoptive families in China. International adoption has helped enlarge the pool of potential adopters without disturbing birth planning priorities.

19.3.1.3

Adoption Alternatives

The main, and possibly the only, alternative to adoption is the guardianship provided by Social Welfare Institutes. Apart from reliance upon foster homes and institutional care, China has also developed sponsorship programmes whereby ‘individuals, families or work units (companies etc.) may sponsor a child or children, and pay an amount per child to the welfare home’.80 This scheme allows for the possible ‘befriending’ of individual children and the building of personal links between families in the community and children in institutional care: links which may develop into formal foster care arrangements. The guardianship of the children concerned always remains vested in the Social Welfare Institute. The Street Children Protection Centres also provide a significant alternative resource. These centres prioritise the reunification of children with their families and formulate long term care initiatives, with western non-governmental organisations such as Save the Children, for those who cannot return home. 78 See,

the Ministry of Civil Affairs, People’s Republic of China, China Country Report, op cit, at p. 52. 79 See, Johnson, K., ‘Politics of International and Domestic Adoption in China’, Law & Society Review, Vol. 36, No. 2, 2002, pp. 379–396. 80 See, the Ministry of Civil Affairs, People’s Republic of China, China Country Report, op cit, at p. 55.

19.3 Overview of Principles, Policy and Law

831

19.3.2 Contemporary Adoption Related Legislation China has a great many national laws relating to children. These include: the Law for the Protection of Minors; the Law on the Prevention of Juvenile Delinquency; Provisions for the Management of Social Welfare Institutes; Provisions for the Further Development of Welfare for Orphans; and the Adoption Law. The latter—the Adoption Law of the People’s Republic of China—evolved from the initial legislative attempt to regulate domestic adoption in 1981. It came into effect on 1 April 1992,81 was amended in 1999,82 and has since governed all adoptions in China. On 10 November 1993, China promulgated the Implementation Measures on the Adoption of Children by Foreigners. In addition to adhering to the requirements under the Adoption Law, foreigners must follow the procedures stated in the Implementation Measures.

19.3.2.1

The Guarantee of Adopted Children’s Rights and Interests by Intensive Protection Measures, 2011

This law tightens the requirements in relation to matters such as pre-adoption training, home study reports, post-adoption monitoring of adoptee and adoption agency records. It provides opportunities for strengthening adoptees’ cultural links with China.

19.3.2.2

Measures for Registration of Adoption of Children by Foreigners in the People’s Republic of China, 1999

These measures, for application in conjunction with the Adoption Law, outline the procedures and regulate the practice of adopting Chinese children by foreigners. It details the evidential requirements to be submitted at each stage of the process, Article 4, for example, specifies the documentation that must accompany the adopter’s application. Article 14 states that ‘Chinese adoption organizations are non-profit-making public welfare institutions which provide service to foreign adopters and may charge service fees’ but adds that ‘for the purpose of rearing abandoned infants and children living in social welfare institutions, the State encourages foreign adopters and foreign adoption organizations to make donation to social welfare institutions’.

81 Adopted

at the 23rd Meeting of the Standing Committee of the Seventh National People’s Congress on 29th December 1991, promulgated by Order No 54 of the President of the Peoples’s Republic of China on 29th December 1991, effective 1st April 1992. 82 Adopted at the 23rd Meeting of the Standing Committee of the Seventh National People’s Congress on 29th December 1991, and amended in accordance with the ‘Decision on Revising the Adoption Law of the People’s Republic of China’ at the Fifth Session of the Standing Committee of the 9th National People’s Congress on 4th November 1998, effective 1st April 1998.

832

19.3.2.3

19 China

The Adoption Law of the People’s Republic of China, 1991

As amended in 1998, this is the formative statute governing the law and practice and outlining the process of adoption in China. Article 2 declares that ‘Adoption shall be in the interest of the upbringing and growth of adopted minors and in the protection of the legitimate rights of the adoptee and the adopter, in conformity with the principle of equality and voluntariness, and not in contravention of social morality’. The 1998 amendments relaxed adopter eligibility criteria: the age limit was reduced from 35 to 30 years of age or older; and the childless condition was removed.

19.3.2.4

Law of the People’s Republic of China on the Protection of Minors, 1991

As revised in 2006 and 2012, this Law broadly sketches the protective duties owed to minors by adults, including their parents, in a variety of different settings. These include family protection duties: for exmple, Article 10 requires parents or other guardians to ‘create a good and harmonious family environment’, to ‘perform the duties of guardianship’ and it prohibits violence against minors and the abuse or abandonment of minors.

19.3.3 International Law China ratified the U.N. Convention on the Rights of the Child in 1991 and the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoptions on September 16th 2005. It began implementation of the latter on 1 January 2006.

19.4 Regulating the Adoption Process The China Center for Children’s Welfare and Adoption (CCCWA) is the government body with responsibility for regulating the adoption process. The Adoption Law 1992, as amended in 1998, provides the authority and identifies the matters for CCCWA regulation. The emphasis on ensuring the consensual nature of adoption is plainly demonstrated by the directive in the Adoption Law, Article 11, that the ‘adoption of a child … shall take place on a voluntary basis on both sides … where the adoption involves a minor above the age of 10 full years, the consent of the person adopted shall be obtained’.

19.4 Regulating the Adoption Process

833

19.4.1 Length and Breadth of Process From a western perspective, the adoption process in China appears simultaneously both poorly regulated and yet overly bureaucratic. In particular, the tier of professionally qualified social workers with specialist training in matters of ‘attachment’ and ‘bonding’, etc.—accustomed to mediating between birth families, foster care and institutional facilities in the global north—is virtually absent in China. Nor is there any substantive equivalent to the para-legals—such as guardian-ad-litems and court officers—who are trained and experienced to independently ascertain a child’s best interests and to advocate on behalf of their rights. Singularly, the adoption process is exclusively administrative in character with no procedures for judicial involvement.

19.4.2 Role of Adoption Agencies and Other Administrative Bodies The formal adoption system is centralised under the management of the CCCWA: the roles and functions of various domestic and international agencies are co-ordinated and monitored by it. However, the span of CCCWA control is uncertain. While standards of practice, in the major Social Welfare Institutes dealing with intercountry adoption and the work of related domestic and international agencies, would seem well regulated, it is unlikey that the reach of the CCCWA extends to scrutiny of the numerous smaller orphanages in rural areas that can act as ‘feeder’ units to the larger facilities. Moreover, intercountry adoption fees have brought a good deal of independence for the main SWIs and this may contribute to the lack of a prevailing uniform code of standard practice and developmental strategy across all such facilities.

19.4.2.1

Adoption Agencies

For many years a number of foreign non-government organisations have been working in the general field of child care, some with a brief for adoption and/or foster care. The U.K. based Care for Children, for example, is developing nationwide foster care programmes and operates in partnership with Chinese agencies.83 Other international charities such as Half the Sky, Love Without Boundaries, and Our Chinese Daughters Foundation work closely with the CCCWA to further develop standards of practice. There is no private or commercial dimension to domestic adoption in China. The CCCWA maintains a register of adoption agencies and will only accept adoption applications that are channeled through one of those agencies. While there are no 83 See,

Glover, R. ‘China’ in Colton, M. and Williams, M. (eds), Global Perspectives on Foster Family Care, Russell House Publishing, Lyme Regis, 2006.

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registered domestic Chinese agencies that operate on a for-profit basis, some international agencies based in the U.S. or Europe and engaged in arranging adoptions from China, do so.

19.4.2.2

Social Welfare Institutes (SWI)

These are a complex range of facilities providing care for a range of children and adults with social and health care needs. Established by government or by local collectives, these facilities include orphanages which provide care and guardianship and arrange appropriate education for orphans and abandoned children throughout their childhood. They also provide specialist health and care services for children with more profound physical and intellectual disabilities. Some of the children are placed in the homes of local families under the supervision of institute staff, while others are adopted by domestic or intercountry adopters. Article 5(2) of the Adoption Law expressly permits the Institutes to place children for adoption. At the turn of the century, international observers expressed serious concerns about the standards of care in some of these facilities, such as the Shanghai Children’s Welfare Institute.84 The CCCWA has declared four missions in relation the Social Welfare Institutes: to conduct studies and make recommendations concerning child-raising programs; to promulgate standards for implementation; to manage the training of care-providers; and to implement advanced methods and programs in child-rearing.

19.4.3 Role of the Determining Body The adoption process in China is administrative rather than judicial. Essentially, this is because there are no determinative legal issues as all available children are held to be either orphans or abandoned and therefore, by definition, there is no need to seek parental consents: all legal rights in respect of such children are viewed as vested in the state; and, as a matter of government policy, adoption is the pre-determined option judged to be most compatible with their welfare. The decision to approve or reject an adoption application is made by the CCCWA. It is notable that despite the fact that many tens of thousands of cases have been determined by the CCWA over many years, none would seem to have given rise to legal issues that required the Supreme Court to resolve. This is in marked contrast to the experience of other countries, most of which have had to process only a fraction of the cases determined in China.

84 See,

further, Munro, R. and Rigsby, J., Death by Default: A Policy of Fatal Neglect in China’s State Orphanages, Human Rights Watch, 1996.

19.4 Regulating the Adoption Process

19.4.3.1

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The China Center for Children’s Welfare and Adoption (CCCWA)

This agency, established as the China Centre of Adoption Affairs (CCAA) on 24th June, 1996 by China’s Ministry of Civil Affairs, consisted of the following eight departments: Administrative Office; Adopter’s Eligibility Review Department; Child’s Intercountry Placement Department; Domestic Adoption Department; ChildRaising Department; Archives Management Department; Information and Technology Department; Finance Department; and a General Affairs Department. From 2005 it held responsibility for overseeing foster care, domestic adoption and intercountry adoption practice. It was responsible for the welfare of children in Social Welfare Institutes (or orphanages) that were available both for domestic adoption and for intercountry adoption. In 2011 the CCAA was reorganized into the CCCWA (China Center for Children’s Welfare and Adoption) to meet the developmental needs of child welfare and with added related functions. As explained on its website: CCCWA was re-organised into a total of 12 departments with responsibility for foreign adoptions and tasks related to child welfare.85 As the Central Authority responsible for all intercountry adoptions, it processes all such applications which must be submitted through an adoption agency registered with it.

19.4.4 The Registration Office The hukou system, or family registration system, is the equivalent to the registration of births, marriages, deaths etc. maintained under the oversight of a Registrar General in common law countries. It provides a record of household registration as required by law which usually includes the births, deaths, marriages, divorces, and moves, of all family members. One aspect of the hukou system is the requirement to register any formally completed adoption. The system does not register the high number of de facto or customary adoptions which may total two or three times the number registered. Initially used by government as an instrument to monitor minority groups and facilitate population control,86 hukou registration distinguished between rural and urban families; provided the means for differentiating the distribution of preferential public service entitlements; and thereby contributed to policies of identifying community needs, regulating subversive groups and controlling internal migration. 85 See,

further, at: http://cccwaen.mca.gov.cn/article/AboutUs/a/201406/20140600656870.shtml.

86 See, for example: Chan, K.W. and Zhang, L., ‘The Hukou System and Rural–Urban Migration in

China: Processes and Changes’, 160 China Quarterly, 1999, pp. 818–822; and Zhang, L., ‘Spatiality and Urban Citizenship in Late Socialist China’, 14(2) Public Culture, Vol. 14, Issue 2, 2002, pp. 311– 315.

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It does not have the characteristics of a civil registration process, open to the public and used primarily to detect trends in changing patterns of social need that typify its western counterparts. It is unlikely that the recent phase of hukou reform will bring the two models much closer.87 The social status that accompanies hokou registration has important implications for adoption. As it provides the basis for public service entitlements, only families and children registered as living in an area can access the government services for that locality. An exception is provided for children without any known family for whom guardianship responsibility has been assumed by a Social Welfare Institute. For some this has resulted in poverty stricken or migrant parents abandoning children (particularly those who are disabled and in need of expensive services) to the care of institutes as a means of ensuring their access to services such as health care and education. It also leads to many de facto adoptees being passed off as birth children by their adopters in order to acquire hukou registration.

19.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria The preliminary screening of the parties is probably the most carefully managed aspect of China’s adoption process. However, it must also be borne in mind that countless customary and/or illegal adoptions continue to bypass formal processes.

19.5.1 The Child The 1991 Adoption Law, Article 4, states that a child may be eligible for adoption if under the age of 14 and is either: an orphan; an abandoned infant or child whose parents cannot be ascertained or found; or a child whose parents are unable to rear them due to unusual difficulties. Article 8 adds that ‘orphans, disabled children or abandoned infants and children, who are raised in the social welfare institutes, and whose biological parents can not be ascertained or found, may be adopted irrespective of the restrictions that the adopter shall be childless and adopt one child only’.

19.5.1.1

The Welfare Threshold

In China, the welfare interests of the child do not constitute a formal legal criterion for his or her adoption. Despite the declaration by the Ministry of Civil Affairs that ‘in 87 See,

Foreign & Commonwealth Office (UK government), ‘Hukou Reform: Central government sets out a vision’, August 2014, at: https://www.gov.uk/government/publications/hukou-reform-cen tral-government-sets-out-a-vision-august-2014.

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both domestic and international adoption, the principle of “best interests of the child” is applied’, there is little evidence of how the principle is interpreted, or of its role and functions, or of the weighting to be ascribed to it. In legal terms it would seem to be little more than a cursory acknowledgement that adoption should be welfare compatible. As stated in the Adoption Law of the People’s Republic of China, Article 2: Adoption shall be in the interest of the upbringing and growth of adopted minors and in the protection of the legitimate rights of the adoptee and the adopter, in conformity with the principle of equality and voluntariness, and not in contravention of social morality.

However, as a signatory State to both the International Convention on the Rights of the Child and the Hague Convention, it may be assumed that adoption practice in China complies with the Convention statements on the welfare interests of the child.

19.5.2 The Birth Parent/s It is a singular characteristic of China’s adoption process that for third party adoptions, whether domestic or intercountry, the birth parents have no role to play. Because only children without parents are eligible for adoption by a non-relative, the birth parents are defined out of the process. In domestic first party adoptions, the consensual role of birth parents is not dissimilar to that in other countries.

19.5.2.1

Failed Parental Rehabilitation

Chinese law, with its underlying Confucian values, is respectful of the inherent rights held to be integral to the role of parent, or at least integral to that of the patriarch as head of the family, and is consequently restrained in the extent to which it authorises coercive state intervention (reproductive rights being a notable exception). This perhaps helps to explain the absence of any Chinese equivalent to the national child protection systems that have long been established in the US, the UK and elsewhere in the western world. The absence of any such system for detecting parental failure accounts also for the absence of associated remedial programmes.

19.5.3 The Adopters: Eligibility and Suitability Criteria Article 6 of the Adoption Law 1991, as amended in 1998, broadly states that the prospective adopters must be: capable of rearing and educating the adoptee; have no illness which is deemed medically inappropriate for adoption; and must have reached the age of 30. Articles 8 and 9 add, respectively, that: the adopter may adopt one child only, male or female; and where a male person without spouse adopts a

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female child, the age difference between the adopter and adoptee shall be no less than 40 years. Article 10 imposes the condition that ‘where a person with spouse adopts a child, the husband and wife must adopt the child in concert’. There is no residency requirement. New regulations were issued in relation to applications received after May 1, 2007 requiring applicants to have been married for at least two years, be high school graduates, and with at least $80,000 worth of assets. They must not be deformed, mentally ill, blind in either eye, have a body mass index over thirty-nine, a petty crime record or have had alcohol dependency problems, or have health issues such as cancer in their family. Such criteria could be interpreted as less of a welfare response to the needs of adoptees and more of a rationing response to ICA demand.

19.5.3.1

Domestic Adopters

The above stated Article 6 criteria apply to domestic adopters but are generally interpreted more flexibly than in relation to prospective ICA applicants. Third Party Adopters Such prospective domestic adopters are required to register with a local orphanage of their choice and indicate the age/gender etc. of the child they wish to adopt. The orphanage will make a tentative match and send details including photographs to the applicants who, if they accept, are then free to adopt the child after producing ID and health certificates. All parties then enter a probationary period of one month. First Party Adopters Article 7 of the Adoption Law states that ‘the adoption of a child belonging to a collateral relative by blood of the same generation and up to the third degree of kinship’ is to be unconstrained in certain respects. Such adoptions are to be free of the restrictions identified in Articles 4, 5 and 9 (see above), as well as the restriction to the adoption of a minor under the age of 14. Further, as regards adoption by a Chinese citizen resident overseas, the same Article declares that ‘in adopting a child belonging to a collateral relative by blood of the same generation and up to the third degree of kinship, may even be not subject to the adopter childless status’. Again, the kinship preference is evident also in Article 18 which declares that ‘where a spouse places out a minor child for adoption after the death of the other spouse, the parents of the deceased shall have the priority in rearing the child’.

19.5.3.2

Intercountry Adopters

In addition to the above general eligibility/suitability requirements of prospective adopters, Article 21 of the Adoption Law outlines the following procedure to be followed by intercountry adopters:

19.5 Threshold for Entering the Adoption Process: Eligibility and …

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When a foreigner adopts a child in the People’s Republic of China, his or her adoption shall be examined and approved by the responsible agency of the adopter’s resident country in accordance with the country’s law. The adopter shall submit papers certifying such particulars of the adopter as age, marital status, profession, property, health, and whether subjected once to criminal punishment, which are provided by the authoritative agency of his or her resident country. Such certifying papers shall be authenticated by the department of foreign affairs of the country of his or her residence, agency authorized by the department of foreign affairs and by the Embassy or Consulate of the People’s Republic of China in the country concerned. The adopter shall conclude a written agreement with the person placing out the child for adoption and register in person with the department of civil affairs of the people’s government at the provincial level.

This broad outline has been supplemented by the Measures for Registration of Adoption of Children by Foreigners in the People’s Republic of China (see, further, at Sect. 19.3.2.1) and by the more specific and restrictive specifications of eligibility criteria for intercountry adopters issued in 2007, 2011 and 2015. The CCCWA requirements, to be appropriately certified, are now as follows Couples must be heterosexual and married: for a first marriage, the couple must be married over 2 years; if either spouse has 1-2 divorces, the current marriage needs to be a minimum of 5 years; where one or both spouses have 3 or more divorces they are ineligible. The married couple must be aged 30 to 50 years old: 30 to 40 for a child 6 to 18 months old; 40 to 45 for a child 12 to 36 months old; 45 to 50 for a child of 36 months; or 30 to 55 years of age if applying for a special needs child. Both parents must have received education at or above high school or vocational skill training. The following prohibitive criteria now apply: diagnosed with major depression or any other severe mental health concerns; current diagnosis of depression or anxiety or currently on medication for depression or anxiety (must be treatment and medication free for over 2 years, no history of alcoholism within the last 10 years); history of cancer; blindness or deafness; any infectious disease or disease which requires long-term treatment and which affects life expectancy (malignant tumors, epilepsy. lupus, nephrosis, etc); BMI of 40 or more; and any major surgery or transplant within the last 10 years, or use a wheelchair or mobility aid or have missing limbs. The applicants must show a positive net worth (assets vs. liabilities) of at least $80,000.00 with an income earning of over $10,000 per person in the household, including the adopted child. Adoptive parents must demonstrate an annual minimum combined income of $30,000. Families are not eligible to adopt if any of the following apply: current warrants or currently on probation; history of drug use or charges; any arrest for a violent crime (e.g. assault); history of domestic violence, sex abuse, abandonment or abuse of children, even if not arrested or incriminated; any felonies. There may be some flexibility where the parent has less than three criminal records of slight severity with no serious outcomes with ten years passed or less than 5 traffic law violations with no severe outcomes. The CCCWA limits the number of children in the household to a maximum of five. The following couples may adopt: couples with less than 5 children under 18 years old living in the household; couples with adult children (not living in the home); couples with more than 4 children in the family, but not all living at home. If there are more than 4 children living in the household, the applicants are restricted to special needs children. An applicant who has recently given birth must wait until the child is 12 months old. Applicants with religious beliefs that prohibit any kind of medical treatment, including blood transfusions, for the child, will not be eligible to adopt.

The mandatory home study must be performed by a licensed social worker employed by an adoption agency registered with the CCCWA.

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Single and Same Sex Adopters

China used to be the most popular country for single intercountry adopters with many children placed with single women.88 However, in 2006 China introduced new rules requiring adopters to be a heterosexual couple married for at least two years and in 2012, for the avoidance of all doubt, the CCCWA prohibited single adopters; a stricture that was relaxed in relation to prospective adopters of special needs children.89 The prohibition was specifically targeted at eliminating applications from single women in same-sex relationships who had accounted for up to a third of intercountry adoptions to the U.S. in the late 1990s.90 There is now a firm policy in place to reject applications from same sex couples, of either gender. Single Female Applicants Since March 15, 2011, the CCCWA has permitted ICA applications from single females provided they are applying for a special needs child and can fulfill the following criteria: are at least 30-years-old and under the age of 50 (if over the age of 50, the age difference between the child to be adopted and the applicant must be no more than 45 years); can produce certification of being single and nonhomosexual, or if divorced showing a divorce certificates, and if widowed showing a death certificate for the former spouse; are healthy (both physically and mentally), law abiding (with no criminal records) and of good moral conduct; with an annual income of at least $10,000 per family member (including prospective adoptee) and with net family assets of at least $100,000; can provide medical insurance for the special needs child; with sufficient experience in child care or in related fields to show they can successfully care for a special needs child; if there are other children in the home, that no more than two are under the age of 18 and the youngest is at least 6 years-old; can explain their motivation for adopting a special needs child, their reason for being single, their attitude towards marriage and can show how they plan to provide male role models for the child; and can demonstrate a willingness to attend training for international adoptions and special needs children and can provide a nurturing and rehabilitation plan that includes an appropriate support system.

19.6 Pre-placement Counselling There is no formal requirement in Chinese law that any of the parties to an adoption should receive pre-placement counselling. That does not necessarily mean that counselling will not be offered: it will certainly form part of the application process 88 See, Selman, P., ‘From Bucharest to Beijing: Changes in Countries Sending Children for International Adoption 1990–2006’, in Wrobel, G. and Neil, E. (eds), International Advances in Adoption Research for Practice, John Wiley, London, 2009. 89 See, Wang, L.K., Outsourced Children: Orphanage Care And Adoption In Globalizing China, Stanford, Stanford University Press, (2016). 90 Ibid., at p. 59.

19.6 Pre-placement Counselling

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in intercountry adoption; and most probably will occur, to some degree, in relation to third party domestic adoption.

19.7 Placement Rights and Responsibilities The relative priorities of China’s family planning policy and adoption law are starkly evident in the Adoption Law, Article 19, proclamation that ‘the parents of a child adopted by others may not bear any more child in violation of the regulations on family planning on the ground of having placed out their child for adoption’.

19.7.1 Authority to Place The Adoption Law of the People’s Republic of China, Article 5, declares that the following citizens or institutions are entitled to place a child for adoption: the guardians of an orphan; social welfare institutions; and ‘parents unable to rear their children due to unusual difficulties’. In the latter case, as in all other circumstances, Article 5 is subject to the Article 11 directive that the ‘adoption of a child and the placing out of the child for the adoption shall both take place on a voluntary basis’.

19.7.1.1

Placement by Birth Parent

As the above Article 5 makes clear, a birth parent is among those legally entitled to place a child for adoption. However, it is unclear how this provision is interpreted and exercised; it may be that it is confined to placements with first party or other relatives. In relation to third party placements, whether domestic or intercountry, the fact that the children available are either orphaned or abandoned means that birth parents no longer have any legal rights over their child and thus are not in a position to make or consent to adoption placements. In a provision which addresses parental consent and gives singular recognition to parental discretion, Article 10 states: ‘where the parents intend to place out their child for adoption, they must act in concert. If one parent cannot be ascertained or found, the other parent may place out the child for adoption alone’. Clearly, this right to place—which may be mediated by orphanage directors or others—could give rise to breaches of Art 29 of the Hague Convention which prohibits direct contact between birth parents (or a child’s guardian) and prospective adopters before professional assessments are concluded to verify the status of the child as legally adoptable and the prospective adopters as eligible and suitable.

842

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Placement by Accredited Body

In domestic adoption, the placement is consensual and is made by the local orphanage on a ‘one-month probationary period’ basis. Under Article 12: ‘if the parents of a minor are both persons without full civil capacity, the guardian(s) of the minor may not place out him (her) for adoption, except when the parents may do serious harm to the minor’. The child protection caveat clearly licenses the appropriate state authority to act unilaterally in placing a child at risk of abuse or neglect for adoption. The placement process for an intercountry adoption must take place in China but the monitoring of that placement takes place in the adopters’ country after adoption. Once the CCCWA has approved an application and completed the matching process, it then makes a formal offer for a specific child which, if accepted, leads to the adopters travelling to China to receive the child. Then, following completion of medical, emigration requirements etc., the adopters are free to leave China and take their child home. Subsequently, the CCCWA requires social work reports to confirm that the child and the placement are developing satisfactorily. Foster Placement For many years it has been standard practice for Social Welfare Institutes to place some children in foster care under the direct supervision of SWI staff. In certain circumstances where the foster parents meet the eligibility criteria then, with the permission of the Institute, they may later adopt that orphaned or abandoned foster child.

19.7.2 Placement Supervision Domestic adoption procedures allow for a one-month probationary period but not for placement supervision. However, as the placement is made by the orphanage director in the exercise of his or her guardianship authority, it is probable that the director will undertake such visits as are necessary to ensure the care and safety of the child. As regards intercountry adoptions, the regulatory process focuses on postadoption placement supervision to ensure that the matching and subsequent family assimilation of the child are satisfactory. The requirements of the Guarantee of Adopted Children’s Rights and Interests by Intensive Protection Measures, introduced in April 2011, imposed new duties upon the CCCWA. These include requirements that the agency intensifies its post-placement work: the time for submitting post-placement reports is extended; the content of the reports must address specified areas of concern; and the frequency of reporting is increased.

19.8 The Hearing

843

19.8 The Hearing As the legal adoption process in China is not adjudicative, it does not require a formal ‘hearing’ as such. The resulting lack of any associated case law is a feature of adoption in this country.

19.8.1 Where Consent Is Available Chinese adoption is unequivocally consensual. As stated in Article 11 of the Adoption Law, ‘adoption of a child and the placing out of the child for the adoption shall both take place on a voluntary basis’. The same provision establishes that the consent of the child concerned, if of a discerning age, is a prerequisite for their adoption: ‘where the adoption involves a minor aged 10 or more, the consent of the adoptee shall be obtained’. In practice, all parental rights and responsibilities in respect of an abandoned child are legally vested in the state (the Social Welfare Institute or orphanage) which greatly simplifies the process of obtaining the necessary consents. Step-adoptions in particular are treated favourably. Under Article 14, ‘a step-father or step-mother may, with the consent of the parents of the step-son or step-daughter, adopt the step-son or step-daughter’, and that such an adoption may be free from the restrictions specified in Articles 4, 5 and 6 of the Adoption Law, as well as from the restrictions that the adoptee must be under the age of 14 and the adopter may adopt one child only.

19.8.2 Where Consent Is Not Available In almost all third party adoptions, whether domestic or intercountry, parental consent is unavailable and that of the orphanage director acting under the authority of his/her guardianship powers will be substituted for it. While there is provision in Chinese law for consent to be dispensed with in circumstances where ‘children whose parents are unable to rear them due to unusual difficulties’, this is rarely if ever availed of. Interestingly, as Article 12 of the Adoption Law makes clear, a parental lack of decision-making capacity—for mental health or other reasons—does not of itself justify dispensing with the need for that consent.

19.9 Thresholds for Exiting the Adoption Process Successful completion of an adoption process would seem to be entirely dependent upon applicant capacity to satisfy eligibility requirements. Once the matching stage is

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completed only applicant withdrawal can prevent an adoption. There is no counterpart to the professional input in western nations, designed to present an impartial analysis of what exactly constitutes the welfare interests of the particular child concerned, that can then influence the determination of whether the applicants and adoption are the best available means of securing that child’s future.

19.9.1 The Welfare Interests of the Child Domestic adoption applicants, at the end of a one-month probationary period, are entitled to sign an Adoption Agreement with the orphanage from which they received their child. Before doing so they will submit the usual certified documentation: certificate of marital status; medical certificates for each applicant; medical certificate of infertility if applicable; a certificate of good conduct from an appropriate body; verification of employment and salary; character references etc. There is little opportunity, let alone the resources, for any objective professional confirmation at that stage that the adoption satisfies the welfare test. This is quite different from the intercountry adoption process which does require evidence to confirm that the welfare interests of the child are being met—but such evidence is sought by monitoring the placement after the adoption has been finalised. Constraints Arguably, the many constraints on intercountry adopters successfully completing the adoption process have little direct relevance to the welfare interests of the children concerned. Some, such as those on same sex couples, or single persons, or those with a record of minor offences or of depression etc., would not be constraints on applicants in their country of origin because of a lack of any evidence that they have a bearing on child welfare.

19.9.1.1

The Paramountcy Principle

There is no evidence to suggest that the welfare principle is of paramount importance at the point when the adoption application is determined. The absence of provisions for nonconsensual adoption in circumstances of parental abuse itself indicates the low importance given to this factor relative to parental rights and prevailing social norms. Other indications include the statements that an adoption must conform with family planning laws and must not contravene social morality in Artices 2 and 3, respectively, of the Adoption Law.

19.9 Thresholds for Exiting the Adoption Process

19.9.1.2

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Voice of the Child

Notwithstanding the fact that the consent of a child aged 10 or more is a prerequisite for his or her adoption, the absence of any legal mechanism for providing advocacy on behalf of the child concerned at the determination of an adoption application, constitutes a failure to give adequate recognition and weighting to the welfare principle at that crucial juncture. This would seem to be non-compliant with Article 12 of the UN Convention on the Rights of the Child.

19.9.2 Representing the Child’s Welfare Interests While the director of the relevant orphanage, or such other guardian as may have been appointed, will invariably be present at the adoption hearing and their views will be sought and taken into account, such persons do not have locus standi to act as legal advocates on behalf of the child. The Chinese adoption process does not provide for legal representatives empowered and required to ascertain the welfare interests of the child concerned and to independently assert those interests during the course of the proceedings.

19.10 The Outcome of the Adoption Process Such is the extent of preliminary screening that most usually the outcome of an adoption process is the granting of the application though the process may, in the case of intercountry adoptions, take an inordinate length of time. It has become a distinguishing feature of intercountry adoption applications from this country that the process now routinely takes 6 or 7 years which must compromise the welfare interests of the children involved.

19.10.1 Adoption Order Article 15 of the Adoption Law declares that ‘the adoptive relationship comes into force on the date of its registration’.

19.10.1.1

Conditional Adoption Order

The above mentioned Article 15 gives permission for voluntary post-adoption conditions to accompany an adoption order. It states that ‘should the parties involved in

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the adoptive relationship wish to conclude an adoption agreement, a written agreement on adoption shall be concluded’. It adds ‘should the parties or one of the parties involved in the adoptive relationship wish that the adoption be notarized, the adoption shall be notarized’. Contact In third party adoptions, whether domestic or intercountry, post-adoption contact between an adopted child and members of their birth family is not an option as all adoptees are defined as not having parents or family. In first party adoptions, while there are no legal obligations to provide ongoing contact opportunities, the parties are free to make their own arrangements.

19.10.2 Alternative Orders The Adoption Law, Article 17, provides an alternative to adoption for applicants who are relatives or friends of the family. It states that ‘orphans or children whose parents are unable to rear them may be supported by relatives or friends of their parents’ and that ‘the adoptive relationship shall not apply to the relationship between the supporter and the supported’. Otherwise, the continued guardianship provided by the orphanage or an associated foster care arrangement is in practice the only alternative available to children for whom adoption is not possible.

19.11 The Effect of an Adoption Order The Adoption Law, Article 23, declares the legal effect of adoption to be that: As of the date of establishment of the adoptive relationship, the legal provisions governing the relationship between parents and children shall apply to the rights and duties in the relationship between adoptive parents and adopted children; the legal provisions governing the relationship between children and close relatives of their parents shall apply to the rights and duties in the relationship between adopted children and close relatives of the adoptive parents.

In short, an adoption in China corresponds to its traditional legal effect in the common law countries. There is no suggestion that a ‘simple’ form of adoption is envisaged: all parental rights and responsibilities are wholly and exclusively transferred from birth parents to the adopters.

19.11 The Effect of an Adoption Order

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19.11.1 The Child The traditional and main legal effect of an adoption order is as proclaimed in Article 23: ‘the rights and duties in the relationship between an adopted child and his or her parents and other close relatives shall terminate with the establishment of the adoptive relationship’. Article 24 adds that ‘an adopted child may adopt his or her adoptive father’s or adoptive mother’s surname, and may also retain his or her original surname, if so agreed through consultation between the parents concerned’. In relation to an intercountry adoption where China is a sending country it must be borne in mind that Chinese laws require all adopted children to depart China on Chinese passports.

19.11.1.1

Citizenship

As China has signed and ratified the Hague Convention it is obliged to ensure that ICA adoptees have security of nationality. This requirement is met by issuing every ICA child with a Chinese passport before he or she leaves China. It then falls to the adopters to secure their adoptee’s citizenship on return to their country of domicile. Domestic adoptees automatically acquire Chinese citizenship.

19.11.2 The Birth Parent/s That the legal effect of adoption is to absolutely and irrevocably terminate all links between the adopted child and his or her family of origin is emphatically stated in the Adoption Law, Article 22: The rights and duties in the relationship between an adopted child and his or her parents and other close relatives shall terminate with the establishment of the adoptive relationship.

19.11.3 The Adopters Domestic adopters, on signing the Adoption Agreement and having paid the orphanage fee, must then register the adoption at their local Ministry of Civil Affairs office. At that point they will need to produce certified documentation of their: marital status; ID and hukou registration; health; education; finances; place of residence; and Family Planning Certificate verifying their childlessness (the last requirement is not applicable if the adopter is adopting an abandoned child, or if the adopter is residing overseas). Registration confirms the legal status of the adoption. Intercountry adopters must then apply for immigration and will need to submit the following to the embassy: an approved sponsorship; an application form in the name of the child with photos; a copy of the child’s Chinese passport; a copy of

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the original adoption certificate and hukou registration for the child to be adopted; the adoptive parents’ hukou and ID cards; a letter from Danwei or Neighbourhood committee giving the adoptive parents’ marital situation, familial situation and an assessment of their capacity to raise and educate children; and an abandoned child certificate issued by the police department.

19.11.4 Dissolution of an Adoption Order Unlike the legal position in the U.K. and most other countries, an adoption in China is not irrevocable. The fundamentally consensual nature of adoption in this country is demonstrated by the unusual legal characteristic that it may be dissolved by mutual consent of the parties. While Article 26 declares that ‘no adopter may terminate the adoptive relationship before the adoptee comes of age’, it then adds ‘except when the adopter and the person having placed out the child for the adoption agree to terminate such relationship’. Further, in such circumstances, the child’s consent is required: ‘if the adopted child involved reaches the age of 10 or more, his or her consent shall be obtained’. Articles 26 and 27, respectively, provide that an adoption may also be terminated on grounds of fault or of a breakdown in relationships: Where an adopter fails to perform the duty of rearing the adoptee or commits maltreatment, abandonment, or other acts of encroachment upon the lawful rights of the minor adopted child, the person having placed out the child for adoption has the right to demand the termination of the adoptive relationship. Where the adopter and the person having placed out the child for adoption fail to reach an agreement thereon, a suit may be brought in a people’s court. Where the relationship between the adoptive parents and an adult adopted child deteriorates to such a degree that their living together in a same household becomes impossible, they may terminate their adoptive relationship by agreement. In the absence of an agreement, they may bring a suit in a people’s court.

Article 25 states that ‘any act of adoption ruled to be invalid by a people’s court shall be of no legal validity from the very start of the act’ and Article 29 states that on such an event the legal relationships between the parties shall revert to their pre-adoption status. Interestingly, and in keeping with the cultural expectation that children should care for and support their elderly parents, Article 30 requires that, in the event of an adoption being dissolved, an adult adopted child who has been reared by the adoptive parents should provide the latter with financial compensation in certain circumstances and indeed the birth parents may also be similarly liable.

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19.12 Post-adoption Support Services There is no Chinese counterpart to the forms of state provided post-adoption support services that western adopters have become accustomed to receiving.

19.12.1 Adoption Support Services In particular, not only is there no provision of financial support, but China imposes a considerable financial levy in respect of all third party adoptions whether domestic or intercountry. In relation to domestic adoption, on signing the Adoption Agreement, the adopters must pay a fee equivalent to the estimated care costs for the length of time the child has been in the orphanage. Intercountry adopters are now required to pay a flat fee or donation to the orphanage of $5000. In a reversal of the typical policy in western countries to provide post-adoption support to the parties involved, China places an onus on the adopters to submit evidence that they are managing satisfactorily, that the welfare of the child is being progressed and that his or her Chinese cultural identity is being nurtured. The CCCWA requires adopters to provide 6 post-adoption reports compiled by an accredited agency, together with photos, over a five year period from the date of adoption. However, all receiving nations do have in place a strong network of government and nongovernment agencies that provide support services specific to the needs of such adopters and their Chinese children. If, as seems to be the case, official policy now has an emphasis on placing special needs children for adoption—by both the domestic and intercountry routes— then, if domestic adopters are to be encouraged, as Zhong urged 12 years ago, ‘the government should also provide medical assistance, financial help, tax benefits and incentives to families who wish to adopt handicapped children’.91 Heritage Tours The CCCWA organizes ‘heritage tours’ whereby adoption agencies, adoptive families and adoptees are invited to visit China. These tours are intended to help children adopted via the intercountry route to understand and appreciate their cultural heritage by introducing them to China and their hometown and to explain the Chinese perspective on intercountry adoption.

91 See,

Zhong, J., ‘China Domestic Adoption’, at: https://www.chinesechildren.org/Newsletter% 5CWindow%20to%20China/WTC_03_2002.pdf.

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19.13 Information Disclosure, Tracing and Re-unification Services China would appear to have no equivalent to the information disclosure procedures and associated tracing and re-unification services that are now part of the postadoption landscape in most developed nations. As a large proportion of all adoptions, domestic and intercountry, are in respect of orphaned or abandoned children for whom no family history is available, the lack of such procedures and services is perhaps unsurprising. The Adoption Law, Article 22, specifically confers rights of privacy and anonymity upon birth parents and adopters: an adoptee’s post-adoption access to information is at the discretion of those two parties.

19.13.1 Information Disclosure Given that the main motivation for domestic adopters is to fill the gap caused by infertility issues—though undoubtedly there are some who adopt a second child after having their own offspring—the long-standing cultural and social stigma attached to infertility in China may help explain why there are no disclosure procedures: there would be resistance from adopters. Also for adoptees, the cultural expectation of lineage loyalty may well dissuade them from making enquiries that might yield information that could be compromising both for them and members of the wider family.

19.13.2 Registers The Adoption Law, Article 15, requires every adoption to be registered at the provincial Civil Affairs Bureau, while Article 16 directs that ‘the public security organ shall, in accordance with the relevant rules and regulations of the State, carry out registration of residence for the adoptee’. The Civil Affairs Bureau shall, prior to the registration, make an announcement in the adoption of abandoned infants and children whose biological parents cannot be ascertained or found. Apart from this requirement to register an adoption at the Civil Affairs Bureau and making the necessary adjustments to the relevant hokou registration documents, it is not apparent that there is any form of adoption register or registration process.

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19.13.3 Conditional Access There are no provisions, conditional or otherwise, for accessing identifying information. Article 22 of the Adoption Law states that ‘when the adopter and the person placing out the child for adoption wish to make a secret of the adoption, others shall respect their wish and shall not make a disclosure thereof’. This directive lends weight to the traditional ‘closed’ and private nature of adoption by making any disclosure of information a matter to be determined at the discretion of the birth parents and adopters; it is devoid of any suggestion that the adoptee might have information rights that should be considered.

19.13.4 Tracing and Re-unification Services While there is no Chinese equivalent to the tracing and re-unification services that have become so prevalent in western nations, it is noteworthy that in the context of intercountry adoption the CCCWA and relevant orphanages very willingly offer adoptees and adopters ongoing contact arrangements with pre-adoption carers. Moreover, both in China and in receiving countries, there are networks of NGOs that offer support services specifically for those engaged in Chinese adoptions.

19.14 Conclusion Considering the great differences in cultural context, it is surprising that official adoption in China bears such a close resemblance to the traditional common law model. Certainly there are important areas of dissimilarity—of which the focus on orphaned and abandoned children, the lack of a domestic cohort of legal and social work practitioners and the absence of a role for the judiciary are particularly significant. The fact that the consent of children aged 10 or more is a pre-requisite for their adoption is an interesting requirement that presents a challenge to the overtly human rights oriented countries in the developed western hemisphere.

Chapter 20

Russia

20.1 Introduction The Russian Federation of 85 federal subjects1 or ‘regions’ is emerging from a period of considerable political and socio-economic upheaval: the ending of the ‘cold war’; the collapse of the USSR; the arrival of glasnost, perestroika and capitalism. It is now struggling to meet the challenges of geography, demography and of changing cultural norms, to forge a modernised sense of national identity and to reposition itself as a global power. Insofar as adoption, being intimately woven into the fabric of any society, reflects contemporary social stresses, this is an interesting time to examine how and why adoption now functions as it does in Russia. This chapter is structured similarly to its predecessors. Firstly it considers the social context: the sources of pressure shaping the role of adoption. It identifies some singular emerging characteristics, explains the related framework of contemporary law and policy, before outlining the regulatory machinery of the adoption process. Secondly, it examines the process itself: from the threshold for entry to the threshold for exiting; with particular attention being given to the eligibility and suitability criteria applied to all parties, the significance of consents, the judicial options available and the outcome. It assesses the effects of adoption on the parties involved and focuses on differences between domestic and international adoption The chapter concludes by assessing the provisions for post-adoption support services, for monitoring the progress of ICA adoptees and for responding to adoptee needs for information disclosure, tracing and re-unification services.

1 The

administrative organisation of the Russian Federation is complicated: there is a considerable difference in the status of its consituent entities (republics, krais, oblasts); the 1993 Constitution recognises a total of 85 distinct entities.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_20

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20.2 Background Russia, with a 2020 population of almost 146.75 million,2 comprising over 100 different ethnic groups and many different languages, spread across nine different time zones, is the world’s largest country by land mass. It is probably a mistake to believe that it is feasible to present a coherent picture of the actual role and functions of adoption within what is, in effect, a federation of quite different societies; just the difference between urban and rural communities would render impossible any attempt to uniformly apply adoption law and practice and ensure an equitable distribution of related resources.

20.2.1 The Social Context Giving Rise to Adoption The population of Russia is shrinking. Since 1991 it has fallen by more than five million—a demographic crisis aggravated by the socio-economic trauma of the breakup of the Soviet Union—a trajectory that is maintaining a steady decline. Arguably, this trend is not helped by having one of the world’s highest abortion rates. Despite initiatives launched in recent years, such as financial incentives for having a child earlier or for having more than one, the population still decreased in 2018 by another 224.57 k.3 All of which provides a curious demographic context for maintaing a policy commitment to ICA.4

20.2.1.1

Marriage and Family Breakdown

More than half of all Russian marriages end in divorce.5 With the distinction of holding the global record for annual rates of divorce,6 coupled with a higher than averaget national rate of domestic violence,7 the particular instability of marriages in Russia is often a precursor to family breakdown, leading to children being abandoned or taken into public care, and this inevitably becomes a factor in generating domestic 2 See, further, at: https://www.statista.com/statistics/1005416/population-russia-gender-age-group/. 3 Ibid. 4 See, further, Khazova, O., ‘Russia: Past, Present and Future’, in Sutherland, E.E. (ed.), The Future

of Child and Family Law, Cambridge University Press, 2012, pp. 330–362. to the Federal State Statistic Service of the Russian Federation, in 2012, there were 1,213,598 marriages concluded and, in the same year, 644,101 marriages were dissolved. 6 In part attributable to the absence of any provision for legal separation. See, further, at: https://www.nydailynews.com/+%E2%80%BA+life-style+%E2%80%BA+russia-highest-div orce-rate-world-u.&ie=UTF-8&oe=UTF-8. 7 In February 2017, parliament decriminalized first instances of battery among family members. See, further, Human Rights Watch report, I Could Kill You and No One Would Stop Me: Weak State Response to Domestic Violence in Russia, (2018), at: https://www.hrw.org/report/2018/10/25/ i-could-kill-you-and-no-one-would-stop-me/weak-state-response-domestic-violence. 5 According

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855

and international adoptions. The fact that there is no law permitting gay marriage, and every sign of further constraints on the LGBT community, is another stress factor on many personal relationships.

20.2.1.2

Unmarried Mothers

Adding to that fragility is the large proportion of Russian children who are in one parent families. In 2008, 26.9% of all children born in Russia were born to unmarried mothers and in 2009 the proportion was 26.1%.8 According to research by Moscow’s Higher School of Economics, nearly 18% of all mothers in Russia raise their children alone, with some 15% of all children under 18 raised without a father present.9 Under the Family Code, s 48, the woman who has given birth to a child has sole parental responsibility for him or her if the legal parentage of the father has not been established. Under s 62(2) she will be fully vested with that responsibility if she is aged 16 or older. However, under s 48(3), parental responsibility will be shared jointly with the father if he has recognised the child or if, under s 49, his paternity has been established by court order. Under the Constitution, both parents have equal rights and duties with regard to their children10 thus the marital status of the parents of a child available for adoption is of no relevance; most such children are simply classified as ‘orphans’. Abandoned Children/Orphans Parents, under Russian law, are prohibited from voluntarily relinquishing their parental responsibilities to the state. This may help explain why, in extreme circumstances, so many resort to anonymous abandonment. In Russia—as in China, South Korea, Romania and elsewhere—the term ‘orphan’ does not denote a child whose parents have died but is a status that is loosely assigned to a child whose parents are, for whatever reason, missing. Most often, one or both have abandoned their child—due to poverty, illness or alcholism—and care responsibility has been assumed by the state with the child consigned to an orphanage. In many cases, the identity and even the wherabouts of a parent may be known, they may even visit, but the child is nonetheless designated an ‘orphan’: more accurately a ‘social orphan’; and as such is not available for adoption. It has been estimated that “over 700,000 orphans live in Russia, increasing at the rate of 113,000 per year”.11 As Olga Khazova has pointed out, this number is likely to be a gross underesitimate as it only refers to those registered by the authorities and thus excludes, for 8 See,

The Demographic Yearbook of Russia 2010, Statistical Handbook, Moscow, Rosstat, 2010, at pp. 165–166. 9 See, for example, Utrata, J., Women Without Men: Single Mothers and Family Chnge in the New Russia, Cornell University Press, (2015). 10 Russian Federation Constitution 1993, Article 38 and the Family Code, s 61. 11 See, Russian Children’s Welfare Society, ‘Statistical Snapshots: Russia’s Children at Risk’, at: https://web.archive.org/web/20130310072245/http://www.rcws.org/aboutus_statistics.htm.

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example, the many ‘street children’ and those who have run away from home.12 The government’s National Action Strategy on the Rights of Children for 2012–2017 included a commitment to prevent abandonment of children to institutions and to decrease institutional care but while progress has been made on the latter, the rate of abandonment remains high. Child Trafficking It is perhaps unsurprising that the above background of orphans and abandoned children, and an ICA programme that saw some 87,000 Russian children adopted overseas between 1995 and 2013, provided a context within which an indeterminate level of child trafficking was also able to thrive. ‘Illegal adoption’ had been prohibited under s 154 of the Criminal Code and ‘trafficking in minors’—whereby babies were procured by organised groups and sold for adoption—had been prohibited under s 152, but nonetheless such offences became a pressing concern for Russian authorities around the turn of the century. In 2003, three years after signing the Trafficking Protocol, Russia’s legislature criminalised human trafficking by deleting s 152 and substituting a new provision—s 127(1)—into the Criminal Code with a focus on ‘exploitation’. This was reinforced by a further amendment in 2008. Nonetheless, in 2019 there were further reports of child trafficking.13 While it is difficult to gauge the extent of such practices, and there have been many publicised cases of successful prosecutions, it is undeniable that continuing high levels of poverty in parts of Russian society exacerbate this problem.14

20.2.1.3

Abortion

Russia legalised abortion in 1920, the first country in the world to do so. When it was re-legalised in the 1950s, it rapidly achieved one of the highest abortion rates in the world.15 Since the late 1980s this has decreased considerably, though remaining more than three times the U.S. rate, and has declined further in the past decade.16 The Federal Family Planning Programme, which tripled the number of family planning clinics between 1991 and 1997, increased contraception, significantly reduced abortion and must thereby have reduced the numbers of unwanted children. 12 Khazova, O., ‘Intercountry Adoption in Russia: Though a Large Amount of Law, Still a Lot of Uncertainty’, in Bainham, A., (ed), International Survey of Family Law, Bristol, Jordan Publishing Ltd., 2005, pp. 433–461, at p. 434. 13 See, further, at: https://www.independent.co.uk/news/world/europe/russia-black-market-babiessale-children-journalists-kids-a9161461.html. 14 See, further, McCarthy, L.A., ‘Transaction Costs: Prosecuting child trafficking for illegal adoption in Russia’, Anti-Trafficking Review, Issue 6, (2016), pp. 31–47. 15 By 1965, the Russian abortion rate had risen to more than 16 abortions per 100 women (or 1 in 6) of childbearing age. By contrast, fewer than 1 in 30 women of childbearing age in the United States has had an abortion in any single year since the Roe v. Wade decision. See, further, at: https://www. rand.org/pubs/research_briefs/RB5055.html. 16 See, DaVanzo, J. and Grammich, C.A., Dire Demographics: Population Trends in the Russian Federation, Rand Corporation, (2001).

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857

According to official statistics, the steady decline in abortions began in 1988. Between that year and 2015, they decreased from 4.6 million annually to 0.8 million; from 1991 to 2015 the abortion rate fell from an average of 3.39 registered abortions per woman to 0.78.17 The data indicates that the national level of abortions continues to decrease. In short “whereas in the 1960s there were three abortions for every birth, today the number of births is twice as high as the number of abortions”.18 Given that “in France, Sweden, Estonia, Great Britain, the US, and a number of other countries, the abortion rate in the 15–19 age group is higher than in Russia” and that “in the youngest age group (up to 20 years old) both abortions and birth rates have gone down in recent years,” the cumulative effect must adversely impact on the numbers of Russian children now becoming available for adoption.19 This trend is likely to strengthen as the policy of the Ministry of Health continues to discourage abortions by measures such as: in 2012, Russian doctors acquired the right to refuse an abortion; in 2014, it was prohibited to advertise induced abortion as a medical service; and in 2016, a new informed consent form, with detailed information on the effects of induced abortion, was introduced.

20.2.1.4

Assisted Reproduction Services

The Federal Law on the Basics of Protection of Citizens’ Health 2011, s 55, establishes the right to IVF treatment which is clearly necessary in a country with one of the lowest fertility rates in the world.20 As President Putin commented in January 2020: “we have entered a difficult, a very difficult demographic period … the aggregate birth rate, which is the key index showing the number of births per woman, was only 1.5 in 2019 … it is not enough for Russia”.21 Indeed, in response to this problem, Russia has developed a very modern spread of IVF clinics—some 167—many private, offering services domestically and internationally to married and unmarried heterosexual couples and single women but not to same sex couples. While there is no national regulatory authority, the Russian Association for Human Reproduction (RAHR) maintains a nationwide registry of such clinics and medical centres. Although prohibitively expensive for most Russians, access to IVF must reduce the need for some to access domestic adoption as the route to creating a family. Surrogacy Surrogacy, including on commercial terms, is flourishing in Russia, indeed it has become an established international health tourism destination for that reason. It 17 See,

further, at: https://www.statista.com/statistics/1034529/russia-total-number-of-abortions/. Victoria Sakevich, a Russian demographer, in an interview with Maria Lipman, at: https://www.ponarseurasia.org/point-counter/article/abortion-russia-how-has-situation-changedsoviet-era. 19 Ibid. 20 See, further, at: https://www.statista.com/topics/5937/demographics-of-russia/. 21 See, further, Presidential address at: https://en.kremlin.ru/events/president/news/62582. 18 See,

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is lightly regulated in accordance with the Family Code, s 51(4), which merely states that any such arrangement must be based on the full consent of all parties.22 The governing principle was first formally stated in the Fundamental Principles of Legislation on Protection of Citizens’ Health 1993, s 35, that stipulated the ‘right of every adult woman of childbearing (procreative) age to assisted reproduction and embryo implantation’ which was further developed in the Law on Protection of Citizens’ Health 2011, s 55. Surrogacy, currently available on a domestic and international basis, remains subject to the permissive rule that although the woman who gives birth is to be recognised as the mother of that child, this can be negated by the surrogate mother’s consent and her name is not then registered as the mother on the child’s birth certificate.23 Inevitably, the issue of whether the surrogate can renege on an agreement and choose to keep the child has come before the courts.24 A 2009 court ruling established that a single woman was entitled to be registered as the mother of a child born by way of surrogacy. In 2018 a ruling of the Constitutional Court of the Russian Federation25 concerned a woman, infected with HIV following a miscarriage. Subsequently she had a child via surrogacy but had been denied the opportunity to adopt that child because of the prohibition on individuals from becoming parents or legal guardians of children if they suffered from one of the illnesses—such as HIV or Hepatitis C—included in the government’s ‘List of Illnesses’. The court’s ruling enabled her adoption to proceed. Surroagcy, like IVF in general, provides an alternative to adoption for those who can afford it. For international prospective parents, however, adoption is often an adjunct to surrogacy as it usually provides the only means whereby they can establish legal parentage on their return home with the child.

20.2.1.5

Children in Public Care

Under the Family Code, s 69, both parents always share joint parental responsibility and this can only be terminated—or restricted under s 73—by natural causes or if one or both are convicted of serious misconduct against their child in circumstances that are exhaustively specified in that section.26 The number of children in respect of whom parental rights have been terminated far exceeds those for whom they have been restricted. Under s 124 children found to be without parental responsibility, for whatever reason, are admitted to the Russian public care system. In practice these 22 See,

further, Khazova, O., ‘Surrogacy, the Free Market Approach’, Intersentia, pp. 281–306. Khazova comments “strictly speaking, surrogacy as such has nothing to do with adoption in this case and in general, as adoption cannot be used to finalize parental rights as a result of surrogacy” (note to author, 09.07.2020). 24 See, for example, Ch.P. and Ch.Yu, RF Constitutional Court Ruling of 15.05.2012 No. 880-O and RF Constitutional Court Ruling of 27.09.2018 No. 2318-O. 25 Ruling No. 25-P of June 20, 2018. 26 See, also, s 156 of the Criminal Code of The Russian Federation 1997 which provides for the criminal punishment for parents who neglect or abuse their parental rights if that involved cruelty towards the child. 23 Olga

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reasons are likely to be because their parents are either: dead; have had their rights terminated due to child abuse; have been deemed incapable due to illness, disability, alcoholism or drug addiction etc.; are missing, their whereabouts unknown; or have neglected their parental duties. Section 123 authorises such children to be adopted, or placed in a foster family, or placed in an orphanage or similar facility. Statistical research conducted by Biryukova and Sinyavskaya27 shows that the number of children without parental responsibility has been declining since 2009: reaching 2.1% of all children under the age of 18 by 2015. At the same time the number of those taken out of parental care also fell: from 0.36% of all children under the age of 17 in 2000 to 0.20% in 2015. Over the same period statistical data confirms the ongoing de-institutionalisation of the Russian care system, a trend that has continued since the mid-2000s. Thus, 11.5% of children out of parental care were institutionalised in 2014, whereas in 2000 this share amounted to 27%.28 An interesting and perhaps singular feature of the Russian public child care system is that once admitted to that system, children have very little channce of returning to parental care. Despite the fact that perhaps as many as 90% of children entering the system per year have a living parent, reuniting the children with the birth family is not yet recognised as a primary objective of the policy; according to the official statistics, only one out of ten children return home. The resulting accummulation of children in state care might, in other countries—particularly the US and the UK—be expected to lead to state sponsored adoption programmes but in Russia this is constrained by parental veto. Foster Care As Biktagirova explains, foster care acquired “legal status in 1996 when the Family Code of the Russian Federation was approved… understood as the custodianship or guardianship over the child or children”.29 Under the Family Code, s 151, a child may be placed with foster parents who, however, are not vested with parental responsibility so their powers and duties in relation to the child are constrained. By the beginning of the twenty-first century there were about 1000 foster families in Russia. Biktagirova estimates that in Russia there are more than 700,000 ‘social orphans’, 90% of whom have living parents and about two-thirds of these children are now brought up in substitute families.30 From 2005 to 2015 the proportion of children in out-of-home care placed with foster parents grew from 2 to 24%, a rise largely attributed to Federal Law No. 48 FZ on Guardianship and Fostering introduced in 2008 which provided foster parents with salaries, professional support and financial assistence.31 27 See, Biryukova, S. and Sinyavskaya, O., ‘Children out of Parental Care in Russia: What We Can Learn from the Statistics’, The Journal of Social Policy Studies, Vol. 15, No. 3, (2017), pp. 367–382. 28 Ibid. 29 Biktagirova, G.F., ‘Foster Family in Russia: Historical Background and Present Day Situation’, Procedia - Social and Behavioral Sciences 191 (2015), pp. 1143–1147. 30 Citing Shustova, L.P. (2011) Foster family: Psychological-pedagogical support and forwarding. In R.A. Valeeva (Ed.), Foster family: social profile (pp. 39–44). Kazan: Otechestvo. 31 See, Biryukova, S. and Sinyavskaya, O., op cit, at p. 376.

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The policy of using financial incentives to expedite the transfer of orphans or abandoned children from institutions to foster care has proved to be a popular means of supplementing incomes and stemming the de-population of rural villages.32 The remuneration accompanying the foster care of a child—nearly 6,000 rubbles a month ($93, 85 euros)—has led to couples fostering multiple children simultaneously. It may also have proved counterproductive in terms of incentivising foster parents and others to adopt such children. Residential Care Traditionally, out-of-home care for Russian children has meant residential care in orphanages that resembled institutions. Children are placed in orphanages due to voluntary relinquishment by their parents, involuntary removal from their homes, or the death of their parents. The orphanages each accommodate approximately 250 children: if less than three years of age they live in baby homes; if aged 3–15 years old they are in children’s homes. Their ‘residential career’ is likely to involve considerable shuttling between facilities and transient relationships with rotas of care staff. After the collapse of the Soviet Union there was a significant increase in both the number of orphans and in the number of orphanages. Currently, “Russia remains a country with one of the highest proportions of children in out-of-home care and a still relatively high level of institutionalisation among such children”.33 Further, residential care remains largely institutional in nature. Although, in the period 2000–15, the proportion of such children in residential care fell by almost two-thirds from 27 to 10%, by the end of that period the facilities still catered for an average of 270 children. In 2015, 90.9% of all children in residential care were more than 6 years of age; those aged between 7 and 15 accounting for 69.3%. Family In the first two decades of the twenty-first century, as Biryukova and Sinyavskaya point out, family based placements under guardianship arrangements became the most frequently used option for children out of parental care. In 2015, 47% of the latter were placed with guardians. Placed for Adoption Under the Family Code, s 124(1), adoption is the preferred placement for children left without parental care: domestic adoption being prioritised over ICA. Biryukova and Sinyavskaya suggest that it was the introduction of state support for foster parents, that came in 2008 with Law No. 48 FZ, which led to a reduction in the proportion of out-of-home children being placed for adoption. From 2000 to 32 See,

further, at: https://www.france24.com/en/20191117-how-russia-s-foster-children-are-sav ing-dying-villages. 33 See, Biryukova, S. and Sinyavskaya, O., ‘Children out of Parental Care in Russia: What We Can Learn from the Statistics’, The Journal of Social Policy Studies, op cit, at p. 368.

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2006 that proportion was about 22% but thereafter dipped to 19–20% where it has remained ever since.34 The introduction of Federal Law 272 FZ (the Dima Yakovlev law) with its financial incentives for domestic adoptions is likely to have adjusted that trend upwards.

20.2.2 Resulting Trends in Types of Adoption Statistical data on annual adoptions in Russia is difficult to come by and, when available, comes from different official sources producing different numbers which are invariably dated. This necessarily makes any attempt to identify trends a tentative exercise.

20.2.2.1

Third Party Adoptions

Although, to an outsider, Russian adoption may seem dominated by ICA, it has been pointed out35 that while “there was a period when inter-country adoption exceeded the adoption of Russian children by Russian families”36 times have changed and “in 2012, 71.6% of all adoptions of Russian children were domestic adoptions, while 28.4% were international adoptions,37 where most of the children left for the USA, Italy and Spain”.38 By 2014, the proportion of foreign adoptions had more than halved to 13.6% of the total.39 Domestic In 2013 it was estimated that the number of domestic adoptions might reach 15,000 by the end of that year—a nearly two-fold increase from 2012, apparently driven by financial incentives for adoption approved by the government in February. This has to be seen against a background of more than 100,000 orphans listed in a registry maintained by the Education and Science Ministry, according to the head of its child protection department, Yevgeny Silyanov.40 In short, although domestic adoptions have increased, the increase is from a very low baseline and this still leaves a great many children languishing in orphanages. The low rate of domestic adoptions is attributed to a sense of social stigma associated with both adopters and adoptees. 34 See,

Biryukova, S. and Sinyavskaya, O., op cit, at p. 376. O., The Changing Concept of ‘Family’ and Challenges for Family Law in Russia’, in Scherpe, J., European Family Law,Vol. II, 2015, at p. 230. 36 Ibid, citing ‘Usynovlenie (Adopting) in Russia’ of the Ministry of Education and Science of the Russian Federation at: https://www.usynovite.ru/statistics/2012/4/ (in Russian). 37 Ibid. 38 Ibid. 39 See, further, at: https://www.usynovite.ru/statistics/2014/4/ (in Russian). 40 See, further, at: https://www.themoscowtimes.com/2013/11/19/number-of-orphans-six-times-lar ger-than-russians-ready-to-adopt-a29720. 35 Khazova,

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Child Care and Protection According to Alexandrovna41 : The low percentage of adoptions of children from children’s homes is due to such factors as stigma of adoptive family, attributing to them selfish or criminal motives, branding them as ”abnormal”, “handicapped”, “unable to give birth to their own child”, the secrecy of adoption (which has for many years been abolished in western countries and the U.S.); the weak promotion of family-based care for orphans; low living standards of families with children; a fear of the ‘bad blood ‘of foster children; the negative “advertising” of cases of child abuse in adoptive families in the media that in turn has a negative impact on the image of foster care.

It might be added that not all children in Russian orphanages are available for adoption; in fact only a small proportion—maybe 14%—as the majority are ‘social orphans’ meaning that one or both parent/s have legally retained their parental responsibilities. Adoption is only possible when parents have relinquished their children for that purpose, or are deceased, or when the court terminates parental responsibilities following a conviction for child abuse or neglect. In the latter instance, as Olga Khazova points out, the Family Code, s 130, permits a child to be placed for adoption without parental consent.42 Moreover, a large proportion of the children who do become available will present serious challenges—often not apparent at that time—to their adopters. Children who have been abandoned, perhaps suffering from foetal alcohol abuse, vitamin deficiency, emotional and sensory deprivation and the effects of institutional life, may well go on to develop and manifest serious mental health problems. Adopters—both domestic and ICA—have experienced a particularly high rate of disruption and irretrievable placement breakdown in respect of Russian adoptees. Once a child is designated as available, they must be placed on a local registry of adoptable children (for 1 month), then on a regional registry (1 month) and then on a Federal Data Bank of adoptable children (6 months), a process which takes a total of 8 months during which they may be taken into foster care by relatives, or be adopted domestically, before finally becoming available for ICA. By 2014, official government sources estimated that the number of orphans in the state public child care system had reached 106,000. The post-2012 drive to promote domestic adoption had resulted in a considerable increase in the number of children

41 Alexandrovna,

V.O., ‘Foster Care in Russia: Problems and Prospects’, at: https://core.ac.uk/dow nload/pdf/151233233.pdf. 42 Note to author (09.07.2020).

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being adopted from that system but many—perhaps 5,000—had been returned to orphanages in 2013 and a further 5,000 babies had been abandoned.43 Intercountry ICA is a post-Soviet phenomenon, energing in the 1990s when foreign adoption agencies first appeared in Russia. In 2003, for the first time, intercountry adoptions exceeded domestic: 7582 and 7331 respectively. Between 2004 and 2014 more than 21,000 Russian children were the subject of ICA processes. These children represented 22.5% of all those adopted into the EU over that period: 95% of whom went to Spain, Italy, France, Germany and the UK. However, the traffic had been mainly towards the US. During the period 1992 until the ban in 2012, some 60,000 Russian children were adopted into US families. As the government representative asserted, in the case of A.H. and Others v. Russia,44 not all of these adoptions had positive outcomes. He drew the attention of the court to45 : The deaths of nineteen Russian children who had been adopted by US nationals between 1996 and 2013. In fifteen cases their adoptive parents had been found responsible for their deaths and sentenced to terms of imprisonment ranging from sixteen months to thirty-five years. In two cases they were acquitted and in two cases the investigation is still pending … they also obtained information about ten cases in which adopted Russian children had been subjected to abuse or cruel treatment by their US adoptive parents.

Evidence of a consistent failure on the part of many US adopters to fulfill their post-adoption reporting obligations was also submitted.46 Nonetheless the suspension of agreed adoptions was criticised by the ECtHR and Russia was held to have

43 See, Levy, A Russian Orphanage Offers Love and Care, but Few Ways Out, N.Y. TIMES, May 4, 2010, citing the chairwoman of thc parliamentary committec on family and children, Yelena B. Mizulina, stating that “30,000 children in the last thriee years inside Russia were scent back to institutions by their adoptive, foster, or guardianship families". 44 Application Nos. 6033/13 et al., (2017). 45 Ibid., at para. 397. See, also, the claim that “between 1990 and 2012, more than twenty Russian adoptees died while in the custody of their adoptive American parents” in Barnes, B., ‘A Critique of the U.S.–Russian Adoption Process and Three Recommendations for the U.S.–Russian Bilateral Adoption Agreement’, Emory International Law Review, Vol. 27, Issue 1, at: https://law.emory.edu/ eilr/content/volume-27/issue-1/comments/critique-us-russian-adoption-process.html. 46 It should be noted that although the Russian rationale for imposing the ban was confined to a jusification based on grounds of US ill-treatment of some Russian adoptees (extending to allegations of a culture of child abuse in the US) there is also good reason to believe that the ban was a political response to the Magnitsky Act adopted by the US Congress in December 2012. This Act imposed sanctions on a number of Russian officials as a reprisal for the death of Sergei Magnitsky (a lawyer and whistle-blower who uncovered he largest tax fraud in Russian history), following his detention without trial, torture and death in a Russian prison.

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discriminated against those prospective adopters, close to 1000, whose applications had been terminated by the abruptly imposed ban. Transracial Adoptions The Russian population comprises many different ethnic groups, so there are opportunities for domestic transracial adoption. However, given the unwelcome social exposure that adoption seems to attract in general, it is probable that the extra exposure that accompanies transracial adoption would simply add to its negative connotations. Unquestionably, though, the racial dimension plays a significant role in international adoption. For those prospective adopters in the US, Ireland and elsewhere who place added value on the adoption of a child that would bring an appearance of racial congruity to their family, a Russian ICA is an attractive proposition.

20.2.2.2

First Party Adoptions

Because step-parents, foster parents and others are not regarded under Russian law as bearers of parental responsibility, and may only acquire legal rights and duties if appointed as guardians, this provides an incentive for such persons to seek the added security of adoption. Step-Parents The partner of a child’s parent has no rights in relation to that child. Antokolskaia has noted that by leaving a person who has had close family links with a child without legal protection, Russian law disregards the right to protection of family life safeguarded by Article 8 of the European Convention on Human Right and Fundamental Freedoms.47 It seems likely that applications from step-parents make a significant contribution to annual adoption orders in Russia as this is the only means by which they can legally secure their relationship with their partner’s child. Kinship The established practice of fostering children in the state public child care system with relatives—often grandparents—who over time may need to secure that care relationship, probably means that a significant proportion of foster parent applicants for adoption are relatives of the child concerned.

20.3 Overview of Principles, Policy and Law Following the dissolution of the Soviet Union in 1991, and the re-birth of Russia as an independent state, a new Constitution was adopted. In 1992, the 1991 Declaration of the Rights and Freedoms of Person and Citizen became part of the Constitution: 47 Antokolskaia,

M., Family Law (Semeinoe pravo), Jurist, Moscow, 1999, p. 192.

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Article 1 of the Declaration provided that “the generally recognized international norms concerning human rights have priority over laws of the Russian Federation and directly creates rights and obligations for the citizens of the Russian Federation”. The record of the first Constitutional Court—established in 1991—indicates that it became an important institution promoting the direct application of international law. Other related developments include the initiative to establish the post of Children’s Rights Commissioner, also known as Presidential Commissioner for Children’s Rights, in 2009. At much the same time Children’s Ombudsmen began to be appointed: by 2010, children’s ombudsmen were operating in 50 regions of the Russian Federation.

20.3.1 Adoption Principles and Policy The governing principle, driving government policy since the turn of the century, is that state care of out-of-home children should become more family based and less reliant on institutions. Where adoption is not appropriate or feasible then foster care opportunities, either with relatives or with remunerated carers, should be developed and this has been actively pursued since 2008.

20.3.1.1

Principles

A notable feature of the Russian adoption process—and of the law relating to children and family matters more generally—is that it has given recognition to certain key principles for longer than many developed western countries. In some areas, it did not wait for international human rights instruments to set benchmark standards. The right of a child to give or withhold consent to decisions affecting their interests, for example, has been established for some decades as has gender equality in terms of parental responsibility regardless of marital status. The Interests of the Child The Family Code, s 65(1), states that ‘execution of parental responsibility should not contravene the interests of the child’ and that ‘safeguarding of the child’s interests should be the parent’s paramount consideration’. In addition, the paramountcy principle is incorporated into Russian law by virtue of Article 21 of the UN CRC as applied by Article 15(4) of the Constitution: though confined to adoption; on other issues the ‘primary consideration’ standard of the UN CRC, Article 3, prevails. Nonetheless, the concept of ‘parental responsibility’ would seem to be an entrenched benchmark in Russian jurisprudence and those vested with it—parent, or a person appointed by the Department of Guardianship and Curatorship or by a court—are presumed to be acting in the best interests of the child unless they breach duties of care specified in s 65(1) in relation to matters such as maintenance and education. As Antokolskaia comments there is a “sense that the current law presupposes finding

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a balance between the interest of the child and the interests of his or her parents” rather than giving automatic priority to the former.48 Openness Glasnost has only very recently arrived in Russia: society here has traditionally been somewhat ‘closed off’, inward looking and defensive; determined to control its own destiny; and suspicious, not without good reason, of its neighbours. Adoption, always intimately emeshed in its social context and reflective of its values, has been similarly inhibited. Russian adoption conforms to the ‘closed’ model: there is no obligation on adopters to inform an adoptee of their status as such; nor is there any legal recognition of an adoptee’s rights to access birth parent information (see, further, at Sect. 20.13.1). There is no equivalent to the systems facilitating information disclosure and tracing and reunification such as are established in many other developed countries, these are largely left to international service providers. Siblings Together The Family Code, s 124(3), expressly states that as a general rule separation of brothers and sisters is not allowed. It is permitted only in exceptional circumstances. Not Applicable to Children Born Through Artificial Reproduction Techniques Adoption is prohibited as a means of acquiring parental rights in respect of children born through such techniques.

20.3.1.2

Policy

Since at least 2012, Russian policy has been to emphasise adoption as the most secure form of family based care for out-of-home children. Further, it stresses that while domestic rather than international adopters are to be preferred, the latter are also needed. There is a recognition that this requires a strategy aimed at overcoming traditional domestic antipathy to adopting orphans, and one which provides appropriate financial and professional support for adopters of children with special needs, in order to promote fostering/adoption, prevent placement breakdowns and avoid traumatised children being returned to institutional care.

20.3.1.3

Adoption Alternatives

Guardianship is the only real legal alternative to the parental responsibility vested inherently and equally in birth parents and vested by the court in adoptive parents. There are three types: ‘full guardianship’, appointed under s 145(2) of the Civil Code, when a guardian is appointed to a child under the age of fourteen left without parental 48 See,

Antokolskaia, M., ‘National Report: Russia’, op cit, at p. 20.

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care; ‘guardian with limited capaity’, appointed under the same s 145(2), in respect of a child between the ages of fourteen and eighteen who is left without parental care; and child care institutions or orphanages, designated as guardians, under s 147(1) of the Civil Code.

20.3.2 Constitutional Framework Relating to Adoption In this civil law jurisdiction, the primary sets of provisions governing family matters in general—including adoption—are the Constitution, the Civil Code and the Family Code. The Federal Law on Basic Guarantees of the Rights of the Child in the Russian Federation 1998 and the Federal Law on Custody and Guardianship 2008 are also relevant.

20.3.2.1

The Constitution of the Russian Federation 1993

This provides the governing legal framework: all other federal laws, government decrees etc. must be compliant with constitutional provisions. A legal basis for the direct application of international norms by national tribunals was established by the Constitutional Court, prior to the introduction of the 1993 Constitution, but was confirmed by the latter in Article 15(4). Consequently, national courts and tribunals must give precedence to treaty norms over domestic law. The Constitution contains an extensive catalogue of human rights based on generally recognized international human rights standards. The Constitutional Court is designed to guarantee the supremacy of the Constitution and to ensure institutional protection of democracy and fundamental human rights. Article 46 of the Constitution provides that “everyone shall be guaranteed protection of his or her rights and freedoms in a court of law”. The 1995 Law on International Treaties includes Article 5 which states that “the provisions of officially published international treaties of the Russian Federation, which do not require the promulgation of domestic acts for application, shall operate in the Russian Federation directly”. This is repeated in the Article 3 of the 1996 Federal Constitutional Law on the Judicial System of the Russian Federation, which regulates the activities of all courts in Russia, and for the avoidance of all doubt, it was reaffirmed by the 1995 Supreme Court Ruling On Some Questions Concerning the Application of the Constitution of the Russian Federation by Courts.49 Article 15(4) This provides that “the generally recognized principles and norms of international law and the international treaties of the Russian Federation shall constitute an 49 Biulleten’ V erkhovnogo Suda Rossiiskoy Federatsii (Bulletin of the Supreme Court of the Russian

Federation), 1996, No. 1, at 3.

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integral part of its legal system.” It also states that “if an international treaty of the Russian Federation establishes other rules than those stipulated by the law, the rules of the international treaty shall apply”. Article 17 The human rights section of the 1993 Constitution includes Article 17 which provides that human rights in Russia are to be recognized and ensured “according to the generally recognized principles and norms of international law”.

20.3.2.2

The Civil Code of the Russian Federation 1994

The Civil Code, in four parts, provides the primary source of authority for resolving civil law issues. For present purposes it is only of incidental relevance as family matters are addressed in the Family Code.

20.3.2.3

The Family Code of the Russian Federation 1995

Successor to the Russian Family Codes of 1918, 1926 and 1969, this iteration provides the primary federal legislation governing family matters on a nationwide basis: other federal laws such as the Law on the Acts of Legal Status 1997 and the Federal Law on the Basics of Citizens Health 2011 deal with discrete aspects of family law. The provisions of the 1995 Family Code regulate the vesting of custodianship and guardianship responsibilities with respect to a child in foster parent/s, in accordance with an agreement concluded between the guardianship authorities and the foster parent/s for a specified period.50 Chapter 11 deals with the rights of minors and is firmly based on the UN CRC provisions. s 65(1) Parental responsibility must be exercised in the best interests of the child. s 73 Provides a power for state removal of a child from parental care where a parent is abusing that child. s 123.1 Places priority on family based rather than institutional care for out-of-home children. s 149 Entitled ‘Rights of children without parental care and those living in institutions, hospitals, specialized social centers’, it declares that orphans and children left without 50 See,

also, the Civil Code, Part 1.

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parental care are guaranteed maintenance and training on the basis of full government support. s 165 Provides that the adoption of a child who is a Russian national by foreign persons should be carried out in compliance with the law of the State of the adoptive parents’ nationality. At the same time, the general provisions of Russian law concerning adoption and the provisions of the relevant international treaties should also be complied with. 2019 Amendment Relating to Adopters with Disease On May 29, 2019, President Putin signed into law a bill, amending s 127 of the Family Code, allowing courts to use discretion in approving adoption orders concerning children who already live with their prospective adoptive parents if one of the parents is suffering from certain diseases.51 This followed and gave effect to a 2018 Constitutional Court decision which ruled it impermissible to deny an individual infected with HIV or hepatitis C the ability to adopt a child who shares an established family relationship with the adopter and lives with the adopter, as long as the adoption is in the child’s best interest.52 Previously, s 127 of the Family Code had made it illegal for those suffering from an illness included in the 2013 government-approved ‘List of Illnesses’ to adopt a child, establish guardianship, or to provide foster care. Both HIV and hepatitis C were duly removed from the government’s ‘List of Illnesses’ (see, further at Sect. 20.5.3.1).

20.3.3 Contemporary Adoption Related Domestic Law Current law is oriented around promoting domestic adoption, reducing ICA and addressing the ‘orphan’ issue. Of significance is the 2013 law prohibiting the “propagandising of non-traditional values” to minors and the general discriminatory tenor and effect of laws that tend towards inhibiting the LGBT community. The Code of Civil Procedure 2002, ss 269–274; the Federal Law on State Data Bank on Children Without Parental Care 2001; the Federal Law on the Main Guarantees of the Rights of the Child in the Russian Federation 1998, are also relevant.

20.3.3.1

Decree No. 481 of 2014

This introduced new legislative measures that promised to overhaul the public child care system and accelerate a reduction in the reliance on institutional facilities. 51 Federal

Law No. 115 of May 29, 2019, Amending s 127 of the Family Code of the Russian Federation. 52 Constitutional Court of the Russian Federation, Ruling No. 25-P of June 20, 2018.

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Presidential Decree No. 1688 of 28 December 2012 on Certain Measures for the Realisation of State Policy in the Area of the Protection of Orphaned Children and Children Left without Parental Care

The Decree contains instructions on measures to be taken with a view to encouraging adoption by Russian nationals. They include, in particular, simplification of the adoption procedure, improvement of the medical care offered to orphaned children and children left without parental care, and an increase in social benefits.

20.3.3.3

Federal Law No. 272-FZ: The Dima Yakovlev Law 201253

This legislation ‘On Sanctions for Individuals Violating Fundamental Human Rights and Freedoms of the Citizens of the Russian Federation’ lists activities that constitute a breach of Russian nationals’ rights and freedoms. It provides sanctions against U.S. citizens involved in violations of said human rights and freedoms and includes a prohibition against the adoption of Russian children by US citizens and terminates the bilateral agreement with the US. It took effect from January 2013 and as of summer 2020 it remained in place.

20.3.3.4

Law on Alternative Dispute Resolution with Participation of an Intermediary (Mediation Procedure) 2011

Governing the application of mediation procedures, this law has a relevance for family disputes including determining child custody arrangements and parental responsibilities.

20.3.3.5

Bilateral Agreement Between the United States of America and the Russian Federation Regarding Cooperation on the Adoption of Children of 13 July 2011

This followed on from the ‘Hansen scandal’54 and sets out the reciprocal procedure to be followed by the nationals of one country for the adoption of children who are nationals of the other. It provides, in particular, that the adoption of a child from Russia shall occur only with the assistance of an authorised organisation, except in cases of adoption by the child’s relatives. It further provides that the prospective 53 Federal

law of Russian Federation no. 272-FZ of 2012–12-28. It is seen by many as a response to the Magnitsky Act in the United States, which placed sanctions on Russian officials who were involved in a tax scandal exposed by Russian lawyer Sergei Magnitsky. 54 In April 2010, seven year old Artyom (renamed Justin Hansen) was sent back to Moscow, alone, with a letter stating that his US adoptive mother no longer wanted him.

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adopters must obtain written appraisals of their living conditions and their suitability and eligibility to adopt a child, which must be issued by the competent authorities in the receiving country.

20.3.3.6

Government Decree No. 654 of 4 November 2006 on the Activity of Foreign States’ Agencies and Organisations55

This contains provisions on the opening, functioning and discontinuation of the activities of foreign adoption agencies’ offices in Russia. Article 2 of the Decree authorises the Ministry of Education and Science to issue permits to open offices.

20.3.3.7

Government Decree No. 217 of 4 April 2002 on the State Databank of Children Left Without Parental Care and the Exercise of Control Over Its Formation and Use

Provides a mandatory procedure for prospective adopters to comply with prior to submitting an adoption application to a court. Article 20 of the Decree sets out the list of documents that must be submitted to the State databank of children left without parental care.

20.3.3.8

Government Decree Nos. 268 and 275 of 2000 on the Activities of Adoption Bodies of Foreign States and on Rules for the Transfer of Children for Adoption,56 Respectively

This provides that adoption of Russian children by foreign nationals is allowed only when domestic adoption appears impossible.

20.3.4 Contemporary Adoption Related International Law Russia has signed and ratified many international instruments, including the UN Convention on the Rights of the Child (UN CRC)57 with its Optional Protocol, and many others with a varying relevance for adoption, such as: the European Convention 55 Full title—‘On the Activity of Foreign States’ Agencies and Organisations in [Carrying out] the Adoption of Children in the Territory of the Russian Federation and Control over its Exercise’. 56 Full title—‘Adoption of the Rules for the Transfer of Children for Adoption and Exercise of Control over the Conditions of their Living and Upbringing in Adoptive Families in the Territory of the Russian Federation and [on Adoption] of the Rules on Registration by Consulates of the Russian Federation of Children—Nationals of the Russian Federation Adopted by either Foreign Nationals or Stateless Persons’. 57 Ratified on 20th November 1989.

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for the Protection of Fundamental Human Rights and Freedoms (ECHR) and its many protocols; the International Covenant on Civil and Political Rights (ICCPR); the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW, not ratified), the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (not ratified). Notably, however, Russia has signed but not ratified the Hague Convention,58 though its law and procedures are very largely Hague compliant, and it is not a party to the European Convention on the Adoption of Children (see, further, Sect. 4.4). The process whereby many tens of thousands of Russian children were adopted by citizens of other countries was governed by a series of bilateral agreements between the governments of Russia and the countries involved. Of particular importance is the fact that by ratifying the ECHR, Russia thereby recognised and accepted the jurisdiction of the ECtHR and must therefore take account of the rulings of that court. In conjunction with the above-mentioned constitutional amendment, this should mean that the case law of the ECtHR becomes assimilated into Russian domestic jurisprudence.

20.4 Regulating the Adoption Process The Russian adoption process is consensual in nature: the parental right to refuse consent is absolute; and a parent has the right to withdraw consent up until a court issues an adoption order. By the end of the last century, adoption in Russia had become centred around institutional orphanages, was tarnished with corruption, and was barely manageable with over one hundred foreign adoption agencies operating within the country furthering an increasing number of government negotiated bilateral agreements. It was the need to meet the standards required to become a signatory state to the Hague Convention, coupled with the realisation that domestic adoption would have to be greatly increased in order to cope with the growing problem of ‘social orphans’, that induced the introduction of regulatory changes over the past decade or so.

20.4.1 Length and Breadth of Process Having declared their interest in adoption, the prospective adopters are guided by an adoption agency through the standard sequence of stages, from training course through to adoption hearing and concluding with arrangements for adoptors to register the adoption and obtain a fresh birth certificate for the child. The process differs from that of other developed nations by being shorter as it does not yet provide fully at one end for the pre-placement counselling of birth parents nor, at the other, 58 Signed

on 7th September 2000.

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for the information disclosure and tracing and reunification stages that are now well developed elsewhere. It may also be somewhat rudimentary in some aspects, such as: promoting the adoption of children with special needs; providing accurate information on the health needs of children being adopted; and in preparing prospective adopters for the realities of parenting institutionalised children and then providing them with sufficient appropriate professional support to sustain placements.

20.4.2 Role of Adoption Agencies and Other Administrative Bodies The formal process begins by the applicants, or an adoption agency acting on their behalf, contacting the local Ministry of Education office for information on children available for adoption. Potential adopters are then invited to participate in a mandatory course, as required by s 127 of the Family Code,59 (three-hour sessions. twice a week, for two months) run or authorised by the government child welfare agency, designed to challenge attitudes and prepare prospective adopters for the realities of adoption. It is in three main parts: the first introduces the legal aspects of adoption and explains the process; the second focuses on medical challenges and is mostly geared towards those who want to adopt a child with special needs; while the third part covers the psychological challenges of integrating an adopted child into a new family and home. ICA applicants, having completed the training course and been approved as potential adopters in their home country, commence the Russian process by submitting a dossier of required documentation to the Central Authority and then wait to be notified as to a possible match with an identified child.

20.4.2.1

Adoption Agencies

Only non-profit adoption agencies are now permitted to operate in Russia; this follows an official prohibition on commercial agencies due to the endemic bribery and corruption that had come to be associated with the Russian adoption process. Any agency wishing to facilitate adoptions in Russia has to be fully accredited by the Russian government. Government Decree no. 654 of 4 November 2006 provides that once accredited such an adoption agency may carry out the following activities, which are broadly the same for both domestic and ICA applicants: (1)

(2)

59 The

submit an application seeking a child for adoption to an executive agency or the Ministry of Education and Science and submit an adoption application to a court; obtain information about the child on the basis of the prospective adoptive parents’ application; Hague Convention requires prospective adopters to be provided with such a training course.

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(3) (4)

issue invitations and provide visa support for prospective adoptive parents; arrange accommodation for prospective adoptive parents and assist them with the adoption procedure; participate in court hearings on adoption cases, receive judicial decisions on adoption and assist adoptive parents in obtaining a birth certificate and a passport for the child to enable the latter travel outside Russia; carry out on Russian territory any other lawful activity related to the representation of adoptive parents’ and prospective adoptive parents’ interests.

(5)

(6)

20.4.2.2

Central Adoption Authority

The Ministry of Education, established as such in May 2018,60 has overall responsibility for adoption and functions as the country’s Central Adoption Authority.

20.4.2.3

The Department of Guardianship and Curatorship

This Department is entrusted—under ss 70(2), 72(2) and 73(4) of the Family Code— with the duty to safeguard the interests of children. Under s 78 of the Code, any required investigation of the circumstances relating to a child is carried out by the Guardianship and Curatorship Department. Under s 65(3), an inspector from the Department may be directed by a judge to conduct enquiries and submit a report on ‘the attachment of the child to each of the parents, brothers and sisters, the age of the child, the moral and other personal qualities of the parents, relations existing between each of the parents and the child, the possibility of creating for the child conditions for nurturing and development (nature of activity, work regime of parents, material and family status of the parents and others)’. In difficult cases an expert psychologist may be involved.

20.4.3 Role of the Determining Body Adoption in Russia is a judicially determined process held in camera, attended by the applicants, or sometimes by an adoption agency employee acting as their representative.

60 From

March 2004 untill May 2018 this Ministry formed part of the Ministry of Education and Science of the Russian Federation.

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20.4.4 Civil Registry Office The local civil registry office (ZAGS) has the duty to register every birth and every adoption order or decree issued by the local district court. In the latter case, it will then issue the adopters with an adoption certificate. As in many other countries, this office holds the crucial data for linking an adopted child with their birth parent/s.

20.5 Threshold for Entering the Adoption Process: Eligibility and Suitability Criteria There is no adoption specific legislation governing the Russian adoption process. Instead relevant provisions are to be found largely in the Family Code as supplemented by the Constitution, the Civil Code and numerous decrees and directives. It is consensual in nature and judicially determined.

20.5.1 The Child Under the Family Code, s 129, consent of the birth parent/s is the essential legal criterion determining the eligibility of their child for adoption. In the absence of parental consent, a child is only eligible if he or she has been legally designated an orphan and/or has been abandoned, or is the subject of a court ruling depriving his or her birth parents of their responsibilities. If aged 10 or older, a statement declaring the child’s consent to the proposed adoption will be required; their consent is mandatory and may not be dispensed with.

20.5.2 The Birth Parent/s Under the Family Code, s 69, parental responsibility is vested in both parents, jointly and equally, whether married or not. Therefore evidence of consent to adoption is required in respect of both unless the need for it can be dispensed with in specified circumstances.

20.5.2.1

Unmarried Mother

Where a child has been designated an orphan or as abandoned, or their parents have both had their responsibilities removed by court order following their conviction for

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parental abuse/neglect, then the birth mother’s consent will not be required for the child to enter the adoption process. Otherwise her consent is essential.

20.5.2.2

Unmarried Father

If a father has formally recognised a child as his, or his paternity has been established by a court order, he acquires full parental responsibility and shares joint parental responsibility with the mother. In such circumstances, his consent to the adoption of his child—if he can be located—is a legal necessity. Russian Family law can be dismissive of the rights of an unmarried co-habitee even if he has assumed full parental responsibility in respect of his partner’s children for some years.61 This dismissive approach was demonstrated in the recent case of Uzbyakov v. Russia62 which concerned an unmarried father of five children the youngest, D., being born in 2009. Their mother—his partner for 17 years—died while he was in prison, resulting in the children being taken into care. When he learned of his partner’s death the father began legal steps to have his paternity recognized but was too late to prevent D being placed into the guardianship of prospective adopters who successfully adopted her in 2011. Having completed the paternity proceedings, the remaining four children were returned to their father who then discovered that D had been adopted and sought to revoke the adoption order. His claims and further appeals were all rejected, the Supreme Court handing down the final decision in June 2013. In his application to the ECtHR he claimed that that his daughter’s adoption without his knowledge and the refusal by the courts to recognise his paternity and revoke the adoption order had violated his rights protected by Article 8 of the Convention. The court, having heard evidence that he had cared for and supported all five children and had been involved in D.’s upbringing for the first year of her life, found that there had been a bond between the applicant and his daughter from birth which amounted to “family life” within the meaning of the Convention. It considered that the domestic authorities had shown a serious lack of diligence in the adoption procedure. It also doubted whether adoption had been in D.’s best interests, it leading to estrangement from her father at a very young age and separation from her siblings. It found that the only reason for the courts’ refusal to formally recognise the applicant’s paternity was, in essence, the fact that his daughter had already been adopted by third parties and that there were no formal grounds under the relevant law to revoke the adoption order. It could not accept that the absence under the law of formal grounds for revoking the adoption order was a “sufficient” consideration to justify the courts’ refusal to recognise his paternity and revoke the adoption order. Nor could the length of time she had been with her foster family, 18 months, be enough to warrant ruling out the possibility of reuniting her with her biological family. The Court concluded that the domestic authorities had breached their duty as they had failed to carry out an in-depth examination of all the relevant factors and to fairly balance the rights of all 61 Nazarenko

v. Russia, Application No. 39438/13, (2015). No. 71160/13, (2020).

62 Application

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the individuals involved with due regard to the particular circumstances of the case which amounted to a failure to respect the applicant’s family life and had violated Article 8.

20.5.2.3

Failed Parental Rehabilitation

Where parental rights have been removed by court order—on grounds of abuse or neglect—the law requires a 6 month interlude from the date of the court order— before adoption proceedings may begin. This is to provide a breathing space during which the feasibility of rehabilitation can be explored. The Family Code, s 72(1), provides grounds for the restoration of parental rights: this may be justified where the parent/s can show a definitive change of behaviour, way of life and/or attitude towards the education of their child. In such changed circumstances they are entitled, under s 72(3), to request the return of their child. This will be granted subject to the Article 72(4) caveat that such a restoration is in the best interests of the child; a matter which is wholly determined by the wishes of that child if he or she is aged 10 or older. However, as Biryukova and Sinyavskaya point out “the available statistical data clearly shows that returning a child to his/her biological family is not a priority for the Russian child protection services…” They explain that while there was a positive trend towards facilitating the return of such children in the period 2008– 11 this has since been reversed. In 2015, only 5.8% of children were returned to their birth parents. This, they speculate, is due to “the lack of methods for working with problematic biological families … it usually requires more time and does not necessarily result in a successful child plascement”.63 In this context, a curious case was that of V.D. v. Russia64 which concerned the challenge made by a foster parent regarding the decision to return a severely disabled child in her care to the birth parents. The child, born in 2000, had been placed with her by the authorities—because the birth parents had been unable to cope with his health problema—and remained there for nine years, under the authority of guardianship, and without any contact with his parents for the first eight years. By 2007 the child’s health had improved and the parents demanded that he be returned to them. The foster parent refused and brought court proceedings to have parental responsibility transferred to her, which the court rejected and instead, in 2009, granted the parents contact rights. The following year the birth parents were successful in court proceedings demanding the return of their child and also in refusing contact between foster parent and child. The ECtHR found the fact that the child had spent the first nine years of his life exclusively with the foster parent could not itself rule out the possibility of reunification. Further, it also found that the authorities had provided relevant and sufficient reasons for their decision and that the decision-making process 63 See, Biryukova, S. and Sinyavskaya, O., ‘Children out of Parental Care in Russia: What We Can Learn from the Statistics’, op cit, at p. 378. 64 Application No. 72931/10, (2019).

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had been fair. It held that, given the margin of appreciation enjoyed by the state, the reunification of the child with his parents did not constitute a violation of the foster parent’ family rights under Article 8 but that there has been a violation of Article 8 on account of the respondent State’s failure to provide a possibility for the family ties between the applicants and the child to be maintained.

20.5.3 The Adopters: Eligibility and Suitability Criteria To begin adoption proceedings, prospective adopters (or an adoption agency acting on their behalf) make enquiries: they request the Ministry of Education office in the area where they wish to adopt for information on children available for adoption; they may be quite specific about the type of child they wish to adopt (age, gender, disabilities, sibling groups, etc.). Applicants may also request information on children listed in the Federal Ministry of Education’s Central Data Bank. Applicants are required to provide the usual personal-profile data: names, ages, address, occupation, etc. They must also satisfy the following specific eligibility criteria • Age: Applicants must be at least 25 years of age. The youngest generally not more than 45 years older than the child. Some regions are more flexible than others. • Previous Children: There is no limit to the number of children already in the home. • Marriage Status: Heterosexual married couples are eligible to adopt. There are no prior divorce restrictions. Single women are eligible to adopt children of either gender. • Income: There is no minimum income requirement but a certified statement from employer(s) verifying job position, or a declaration of income is necessary. • Housing: evidence of permanent housing or proof of home ownership is required. • Medical History: There are some medical restrictions. Recent medical reports are required. • Criminal History: Applicants with a criminal history of child abuse, violence or domestic violence are ineligible. All applicants must submit a Home Study report conducted by competent state authorities and evidence that they have completed the mandatory adoption training course. Although there is no specific law prohibiting the same-sex partner of a child’s parent applying to adopt the child, such a prospective adopter would be unlikely to be eligible because contemporary social attitudes are such that same sex adoption would be viewed as not conducive to promoting the welfare interests of that child.

20.5 Threshold for Entering the Adoption Process …

20.5.3.1

879

Domestic Adopters

The 2019 amendment to the Family Code now allows the courts to permit adoption applications—in limited circumstances—from those diagnosed with HIV, hepatitis C and other serious listed illnesses, such as tuberculosis, malignant tumours, substance abuse, psychiatric disorders, and various forms of disability. This legislation was introduced following a 2018 ruling by the Constitutional Court of the Russian Federation that it was impermissible to deny an individual infected with HIV or hepatitis C the ability to adopt a child who shares an established family relationship with the adopter and lives with the adopter, as long as the adoption is in the child’s best interest.65 Because local authorities continued to exclude HIV-infected people from the adoption process, however, in May 2019, a federal district court in the north eastern region of Russia accepted a case to review the legality of such a decision, and repealed as illegal the decision of a local guardianship board, which had prohibited a woman with HIV from establishing guardianship over her orphaned nephew, who had lived with this woman since his birth.66 In addition, the new law removes what it terms “indiscriminate impediments” to adoption by adopters whose income is below the poverty line or who have not completed the training for adopting individuals required by s 127 of the Family Code. However, these relaxed conditions only apply in circumstances where the children to be adopted live with the applicants due to previously established family relations.67 Moreover, as the ECtHR acknowledged in Alekseyev v. Russia,68 given the lack of consensus among states regarding any right of same sex couples to adopt, the fact that they were not eligible to do so in Russia was a matter within the margin of appreciation of that state. However, also in 2019, limits to government encouragement were demonstrated when criminal proceedings were instigated against social workers in Moscow who had permitted the placement of two siblings with a same sex couple in 2010 and subsequently facilitated their adoption of the now teenage children.

20.5.3.2

Intercountry Adopters

Russia imposes specific constraints on ICA applicants. The 2013 law, for example, introduced a ban on same sex couples from foreign countries adopting Russian children. This law also banned adoption by unmarried individuals who live in countries with laws permitting same-sex marriages. 65 Constitutional

Court of the Russian Federation, Ruling No. 25-P of June 20, 2018. See, further, at: Constitutional Court website. 66 Nefteyugansk District Court, Case No. 2a-1912/2019. See, further, at: Russian Federation Automated Justice Portal. 67 Federal Law No. 115, Art. 2. See, further, Sundier, S., ‘Putin Signs Bill Enabling Some HIVPositive Individuals to Adopt’, JURIST (May 31, 2019). 68 Applications Nos. 4916/07, 25,924/08 and 14,599/09, (2011).

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In addition to evidence that they satisfy the above eligibility criteria, ICA applicants are required by Article 20 of Decree no. 217 of 4 April 2002 to submit a list of documents to the operator of the State databank of children left without parental care. These include: (1) (2) (3) (4) (5) (6) (7)

(8) (9)

a statement of intent to adopt a child and a request to obtain information on children from the State databank of children left without parental care; a completed application form; an undertaking to register the child with a Russian consulate abroad; an undertaking to allow inspection of the adopted child’s living conditions; a copy of an identity document; an attestation by the competent agency in the person’s home State as to his or her living conditions and suitability to become an adoptive parent; an undertaking by the competent agency in the person’s home State to monitor the adopted child’s living conditions and upbringing in the adoptive parents’ family; an undertaking by the competent agency in the person’s home State to ensure that the adopted child is registered with a Russian consulate abroad; a copy of the licence or other document confirming the authority of the competent agency in the person’s home State referred to in (6) above.

On receipt of the documents, the operator of the State databank will provide the foreign applicant with information about available children who correspond to the applicant’s wishes or will return the documents with a written refusal to provide the information requested, indicating the reasons for the refusal (Article 24). If the outcome is favourable, the operator will provide the applicant with a referral to visit the child (Article 25).

20.5.3.3

Single and Same Sex Adopters

Same sex couples are ineligible to adopt either domestically or on an ICA basis. Single applicants of either gender—from countries where same sex marriage is lawful—are similarly ineligible. Single applicants are eligible for domestic adoptions but as a rule there should be at least 16 years age difference between adopter and child.

20.6 Pre-placement Counselling The Hague Convention requires all parties to an adoption to be provided with counselling prior to decision-making and the 2011 Bilateral Agreement between Russia and the US specifically required confirmation that the prospective adopters had “undergone all the requisite psycho-social preparation” with the assistance of the authorised organisation or the competent authority.

20.6 Pre-placement Counselling

881

20.6.1 Counselling Services Pre-placement counselling has recently become a standard requirement for domestic prospective adopters because of the high attrition rate in adoption placements; many having broken down because adopters were poorly prepared and had unrealistic expectations. Counselling services for birth parents have, in practice, been less pressing in Russia than in other developed nations, perhaps because so many adoptees are defined as ‘orphans’.

20.7 Placement Rights and Responsibilities The interim period—after matching and before the adoption hearing—is of course crucial: it provides a breathing space for all parties to take stock and prepare for the final legal stage.

20.7.1 Authority to Place Under the Family Code, s 145, where a child’s parents have both died, the Department of Guardianship and Curatorship can appoint a guardian. In practice that guardian may be an orphanage which may decide, under s 124(1), to place the child for adoption.

20.7.1.1

Placement by Birth Parent

Adoption placements are legally restricted to accredited adoption agencies; birth parent/s are not permitted to directly and independently place their child with other person/s for adoption purposes.

20.7.2 Placement Supervision Russian authorities closely manage and monitor ICA placement arrangements both before and after adoption. The schedule of mandatory post-adoption reports has been a characteristic feature of the Russian adoption process. It is not known what the equivalent regime might be for domestic adoptions.

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20.8 The Hearing Under s 125(1) of the Family Code, cases concerning the adoption of children are to be heard by the court. As Russia does not have specialist courts for juvenile or family matters, such cases are dealt with by local courts of first instance, in the area where the child lives, with a general jurisdiction in normal civil proceedings. Prior to the hearing, pursuant to s 273 of the Code of Civil Procedure of the Russian Federation, the judge must determine the issue of who, in addition to the parties, is to participate—the child’s parents, other interested parties, namely the child’s relatives, the institution where the child resides or the child himself (if aged between ten and 14 years old).69 Under s 155 of the Family Code, notification of mandatory attendance is then served on all parties and on such others as may have been determined. Judges sometimes agree to waive one parent’s presence when there are compelling medical or personal reasons for the request. In a few regions, the parents may be represented at the hearing by an adoption agency employee. Under s 273, the presence of the child’s parents, other interested parties and the child—if aged between ten and 14 years old—can also be required if deemed necessary. The prospective adopters submit a formal adoption application to the court together with the following documents: • a copy of the couple’s marriage licence. If not married, the prospective adoptive parent submits a copy of his/her birth certificate; • recent medical reports on the prospective adopters’ health; • a certificate from their employer(s), verifying their job position; • income or a declaration of their income; • evidence that the prospective parents have permanent housing or proof of home ownership; and • the results of a home study conducted by competent state authorities. The local child-welfare representative must submit the following material to the judge: • the child’s birth certificate; • a medical report on the child; • documents confirming the child has been registered with the Central Data bank of orphans at the Ministry of Education and that no Russian citizens have applied to adopt the child; • a statement from the local child welfare authorities that the adoption is in the child’s best interest; • if the child is older than 10, a statement of his/her consent to the adoption; • if the child is younger than 10, a statement from his/her natural parents agreeing to the adoption, or documents explaining why parental consent is not required; 69 See,

the Plenary Supreme Court of Russia ruling no. 8 in 2006 on the application of legislation by the court during the examination of cases concerning the adoption of children.

20.8 The Hearing

883

• a statement of consent from the director of the institution where the child lives. The judge’s decision is based on a review of the above documents in a closed court hearing which usually lasts about an hour. The review will focus on whether there is evidence to satisfy the legal requirements, for example that the adopters have none of the disqualifying medical conditions specified in the Family Code (including tuberculosis, substance abuse, mental disorders, and other diseases).

20.8.1 Where Consent Is Available Given that most adoption applications are in respect of orphans or abandoned children, issues relating to the consent of birth parent/s are unlikely to arise at this stage. Nonetheless, Article 129 of the Family Code requires the judge to be satisfied that both their consents, where possible, have been obtained or reasonable efforts have been made to obtain them, and that the consent of the child concerned is available if he/she is aged 10 or older.

20.8.2 Where Consent Is Not Available Under s 130 of the Family Code the need for the consent of the parent/s can be dispensed with, as Antokolskaia has pointed out, only when70 : • • • • •

the parent(s) are unknown; the parent(s) has been declared by a court to have disappeared; the parent(s) has been declared by a court legally incapable; the parent(s) has been discharged of their parental rights; or the parent(s), for reasons considered insufficient by the court, have not lived with their child for six or more months and neglect their duty to educate and maintain the child.

In such circumstances, the judge will need to be assured instead that, under s 131(1), the consent of the guardian of the agency or institution with care responsibility for the child is available. If the consent of the child concerned, aged 10 or older, is not forthcoming then the adoption cannot proceed. Parental consent may also be dispensed with under s 73 if one or both parents are found guilty of serious abuse or neglect of their child.

70 Antokolskaia,

M., ‘National Report: Russia’, para. 31, at: https://ceflonline.net/wp-content/upl oads/Russia-Parental-Responsibilities.pdf.

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20.9 Thresholds for Exiting the Adoption Process The absence of domestic judgments, delineating how Russian law and principles are applied in a range of different circumstances, creates difficulties for those trying to understand how this most critical stage of the adoption process actually works.

20.9.1 The Welfare Interests of the Child Under the Family Code, ss 124(1) and 125, the law grants the court a broad discretionary power to decide whether or not adoption is in the best interests of a child and, particularly, whether or not such adoption would be favourable for the physical, psychological, spiritual and moral development of that child.

20.9.1.1

The Paramountcy Principle

The Family Code, s 65(1), makes reference to the paramountcy principle—‘safeguarding of the child’s interests should be the parent’s paramount consideration’— and international provisions articulating the principle are incorporated into domestic law, but in practice Russian judicial interpretation of the principle is somewhat less rigorous that of their colleagues in countries such as the UK: there is no statutory or judicial statement of indicators for identifyng and interpreting matters that would constitute ‘welfare’.

20.9.1.2

Voice of the Child

As Antokolskaia points out “Russian legislation follows the UN Convention by granting the child the right to express its opinion, irrespective of the child’s age”.71 The Family Code declares that a child has ‘the right to express his opinion when any matter affecting his interests is being decided in the family as well as [to] be heard in any judicial and administrative proceedings’.72 He notes that the Russian Supreme Court, in Directive No. 10 of 27 May 1998, directs judges to investigate “whether a child has been unduly influenced by the litigating parties, whether the child is aware of his or her interests, and on what grounds the child has reached his or her opinion”.73 A child below the age of ten must generally be given the opportunity to be heard but if older than ten then the Family Code, s 57, requires that his or her opinion must be taken into account provided that it ‘does not contradict the child’s interests’. In 71 See,

Antokolskaia, M., ‘National Report: Russia’, op cit, at p. 10. Code, s 27. 73 Antokolskaia, M., ‘National Report: Russia’, op cit. 72 Family

20.9 Thresholds for Exiting the Adoption Process

885

short, their wishes may be overruled only in special circumstances. Section 56(2) grants a child aged fourteen or older a general right to independently apply to court for protection of his or her rights. In practice and in advance of the hearing, it often falls to the Department of Guardianship and Curatorship to interview the child and provide a report on their views and wishes to the judge. The Department would usually be able to engage child psychology experts to advise where neecessary.

20.9.2 Representing the Child’s Welfare Interests Under the Family Code, s 64(1), and under the Code of Civil Procedure, s 52, parents are the legal representatives of their child and are entitled to represent him or her in relation to any court procedures without special authorisation. There is no specific domestic legislative provision granting a child the right to independent representation.74

20.10 The Outcome of the Adoption Process Although the judge’s decision is issued on the day of the hearing, following a 2012 amendment to the Family Code, 30 days have to then elapse before the judgment takes effect, during which time it can be appealed.75

20.10.1 Adoption Order The only type of adoption order known to Russian law is the equivalent to that issued in common law countries—full and absolute—transferring all parental responsibilities from birth parents to adopters (subject to matters mentioned below). There are no alternative orders available to the court: it may only grant or reject the application.

74 See,

Kravchuk, N., ‘Children in Post-Communist Russia: Some Aspects of the Child’s Right to Protection’, 17 INT’L J. CHILDREN’S RIGHTS, 611, 614 (2009). 75 Notice: Processing Time for Adoptions Increased, Intercountry Adoption (Feb. 21, 2012). See, further, at: https://adoption.state.gov/country_information/country_specific_alerts_notices. php?alert_notice_type=notices&alert_notice_file=russia_3.

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20 Russia

20.10.1.1

Conditional Adoption Order: Contact

Under the Family Code, s 71(1), once the adoption application is granted the birth parent/s lose their right to maintain contact with the child unless arrangements to the contrary have been directed by the court. Under the Family Code, s 137(5), the court may grant an adoption application but make it subject to a condition that the adopters maintain relations between the adoptee and the birth parent/s or relatives of a deceased birth parent. Moreover, under s 66(2), adopters are free to make a contact agreement with birth parent/s, subject to the condition that any such arrangement does not adversely affect the child. Further, under s 67, application may be made to a court for a ruling on contact with a child. The court will direct such contact arrangements if so advised by the Department of Guardianship and Curatorship. The problems that may make post-adoption contact arrangements difficult were illustrated in Bogonosovy v. Russia.76 This concerned an adoption granted in 2013 to Mr and Ms Z—in the context of a complicated and fractious set of relationships—in respect of M (d.o.b. 28.08.2006). In 2015, the grandparents appealed the adoption order on the grounds that under ss 67(1) and (2) of the Family Code, the grandfather, grandmother, brothers, sisters and other relatives have a right to contact with M and, as the child’s adoptive parents now refused to afford them such contact, despite the grandparents having provided care for M during most of the first five years of her life, the adoption should be annulled. When their appeal was rejected the grandmother applied to the court to have the obstacles to contact with M eliminated. On the basis of expert evidence and the wishes of the child, the court directed certain contact arrangemrents but these were quashed on the appeal of the adoptive parents, as the grandmother had not applied for continued post-adoption contact with her granddaughter within the adoption proceedings. The grandfather then instituted court proceedings, requiring the adopters not to thwart his contact with his granddaughter, which were dismissed. The ECtHR noted that: “adoption terminates the legal relationship between the child and his or her natural parents and family of origin and, therefore, the Convention obligation to enable the family tie to be maintained will necessarily change”.77 It found that the last ruling of the domestic court, dismissing the grandfather’s claim without examining the merits of his post-adoption contact with his granddaughter, constituted a violation of Article 8 of the Convention.

20.11 The Effect of an Adoption Order Under the Family Code, s 274(2), the birth parent/s are relieved of all parental responsibility in respect of their child, while the reciprocal rights and obligations of the

76 Application 77 Ibid.,

No. 38201/16, (2019). at para. 83.

20.11 The Effect of an Adoption Order

887

adoptive parents and that child are legally established, on the date of the entry into effect of the court’s decision to grant the adoption.

20.11.1 The Child Under the Family Code, s 137(2), it is clear that an adoption completely severs the legal relationship between an adoptee and his or her birth parents: an adoptee loses personal non-pecuniary and pecuniary rights and are relieved of their obligations visà-vis their birth parents. However, clause 18 of the Plenary Supreme Court of Russia ruling no. 8 in 2006 provides that the operative part of the adoption judgment must indicate, among other things, whether the court grants the application for continued personal non-pecuniary and pecuniary rights by one of the parents of the adopted child or by relatives of the adopted child’s deceased parent.

20.11.1.1

Name

Following the finalising of the adoption order, the adoptee is registered under the surname of the adopters78 and with their chosen first name, after which the adopters can apply to ZAGS (Office of Vital Records) for the adoption certificate and a new birth certificate (issued in the child’s new name and showing the adopters as the child’s parents). They may also, where necessary, apply to OVIR (Office of Visas and Registrations) for a passport and visa for the child. Adopted Russian children must be registered with the Ministry of Foreign Affairs before they leave the country.

20.11.1.2

Citizenship

Russian ICA adoptees remain citizens of their country of birth unless they formally renounce that citizenship after they reach the age of 18.

20.11.2 The Birth Parent/s The effect of an adoption order is to legally terminate all parental responsibilities of the birth parent/s: any legal order for maintenance payments and all rights to have contact their child immediately cease.

78 Family

Code, ss 135–136.

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20 Russia

20.11.3 The Adopters Under s 137(1), an adoption will vest full parental responsibility for the adoptee in the adopter/s. A copy of the court decree to that effect will be sent by the court within three days to the local civil registry office (ZAGS). On return to their country of residence the adopters are required by Russian Federation legislation to register the Russian adoptee at the Consulate General. Marriage between an adopter and adoptees is prohibited.79 Olga Khazova adds80 : The law stipulates that when just one person adopts a child, and this person is male, the child’s relations with his mother may be retained at mother’s wish; if an adoptive parent is a female, the child’s relations to his father may be retained at father’s wish. If one of the parents of the adoptive child is dead, then at the request of the parents of the deceased parent (grandfather or grandmother of the child) personal non-property and property rights and duties may be retained with respect to the relatives of the deceased parent, if it is in the interests of the adopted child.

It should be noted that because Russia has not yet ratified the Hague Convention adoptions completed there are not automatically given legal recognition in receiving countries. In the UK, for example, Russia is not on the list of ‘Designated Countries’ whose adoptions are entitled to such recognition so, on return, UK adopters will have no alternative other than to commence proceedings to re-adopt.

20.11.4 Dissolution of an Adoption Order Under the Family Code, s 274(2)(1) as amended, the decision of the court to grant the adoption application may be appealed within thirty days. Adoption can be terminated in accordance with the provisions of the Family Code, ss 140–143. Under s 141(1), the grounds for termination of adoption are much the same as justify the removal of parental rights and responsibilities: neglect of parental duties; abuse of parental rights; cruelty; or chronic addiction to drugs or alcohol; but termination is possible even if the conduct of adoptive parent(s) towards the child has been harmful but not to a degree that results in a conviction. Section 141(2) also allows the court ‘to terminate an adoption upon other grounds considered to be in the best interests of the child and the child’s opinion’ which accommodates the faultless incapacity of adopters to fulfil their parental duties due, for instance, to a serious illness or when the relationship with the adoptee deteriorates to the point where to continue the adoptive relationship would not be in the best interests of the child. Arguably, under s 56(2) of the Family Code, an adoptee aged fourteen or older would also have a general right to independently apply to court for the dissolution of an adoption order. 79 The

Family Code, s 14. to author (09.07.2020).

80 Note

20.12 Post-adoption Support Services

889

20.12 Post-adoption Support Services Almost all Russian adoptees have a pre-adoption care history that includes institutionalisation, and for many it has been an exclusively institutional experience. Such care provides adequate physical resources but inconsistent nurture, transient relationships with caregivers and exposure to negative peer behaviour. Consequently, almost all adoptees have some level of emotional disturbance, behavioural problems, and attachment issues. Whether adopted domestically or internationally, they and their adopters will need access to related support services.

20.12.1 Adoption Support Services In recent years the Russian government has introduced financial and other supports in order to incentivise prospective adopters and to reduce the risk of placement breakdown. The fact that Russian adoptees are almost certain to have had some experience of institutional care is a distinctive characteristic of the Russian adoption process and one with specific implications for the type of post-adoption support services that will be required. Psycho-social problems, manifested particularly in attachment issues, are not only to be expected but are also fairly certain to become more evident as time passes and may well be enduring. The resulting emotional stress on adopters can be anticipated and appropriate professional advice and respite should be programmed to be available and ongoing from the outset. Similarly, these psycho-social problems can be predicted to have consequences for the child, the adopters and others as the adoptee particpates in pre-school and classroom activities when cognitive difficulties, attention span, hyper-activity, autistic tendencies and willingness to share are issues likely to be require the additional support of a trained classroom assistant. It is also possible that the psycho-social dimension may mask other latent physical health problems which will only emerge over time. Domestic Research has shown,81 and practice has demonstrated,82 that adopting children from institutional care settings requires a high and continuing level of professional and other forms of support if placements are to be sustained. The high rate of disrupted placements is a fair indicator of insufficient support services. Relevant services are often dictated by geography: the more rural the setting the less likely adopters will have access to the range and frequency of support service input they need. 81 See,

for example, McCall, R.B., ‘Behavior Problems in Children Adopted from Psychosocially Depriving Institutions’, Journal of Abnormal Child Psychology, 38(4), 2010, pp. 459–470. 82 See, reports of the chairwoman of thc parliamentary committec on family and children, Yelena B. Mizulina, stating in 2013 that “30,000 children in the last thriee years inside Russia were scent back to institutions by their adoptive, foster, or guardianship families”.

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20 Russia

ICA Russia requires ICA adopters to submit four post adoption reports at 6, 12, 24, and 36 months following return home from Russia. The first report can be completed by the adopter’s family and does not necessarily require social worker involvement. In addition, simpler reports at 2, 4, 8, and 10 months are required, which can be less in-depth than the major ones. The US has a poor record in terms of meeting these requirements. The Russian government representative presented evidence in the case of A.H. and Others v. Russia that83 : according to information from the Ministry of Education and Science, over the course of the past three years adoptive parents from the United States had failed to provide reports about the wellbeing of 653 children adopted from Russia in 1,136 instances. Furthermore, whereas between 1992 and 2012 US nationals had adopted 61,625 Russian children, on 1 January 2013 only 37,438 adopted children from Russia had been registered with the competent Russian agencies abroad, as required under the terms of the adoption agreements.

In addition to providing updating information on an adoptee’s health, progress and wellbeing, and on general family functioning, these reports should also detail any professional input or other support services made available or still needed.

20.13 Information Disclosure, Tracing and Re-unification Services The Russian adoption process concludes with ‘closed’ records which do not readily permit adoptees84 or others to access identifying information. Indeed, the Criminal Code, s 155, makes it a criminal offence for any person to disclose the fact of adoption without the permission of the adopters. Such has been the historical reluctance on the part of the state to officially accommodate adoption that there is no accurate data on how many children have been adopted overseas. This is attributed to the virtual absence of any government adoption records before 1996.85

20.13.1 Information Disclosure The traditional ‘closed’ model of adoption that has prevailed hitherto is beginning to loosen up as adult ICA adoptees demand access to files containing birth family information. This has been facilitated by a 2015 ruling of the Constitutional Court mandating adoption disclosure in exceptional cases and when it is in the interests of descendants. It grants courts the right to decide, on a case by case basis, whether the 83 Application

Nos. 6033/13, 8927/13, 10549/13 and others, (2017) at para. 394. the Criminal Code. 85 See, further, at: https://www.dw.com/en/activists-criticize-russias-us-adoption-ban/a-16486474. 84 See,

20.13 Information Disclosure, Tracing and Re-unification Services

891

descendants of adoptees should be able to obtain the details of an adoption in order to exercise their right to know their origins. This ruling acknowledges that genetic origin data may be required, for example, to prevent hereditary diseases or a marriage between blood relatives. In circumstances where permission to access information is no longer possible—due perhaps to the death of the adoptee and his or her adoptive parents—then a court may authorise disclose of adoption details on a reasonably grounded request from descendants. A refusal to provide such information may be construed as a violation of constitutional rights. Needless to say, the fact that the Constitutional Court needed to make such a ruling—narrowly defining the rights to adoption information—in itself reveals the extent of general official restrictions on access to such information.

20.13.2 Adoption Registers Given the history of social stigma associated with adoption in Russia, it is unsurprising that it has been treated as a private matter: not only are there no adoption registers but records relating to adoption have never been open to the public. Now there are official registration requirements: children are legally required to be registered with the regional Education Departments (which oversees all adoptions) within one month of their arrival at an orphanage; they are then registered by the regional Education Department with the Federal Ministry of Education for 3 months as a preliminary to possible ICA. These will facilitate those adoptees who, in future, might wish to follow a ‘paper trail’ as part of a personal origins odyssey.

20.13.3 Tracing and Re-unification Services Some international organisations provide contact and re-unification services: Adopted.Com, for example, offers a ‘Russia Adoption Reunion Registry’.86

20.13.3.1

Agency Records

The most relevant Russian adoption records are those archived by the orphanages and courts. While the latter are officially required and reliable they are also minimal and can only be accessed on court authorisation. The former are inconsistent in terms of

86 See, further, at: https://www.adopted.com/country/russia.html?gclid=CjwKCAjw26H3BRB2Ei wAy32zhdPGbW9AKoVJdbXlV2mV0VXV3toFXKvK5CwO3sgW2sg7DjlZGOG21xoCkvMQ AvD_BwE.

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20 Russia

significant information, are often unreliable and on occasion have been deliberately falsified or destroyed.

20.14 Conclusion The primary characteristic of the Russian adoption process is that it is consensual and although Russia has not ratified the Hague Convention, the process is very largely Hague compliant and, having ratified the UN CRC, Russia is subject to monitoring by the CRC. Another characteristic is that it has proved to be a significant generator of public revenue. Putin recognized this in 2006 when he mentioned in a nationwide speech that adoption alone was a $1.5 billion industry in Russia.87 Perhaps the most striking feature of the Russian adoption process is just how small a proportion of all the children deprived of parental care enter that process. The low rate of domestic adoption and the global shrinkage in ICAs, leaves the vast majority of Russia’s “orphans” to age out of institutional care.

87 See,

Elliot, M.R., Russian Children at Risk, 28 RELION E. EUR. 1, 15 (2008).

Part VI

Contemporary Law, Policy and Practice in an Indigenous Peoples Context

This brief part, of one chapter, explores customary adoption as practised for centuries by indigenous people on many different continents and offers a very different perspective from which to view contemporary law, policy and practice. The singular characteristics of their experience—including transparency, maintenance of ties between adoptee and members of birth family, and absence of prescriptive criteria in respect of adopter and adoptee eligibility—are instructive. It considers the significance of such distinctive characteristics and the links between customary adoption and the wider national statutory process. Its purpose is to identify the differences between the legal functions of both systems and to consider their significance in terms of law, policy and practice. This part focuses on the experiences of four distinct cultural groups: the indigenous people of Australia, the M¯aori in New Zealand, the Inuit in northern Canada and the American Indian and Alaska native population of USA.

Chapter 21

Indigenous Communities and Adoption

21.1 Introduction The following working definition of “indigenous communities, peoples and nations” has been suggested by Martinez Cobo1 : Indigenous communities, peoples and nations are those which having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system.

Some modern western nations include within their borders such distinct indigenous communities, each established over many centuries and sustained in accordance with traditional customs that have survived relatively intact into the twenty-first century. This is the case, for example, with indigenous people in Australia, New Zealand, Canada, and the US. In total, it has been estimated that there are some 370 million indigenous people living in approximately 90 different countries. These indigenous cultural communities are, to a varying degree, coherent entities founded on rules and traditions governing relations within and between families and applying to the functioning of their social system as a whole. They co-exist alongside and in an uneasy relationship with the prevailing western culture; sharing time, territory and the necessities of life but often very little in the way of values, knowledge and social infrastructure.2

1 Cobo,

M., ‘ Study of the Problem of Discrimination Against Indigenous Populations’, UN Doc. E/CN.4/Sub.2/1986/7, at paras. 379–382. 2 See, further, UN Dept. of Economic and Social Affairs, State of the World’s Indigenous Peoples: Indigenous Peoples’ Access to Health Services, United Nations, 2016. © Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_21

895

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The differences between indigenous and non-indigenous cultures are readily apparent in their respective sets of laws and customs governing the family. In particular the practice of adoption, which offers a restricted but revealing insight into the life of any culture, indicates the nature of differences in the value systems that now separate modern western society from its indigenous counterpart. This can be seen in the legal functions of adoption which in indigenous cultures are not quite the same as those of modern western societies. However the latter—having developed their present relatively recent, sophisticated, highly regulated and expensive models of adoption—are steadily assuming some of the characteristics of the customary model. There is every reason to believe that this trend towards convergence will continue. This chapter examines the distinctive characteristics of customary adoption as illustrated by the quite different indigenous communities in Canada, Australia, New Zealand and the US—the so-called CANZUS nations—and its links with the statutory process. Its purpose is to identify the differences between the legal functions of both systems and to consider their significance in terms of law, policy and practice. As both systems now operate within the larger frame of reference provided by an ever-growing body of international law, the chapter begins by outlining and considering the bearing of such law on the culture, family life and the practice of adoption in indigenous communities. It then proceeds by examining in turn the experience of adoption among the First Nations/Inuit of Canada, the Indigenous People of Australia, the M¯aori of New Zealand and the Native Americans/Indians of the US.

21.2 Indigenous People and International Law Customary adoption not only operates in tandem with national statutory laws of adoption but it also falls to be measured, and increasingly so, against the provisions of international law. The First Nations, the Aboriginals, the M¯aori and the Native Americans who are the subject of study in this chapter are citizens of Canada, Australia, New Zealand, and the US respectively. All four of these nations are subject to certain international laws which have implications for their indigenous citizens.

21.2.1 Need for International Protection The vulnerability of indigenous communities has long been evident. Exposed initially to the predatory activities of colonial entrepreneurs taking their lands for forestry, mining and farming—which continues3 —and then to the progressive attrition caused 3 See,

for example, Tull, D.L., ‘China’s Engagement in Africa: Scope, Significance and Consequences’, in Journal of Modern African Studies, Vol. 44, No. 3, Cambridge University Press, Cambridge, 2006, at pp. 459–79.

21.2 Indigenous People and International Law

897

by the incidental impact of disease, lifestyle and lack of socio-economic opportunities they have become endangered in all their traditional homelands. Their customs and way of life, their cultural heritage, their language, and the space occupied by their ancestors for millennia, have over the past few generations, been rapidly shrinking. This is broadly apparent all along the interface between indigenous and non-indigenous communities but is perhaps most starkly in family matters, wherein adoption has played a particularly invidious role.

21.2.1.1

Adoption as a Means of Cultural Assimilation

The so-called CANZUS nations—Canada, Australia, New Zealand and the U.S.— share a common history of having ‘weaponised’ adoption as a tool to expedite the assimilation of their indigenous communities, followed in recent years by an intransigent reluctance to endorse international instruments designed to protect those communities. As a late adjunct to policies of residential schooling, these four common law nations in the mid-nineteenth century resorted to a policy of enforced adoption as part of a deliberate strategy to absorb indigenous children into mainstream Caucasian society. This subject has attracted a good deal of academic study.4 As outlined below and in the relevant jurisdiction specific chapters, although the policy largely failed it did cause serious harm, cultural disruption and intergenerational trauma.

21.2.1.2

International Protection

The provisions of U.N. Conventions and the principles forged through human rights jurisprudence apply, at least in theory, not just to the more affluent in modern developed nations but equally to their fellow citizens in indigenous communities who live alongside them but often in third world conditions. In addition, an overlay of indigenous specific provisions is being gradually superimposed in recognition of the inherent vulnerabilities common to such communities, which seeks to identify and address their particular agenda of needs. While the legislative intent is to afford protection for the distinctive culture and customs of our most ancient and now barely surviving communities, there has to be some concern that the outcome of this leavening influence might in fact be an acceleration of their erosion as autonomous entities. 4 See, for example: Nichols, R. L., ‘From the Sixties Scoop to Baby Veronica: Transracial Adoption

of Indigenous Children in the USA and Canada’, in Shackleton, M. (ed.), International Adoption in North American Literature and Culture: Transnational, Transracial, and Transcultural Narratives, Helsinki, Palgrave Macmillan, (2017), at pp. 3–26; Jacobs, M., A Generation Removed: The Fostering & Adoption of Indigenous Children in the Postwar World, Lincoln: University of Nebraska Press, (2014); Swain, S., “Homes are Sought for these Children”: Locating Adoption within the Australian Stolen Generations Narrative’, American Indian Quarterly, Vol. 37, (1–2), (2013), at pp. 203–217; and Newman, E., ‘History of Transracial Adoption: A New Zealand Perspective’, American Indian Quarterly, Vol. 37, (1–2), (2013), at pp. 237–257.

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21.2.2 Provisions with Generic Application The principles of international law, particularly those concerned with fundamental human rights, apply uniformly across nations and equally to all their citizens including those in indigenous communities (see, further, Sect. 4.4). Despite being most obviously in need of their protection, however, there is little evidence of such provisions being deployed for the benefit of indigenous people.

21.2.2.1

The International Covenant on Civil and Political Rights

This multilateral treaty was adopted by the United Nations General Assembly on 16 December 1966 and came into force on 23 March 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of 2018, the Covenant had been ratified by 172 countries. Australia,5 New Zealand,6 the US and Canada7 are all parties to the Covenant. It now includes first and second Optional Protocols. However the Covenant is not directly enforceable in Australia, though its provisions support a number of domestic laws which confer enforceable rights on individuals, and New Zealand has not incorporated it into law, although many of the rights contained within it were given effect by the New Zealand Bill of Rights Act 1990.

21.2.2.2

The International Covenant on Economic, Social and Cultural Rights

This multilateral treaty was adopted by the United Nations General Assembly on 16 December 1966, and came in force from 3 January 1976. It commits its parties to work toward the granting of economic, social and cultural rights, to the Non-Self Governing and Trust Territories and individuals, including labour rights and the right to health, the right to education and the right to an adequate standard of living. As of 2018, 166 countries had ratified the Covenant including Australia,8 New Zealand9 and Canada.10

5 Signed

18.12.1972, ratified 13.08.1980. 12.11.1968, ratified 28.12.1978. 7 Ratified 19.05.1976. 8 Signed 18.12.1972, ratified 10.12.1975. 9 Signed 12.11.1968, ratified 28.12.1978. 10 Ratified 19.05.1976. 6 Signed

21.2 Indigenous People and International Law

21.2.2.3

899

The International Convention on the Elimination of All Forms of Racial Discrimination

This United Nations Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races. It was adopted and opened for signature by the United Nations General Assembly on 21 December 1965, and entered into force on 4 January 1969. As of April 2018, it had 88 signatories and 182 parties. Its impact on national legislation can be seen in the implementation of legislation outlawing racial discrimination by the state, in the workplace, or in the provision of services such as housing and education: including the Race Relations Act 1971 (New Zealand); the Racial Discrimination Act 1975 (Australia); and the Canadian Bill of Rights 1960, followed by the Canadian Human Rights Act 1985 (Canada). Article 1 is of particular importance for present purposes. This defines “racial discrimination” as ...any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

This definition does not distinguish between discrimination based on ethnicity or race but specifically covers discrimination on the basis of caste and other forms of inherited status: whether a particular action or policy discriminates is judged by its effects; as determined by whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.

21.2.2.4

The Universal Declaration of Human Rights

This Declaration, as ratified by the General Assembly of the United Nations in 1948, which together with its two Optional Protocols11 constitutes the International Bill of Human Rights, attained the status of international law in 1976. Australia, the US, Canada and New Zealand are among the countries to have ratified it and all four have subsequently introduced domestic human rights legislation.

21.2.2.5

The U.N. Convention on the Rights of the Child

This Convention, which acquired the force of law on 2nd September 1990, has now been ratified by 194 countries, including three—Australia, New Zealand and Canada—that are considered in this chapter. Its Preamble refers to “the importance

11 The

International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

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of the traditions and cultural values of each people for the protection and harmonious development of the child”.12

21.2.2.6

The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993

The Hague Convention, which entered into force on 1st May 1995, has now been ratified by some 101 contracting states, including New Zealand, the US and Canada.13 Its Preamble declares that “each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin”.

21.2.3 Provisions Specific to Indigenous People That there is a growing body of international provisions relating specifically to the needs of indigenous people is largely due to work progressed under the auspices of the United Nations. Again, to-date there is little evidence of action taken on foot of these provisions and none with a specific bearing on adoption.

21.2.3.1

The U.N. Permanent Forum on Indigenous Issues

This is an advisory body to the Economic and Social Council with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health, and human rights. It has its origins in the Working Group on Indigenous Populations, established by the Council in 1982, to develop a set of minimum standards that would protect indigenous peoples. In the First Decade of the World’s Indigenous People (1995–2004) a Permanent Forum was established together with the Special Rapporteur on the rights of Indigenous Peoples. During the Second Decade of the World’s Indigenous Peoples (2005–2015) the Expert Mechanism on the rights of Indigenous Peoples was created. The adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the General Assembly in 2007 marked a milestone in the relationship between the UN and the world’s Indigenous Peoples.14

12 See,

also, Articles 5, 20 (particularly 20.3) and 30.

13 Australia signed and ratified on 25 September 1998. Canada signed on 12 April 1994 and ratified

on 19 December 1996. New Zealand ratified on 18 October 1998. 14 At the 11th session of the Working Group 2005/06, the Chairperson Mr. Luis-Enrique Chavez (Peru) prepared a compilation of proposals submitted and discussed during the 10th session, which formed the basis of negotiation. The Declaration, adopted by the U.N. Human Rights Council in June 2006 is the exact version proposed by Chairperson Chavez.

21.2 Indigenous People and International Law

21.2.3.2

901

The United Nations Declaration on the Rights of Indigenous Peoples

On 13 September 2007, after some 25 years of negotiations, the Declaration was eventually adopted by the General Assembly. For the purposes of this book, it is interesting to note that while 143 nations were able to endorse the declaration only the four CANZUS nations, the largest and most developed of those with an indigenous population to protect—Australia, the U.S., New Zealand and Canada—voted against it. The Declaration comprehensively addresses issues such as collective rights, cultural rights, and identity, in addition to rights to education, health, employment, land and language among others. It emphasizes the right of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in accordance with their aspirations and needs. Provisions with particular relevance for family life and customary adoption include the following: Article 7 2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group. Article 8 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. Article 20 1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities. Article 34 Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in cases where they exist, juridical systems or customs, in accordance with international human rights standards. Although as yet without the force of law, the Declaration together with the processes and participants that brought it to fruition, serve to prepare the ground for the next stage in a continuum leading, hopefully, towards an international agreement of the terms on which indigenous and non-indigenous people may cohabit with mutual respect for differences in cultural legacy and aspirations.

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21 Indigenous Communities and Adoption

21.3 Canada: The First Nations; The Inuit In the words of Justice Mactavish “no one can seriously dispute that Canada’s First Nations people are amongst the most disadvantaged and marginalized members of our society”.15 Any doubts on this matter were laid to rest by the findings of Canadian Human Rights Tribunal’s nine year long hearing on allegations that the federal government of Canada provided child welfare services to First Nations children and families on-reserve that were flawed, inequitable and discriminatory. On January 26, 2016 the Tribunal ruled in favour of the plaintiffs,16 finding that First Nations children were being discriminated against: specifically that the on-reserve child welfare system received up to 38% less funding than elsewhere. It concluded that the federal government’s arbitrary funding formula failed to consider “the actual service needs of First Nations children and families”, creates “incentives to remove children from their homes and communities” and that consequently “too many children living in First Nations communities are being taken from their families and placed in care”. The disproportionate representation of First Nations children in the public childcare population necessarily results in their having a correspondingly adverse impact on the Canadian adoption process. In response to these findings, the Indigenous Services Minister Jane Philpott announced—in 2018—a six-point plan for improving Indigenous child welfare, including a proposal for federal legislation.17

21.3.1 Background The Inuit are the indigenous people of Nunavut, a newly created territory in Canada. The total population of Canada in 2019 was 37.6 million, including a number of different indigenous groups. Nunavut, a territory of some two million square kilometers occupying almost one-fifth of the land mass of Canada, had a population in that year of a mere 38,780 of which 84% are Inuit living in 28 villages.18 Their customary laws are nationally recognized and find constitutional protection under both the Constitution Act 1982, s 35, and under the Indian Act 1876. In 1867, the confederation process initiated under the British North American Act made “Indians and Lands reserved for Indians” a federal responsibility within the new Dominion of Canada. This process included treaties with the Aboriginal peoples

15 See,

Canada (Human Rights Commission) v. Canada (Attorney General) 2012 FC 445 at para 334. 16 First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 16. 17 See, further, Hahn, H. and Sinha, V., ‘Adoption Protections for Indigenous Children’, at: https:// bettercarenetwork.org/sites/default/files/2019-09/196e.pdf. 18 See, Census statistics for 2016: the population of Nunavut has increased by 12.7% since the last census in 2011.

21.3 Canada: The First Nations; The Inuit

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and led to the Indian Act 187619 under which all Aboriginal people were made wards of the federal government.20 In keeping with the experience of indigenous people in Australia and elsewhere, the history of the Inuit also records abuse suffered at the hands of the non-indigenous population.21 Government policies of assimilation or integration were often strategically directed towards children. This has been documented by the Stolen Generations project which researched the intergenerational effects of removing children from their ancestral homes, families and communities that originated with the residential school experiences and the eventual removal of subsequent generations by the child protection laws that followed.22 Some 40 years ago that particular interface—child protection at the price of cultural identity—was examined by the SCC in Natural Parents v. Superintendent of Child Welfare et al.23 The court was then concerned with a non-consensual adoption application from non-Indigenous foster parents in respect of an Indigenous child removed from abusing or neglecting parents and placed in their care by state authorities. The court at first instance had refused the application on the grounds that there was an inconsistency between state adoption legislation and the Indian Act, which would result in the child losing their Indian status if adopted, and this was precisely what the Indian Act sought to prevent. The British Columbia Court of Appeal accepted the inconsistency but found that as the adoption legislation was subordinate to the Indian Act its provisions would generally apply subject only to any restriction resulting from non-compliance with particular provisions of the latter. Consequently, the adoption could go ahead and the child’s Indian status would survive his adoption by the non-Indigenous couple. Essentially, although s 10(2) of the Adoption Act sanctions the cessation, upon adoption, of the relationship between birth parents and an adoptee “for all purposes”, these words did not destroy the latter’s entitlement to registration as ‘Indian’ under s 11(1)(d) of the Indian Act. The SCC upheld the Court of Appeal decision reaffirming that the Adoption Act, rather than imposing restrictions on Indians, makes it possible for Indian children to have the same right to become adopted as that of all other children. Given that by the time of the SCC hearing the child was aged 7, and had spent virtually his entire life with the applicants, the court was of the view that his welfare interests could only be furthered by the proposed adoption. Subsequently, in Racine v. Woods,24 the SCC, concluded that the welfare interests of the child strongly 19 An Act to amend and consolidate the laws respecting Indians, S.C. 1876, c 18; amended to make attendance compulsory. 20 Ibid., s 2(1) states that: ‘child’ in this Act includes a legally adopted child and a child adopted in accordance with Indian custom. 21 See, for example, the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, Ottawa, 1996. 22 See, Stolen Generations, a local Aboriginal nonprofit group, which in 2002 began a project dealing with the adoption process affecting Aboriginal people across Canada. The project was funded by the Aboriginal Healing Foundation and sponsored by the Ma Mawi WI Chi Itata Centre Inc. 23 [1976] 2 S.C.R. 751. 24 [1983] 2 S.C.R. 173.

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suggested that an opportunity for bonding/attachment provided by placing an Indigenous child in a non-Indigenous family home outweighed any possible long-term loss to the child’s cultural identity. Thereafter, that decision was often deployed as justification for non-Indigenous placements and has become a benchmark indicator of a significant disconnect between two different cultural mindsets.

21.3.1.1

Residential Schools, Adoption, and the Aboriginal People of Canada

In Canada, the first residential school for Aboriginal children was established in 1620 and the last closed in 1986. Throughout the intervening centuries, the collaboration between government and church saw residential school provision gradually extending across Canada. As has been noted25 : What distinguishes the residential schools for Aboriginal children is that they were part of a policy of assimilation that was sustained for many decades.

This policy was consolidated by the Indian Act 1876, as amended, which provided authority for the removal of many thousands of Aboriginal children from their homes, communities and culture to residential educational institutions. Non-attendance at school justified committal to one of the 54 boarding schools and 20 industrial schools that constituted residential school provision for some 5347 Aboriginal children by the mid-twentieth century.26 This was accompanied by other government strategies similarly directed towards racial assimilation. In particular, the Stolen Generations project addressed one of the most significant issues arising in the aftermath of residential schools, namely the policy and practice of the adoption of Aboriginal children outside their cultural groups. Statistics from the Department of Indian Affairs reveal that a total of 11,132 children with ‘Indian’ status were adopted between the years of 1960 and 1990, 70% by non-Indian adopters, but over the century and more of enforced adoptions the total was much greater. As noted in the report by the Aboriginal Justice Inquiry27 : … between 1971 and 1981 alone, over 3,400 Aboriginal children were shipped away to adoptive parents in other societies, and sometimes in other countries.

25 See, the Law Commission of Canada, Restoring Dignity: Responding to Child Abuse in Canadian Institutions, 2000, at p. 51. 26 Ibid. 27 See, Aboriginal Justice Inquiry, 1999 at Chap. 14. The report also notes that “between 1971 and 1981, 70–80% of Manitoba’s Aboriginal adoptions were in non-Aboriginal homes” at Chap. 14. See, also, the Law Commission report, op cit and Miller, J.R., Shingwauk’s Vision: A History of Native Residential Schools, University of Toronto Press, Toronto, 1996.

21.3 Canada: The First Nations; The Inuit

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It has been rightly asserted that ‘many experts in Canadian child welfare now point to the residential school period as the beginning of an intergenerational cycle of neglect and abuse’.28 In 2008, the Canadian Prime Minister acknowledged and apologized for the injustice caused to children, to their families and to the Indian communities by Indian Residential Schools29 : For more than a century, Indian Residential Schools separated over 150,000 Aboriginal children from their families and communities. In the 1870’s, the federal government, partly in order to meet its obligation to educate Aboriginal children, began to play a role in the development and administration of these schools. Two primary objectives of the Residential Schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture. These objectives were based on the assumption Aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, “to kill the Indian in the child”. Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country.

21.3.1.2

Nunavut

Nunavut came into being on April 1, 1999, through the division of the Northwest Territories, as a result of two agreements: the Nunavut political accord, and the Nunavut land claims agreement. The first laid the foundation for the Nunavut Act 1999, the federal law that serves as Nunavut’s constitution. The Inuit in Nunavut control their own legislative assembly through a form of self-government under which non-Inuit residents are also guaranteed the right to participate in elections for the Nunavut legislative assembly and for Nunavut’s 26 municipal governments. Although concentrated in Nunavut, the Inuit are by no means confined to that territory but in fact are spread over large areas of northern Canada.

21.3.2 Contemporary Adoption Law and the Inuit There are three types of adoptions in Nunavut: customary, private, and departmental. Although these parallel systems are in place, customary adoption currently predominates in Nunavut due to the continuing strength of this traditional practice among the Inuit. The prevalence of customary adoption is among the features that distinguish

28 See, Saskatchewan Child Welfare Review Panel Report, ‘For the Good of our Children and Youth: A New Vision, a New Direction’, at p. 18. See, further, at: https://saskchildwelfarereview.ca/CWRpanel-report.pdf. 29 See, speech by the Prime Minister the Hon Stephen Harper on 11 June 2008 Ottawa, Ontario, at: https://pm.gc.ca/eng/news/2008/06/11/prime-minister-harper-offers-full-apo logy-behalf-canadians-indian-residential.

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Nunavut from the rest of Canada.30 As Morrow J commented, in Re Deborah,31 the Inuit practice of customary adoption is “the most outstanding characteristic of their culture and appears to outrank marriage and hunting rights”.

21.3.2.1

Adoption

Adoption in Nunavut occurs when birth parents pass all parental rights to adoptive parents through a permanent adoption order. Guardianship is transferred through adoption and, when finalisation occurs, the child becomes the legal child of the adoptive family, which allows the child’s birth and surname to be changed. Customary Adoption Customary adoption is an arrangement for the care of a child, made between the birth parent(s) and the adoptive parent(s), who are usually relatives or members of the same community. The reasons for such an adoption, as noted by Morrow J in Re Deborah, above, generally conform to a recognizable pattern32 : Looking back over the more than 200 cases that I have heard to date there is no doubt in my mind that these reasons are always there and are all based on good sense: the mother had to go to hospital and could not look after the child; this is the third or fourth child in a row and my wife cannot look after it; this is a twin and my wife cannot look after two of the same age; we have lots and the grandmother is lonely and wants this one to look after.

Subsequently, in Re Tagornak,33 Marshall J listed some of the criteria to be applied when determining whether a customary adoption has occurred: (a) (b) (c)

that there is consent of natural and adoptive parents; that the child has been voluntarily placed with the adopting parents; and that the rationale for Aboriginal custom adoptions is present in this case as in Re Deborah CA above.

Adoption is deemed to have taken place at the time of placement. Under the Aboriginal Custom Adoption Recognition Act 1994,34 customary adoptions are processed by Adoption Commissioners in the various northern communities. As stated in the Preamble, this legislation “without changing aboriginal customary law respecting adoptions” sets out “a simple procedure by which a custom adoption may be respected and recognised and a certificate recognising the adoption will be issued”. Adoption certificates are completed by Commissioners and forwarded to the Supreme Court of Nunavut where they are certified by the Supreme Court Clerk. 30 See, further, Loukacheva, N., ‘Indigenous Inuit Law, “Western” Law and Northern Issues’, Arctic

Review on Law and Politics, Vol. 3, Issue 2, 2012, pp. 200–217. 5 WWR 203 (sub nom. Re Tucktoo and Kitchooalik) 28 DLR (3d) 483 (NWTCA). 32 Ibid., at p. 198. 33 Tagornak Adoption Petition [1984] 1 C.N.L.R. 185 (N.W.T.S.C.). 34 The Aboriginal Custom Adoption Recognition Act 1994, which came into effect on 30.09.95, was promulgated for the Northwest Territories but also applies in Nunavut. 31 [1972]

21.3 Canada: The First Nations; The Inuit

907

One or both birth parents and the adopting parents must be of Inuit, Dene or Métis descent and must be a resident of Nunavut or have some legitimate connection to the territory. Determining the indigenous status of adopters is, however, a matter approached with some flexibility. As Bell and Patterson have observed35 : Aboriginal communities apparently applied their customary laws relating to membership to decide who were members of their communities and thus, were allowed to adopt children under customary laws.

So, for example, Re Tagornak concerned Inuit birth parents, their child and adopters one of whom was Inuit and the other Caucasian. While in Re Wah-Shee36 the adopting mother was a non-Inuit. Moreover, it should be noted that customary adoption is not restricted to the adoption of children. As has been reported37 : … we heard over and over again of traditional laws still practiced today, by which adults will adopt each other as sisters, brothers, aunts, uncles and parents or grandparents. This type of adoption extends the boundary of family and traditional family roles that are given to adoptees.

Private Adoption This is regulated by the Adoption Act 1998 to safeguard the interests of all parties and to ensure the protection and well-being of the child. A private adoption occurs where the child to be adopted is not the subject of a care order. It can be arranged by the birth parent(s) and adopting parent(s), as long as the requirements of the 1998 Act and the regulations have been met. Departmental Adoption Departmental adoption placements are wholly governed by the legislative procedures, regulations, standards and policies relating to the Adoption Act 1998. They occur either on a consensual basis following parental relinquishment or on a compulsory basis following permanent care and custody of the child being vested in the director of social services. When birth parent(s) consent to an adoption, 10 days must elapse after the day the child is surrendered before the parental consent is signed. When the parent(s) has signed a Voluntary Support Agreement form, the child is placed in an approved adoptive home and the placement is managed and supervised by appointed adoption workers. When a child is placed with a family prior to a court order, a pre-adoption acknowledgement is made with the approved adoptive parents, taking the best interests of the child and the possible risks into consideration. Prospective adoptive parents sign an acknowledgement that they understand the child can be removed during a 30 day 35 See,

Bell, C.E. and Patterson, R.K. (eds), Protection of First Nations Cultural Heritage: Laws, Policy, and Reform, UBC Press, 2009 at p. 359. 36 (1975), 57 DLR (3d) 743. 37 See, Poitras, M. and Zlotkin, N., ‘An Overview of the Recognition of Customary Adoption in Canada’, University of Saskatchewan, 2013 at p. 31.

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appeal period and are willing to accept a child under these conditions pending the making of a permanent adoption order. It is not unknown for the same set of parties to complete both a customary and a departmental adoption in respect of the same child.

21.3.2.2

The Statutory Adoption Framework and the Inuit

The current statutory framework governing adoption by Inuit and non-Inuit is provided by the Adoption Act 199838 and the accompanying 2003 Regulations which have a general application throughout the province and require adoption proceedings to be commenced in court. Inuit Placement Before an aboriginal child can be placed for adoption, one of the three Inuit organizations in Nunavut (Kitikmeot Inuit Association, Kivalliq Inuit Association and Qikiqtani Inuit Association) must be informed. An exception is made for circumstances where the child is at least 12 years old or where one birth parent objects to any such involvement. In considering the “best interests” of the child, it is a statutory requirement that consideration be given to the aboriginal heritage of the child; his or her cultural, racial and religious background must be taken into account. An adoption order cannot affect any aboriginal or treaty rights of the child, nor can it affect any entitlement the child may have under the Indian Act. Non-Inuit Placement Adoption within the Inuit culture, as elsewhere, often occurs in the context of the prevailing statutory child care and protection framework within which Inuit children are over represented39 and for whom preventative and support services are admittedly grossly underfunded.40 Nationally, the number of aboriginal children in the care system rose by 71.5% from 1996 to 2001. The 2016 National Household Survey indicated that aboriginal children aged 0–14 years are placed in foster care at 13.1 times the rate of the non-aboriginal. In such cases there is a statutory duty to try to place aboriginal children with members of their extended family or within their communities, if they must be placed in foster care. However, given the shortage of aboriginal foster parents, aboriginal children are often placed with non-aboriginal foster parents. In Re R.T.41 the 38 c.9.

In force November 01, 1998. SI-016-98. Statistics Canada report ‘Aboriginal Peoples in Canada: First Nations People, Metis and Inuit’, 2016, at: https://www150.statcan.gc.ca/n1/en/subjects/indigenous_peoples/indigenous_chil dren? 40 See, Canada (Human Rights Commission) v. Canada (Attorney General) 2012 FC 445 which concerned a complaint, lodged five years earlier by the First Nations Child and Family Caring Society, alleging that chronic underfunding of child welfare services was a violation of their human rights. 41 (2004), 259 Sask. R. 122. 39 See,

21.3 Canada: The First Nations; The Inuit

909

Saskatchewan Court of Queen’s Bench (Family Law Division) found that “adoption” and “the ability of children to maintain their culture” were not mutually exclusive concepts. It accordingly ruled that children retained in foster care by state authorities, due to the refusal of their Aboriginal community to consent to the adoption of the children by non-Aboriginal families, could be placed for adoption with such families because this was in their best interests. As has been noted42 : Significant numbers of Inuit children are adopted by non-Inuit parents and sent outside their communities and territories. This is hard on the children struggling to understand their identity, the Inuit families who lose their children, and the communities that are weakened by family breakdown.

Indeed, the UN Committee on the Rights of the Child has expressed its concern “that vulnerable children, including Aboriginal … children, who are greatly over represented in the child welfare system often lose their connections to their families, community, and culture due to lack of education on their culture and heritage”.43 When such placements are made there is a requirement that kinship ties and the cultural identity of the children should be preserved, that aboriginal people should be involved in planning and delivering services to aboriginal children and families, and that the community should be involved in planning and providing services, in ways that are sensitive to the culture, racial and religious heritage of the families receiving them. Legal Effects of Statutory Adoption Under the statutory process, adoptions become final when a permanent adoption order certificate is granted to the adoptive parents, whereas under the customary process this occurs when the evidence that an adoption has occurred is registered in the Supreme Court. In both types of adoption the legal consequences are final and the birth parents relinquish their legal rights and responsibilities towards the child.

21.3.2.3

Customary Adoption

In Canada, customary adoption is an integral part of the life of all aboriginal communities, is by far the most common way to adopt children in Nunavut, and is specifically recognised under the Indian Act. It is estimated that between 2008 and 2015 almost 1500 children were the subjects of customary adoption in Nunavut; nearly 95% of all adoptions in the territory.44 In addition to legislative recognition, customary adoption constitutes an aboriginal right within the meaning of s 35 of the Constitution 42 See, Rae, L., ‘Inuit Child Welfare and Family Support: Policies, Programs and Strategies’, the National Aboriginal Health Organisation, Ottawa, Ontario, 2011 at p. 7. Further, at: https://www. naho.ca/documents/it/2012_ICWFS-Policies-Programs-Strategies-Summary.pdf. 43 See, the UN Committee on the Rights of the Child, 61st session, C/CAN/CO/3-4, October 2012, at paras 42 and 43. 44 See, further, at: https://www.thestar.com/news/canada/2018/06/11/few-controls-on-territorys-pra ctice-of-custom-adoptions.html.

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21 Indigenous Communities and Adoption

Act 1982 and is acknowledged to be an integral part of the distinct culture of the aboriginal community.45 The Aboriginal Custom Adoption Recognition Act 1994,46 which formally recognised customary adoption in Nunavut,47 was never intended nor used to regulate customary adoption but was and is seen merely as an expedient mechanism for Inuit to obtain birth certificates. It established a statutory framework for customary adoption, with an accompanying level of administration that was not formerly associated with adoption among the Inuit, and provided for the appointment of 26 custom adoption Commissioners whose responsibilities include mediating on behalf of those parties who may be preparing for or managing the consequences of a customary adoption. In short, it has now acquired a legal and institutional character. Characteristics of Customary Adoption Customary adoption among the Inuit is a non-judicial process which has traditionally been viewed by them as essentially a family or community affair: the best interests of the child concerned fall to be determined entirely by the parties, with or without advice from community representatives; and does not provide for any objective professional assessment and guidance. It does have some administrative characteristics: the local customary adoption Commissioner will record the parties intentions and keep information on file; there is no requirement that the Commissioner be satisfied as to the merits of the adoption. The adoption is then registered in the Supreme Court and the Commissioner will apply for an amended birth certificate in respect of the child. Unfortunately, the time lapse between placement and registration can take up to 6 years which can leave children in limbo, in terms of issuing government identification or knowing who acts as the child’s legal guardian.48 The features that distinguish customary from statutory adoption are: • They are invariably open adoptions where everyone concerned, often the whole community, knows the exact nature of the relationships between the parties49 • Most (but not all) customary adoptions occur between relatives • They only occur between Inuit • Mostly it is those who are relinquishing the child who initiate the process by approaching a relative or a friend who often lives in another Inuit community.

45 See,

Casimel v Insurance Corporation of British Columbia, [1994] 2 C.N.L.R. 22 (C.A.).

46 See, Aboriginal Custom Adoption Recognition Act, S.K.K. v J.S. in which a maternal grandmother

who had adopted her granddaughter sought child support from the birth father. 47 Since 1996: some 2000 customary adoptions have been formalised by the courts; approximately 40 departmental adoptions; and perhaps 35 private adoptions to non-Inuit. 48 Source: Peter Dudding, Director, Nunavut Department of Family Services (2014). See, further, at: https://www.nunatsiaqonline.ca/stories/article/65674inuit_orgs_renew_discus sion_on_custom_adoption. 49 The term ‘qiturngaqati’ (‘having the same child’) refers to the fact that both birth parent and adopter share the same relationship with the child.

21.3 Canada: The First Nations; The Inuit

911

Customary adoption is an ‘open’ form of adoption. As has been noted50 : The understanding and agreement between the parties is not that the child is leaving one set of family connections, but rather it acknowledges that another layer of care and responsibility has been added for this child’s benefit … Done this way, adoption has none of the negative meaning that “closed” adoptions, out of community, out of culture, and without any involvement or agreement from original family and community, have understandably had.

It has long been considered desirable because: • The child generally knows he or she has been adopted • The child knows their birth parent/s • Open adoption enables the aboriginal child to maintain access with his or her family and aboriginal community. The Inuit practice allows for relationships to develop between the adopted child and members of the birth family throughout the child’s life. Indeed, originally the purpose was for the adopted child to return to the birth family, in the event of the death of their adoptive parents. In Sagkeeng Child and Family Services v. A.R.W. et al.,51 for example, the Aboriginal agency had found an Aboriginal family, who were prospective adopters for an Aboriginal child, and who had expressed their interest in an ‘open’ adoption that would allow continued contact between child and the birth mother. Occasionally, in customary adoptions, a child returns to their family of origin and may be again placed for adoption with new adopters. Interestingly, in a recent report, the researchers having interviewed tribal Elders pinpointed some fundamental difference between customary and statutory adoption52 : According to the Elders the concept of ‘permanency’ was not relevant in the context of First Nation Childcare situations. In fact, many very senior people had trouble understanding the concept, as it has no place in traditional childcare arrangements. They start instead from the position that they are loaned to parents by Creator … to determine who should bring them up, questions are asked: What are the current needs of the child and parents? Who is best able to look after the child or children? … If circumstances changed, then the child’s best interests were reassessed … there were many stories of children moving from one home with extended family to another and back to mom/dad … strangers were not involved in caring for children; it was a familial arrangement.

The Practice Each aboriginal community has its own process for giving effect to customary adoption. This differs in the three regions of Nunavut, and even within regions. In its most basic form, customary adoption among the Inuit simply rests on an agreement, 50 See, Saskatchewan Child Welfare Review Panel Report, ‘For the Good of our Children and Youth:

A New Vision, a New Direction’, at p. 22. See, further, at: https://saskchildwelfarereview.ca/CWRpanel-report.pdf. 51 2006, MBQB 256 (CanLII). 52 See, Poitras, M. and Zlotkin, N., ‘An Overview of the Recognition of Customary Adoption in Canada’, University of Saskatchewan, 2013 at pp. 23–24.

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21 Indigenous Communities and Adoption

usually verbal, whereby one family gives a child to be raised by another family. Evidence of an adoption properly executed by aboriginal custom would normally include the following53 : • The consent of the natural and adopting parents • The child’s voluntary placement with the adopting parents • The adopting parents’ aboriginal heritage or entitlement to rely on aboriginal custom and • The presence of a rationale for aboriginal custom adoption. In addition, the relationship created by custom must have been intended to create fundamentally the same relationship as that resulting from an adoption order under the Adoption Act 1998. Where such evidence is presented, the court will then register the adoption without any requirement for a homestudy report. The practice has given rise to problems. During the course of inquiries conducted by the Nunavut Law Review Commission, or Maligarnit Qimirrujiit, into customary adoption the following issues were identified: • • • •

Agreement given during pregnancy but subsequently withdrawn by birth mother Adopters fears, sometimes well-founded, that birth parents will reclaim their child Concerns that birth fathers were not consulted prior to adoption All information regarding birth fathers’ should be recorded for every birth and that information should be available to an adopted child • Concerns about people over the age of 65 adopting babies • Concerns that the traditional use of customary adoption, to assist infertile couples or to provide a home for an orphaned child, was now being seen more as a means of dealing with unwanted pregnancies. A report funded by the Department of Justice which explored the practice of customary adoption has given rise to concerns that links may exist between the practice and the possible human trafficking of Inuit women, girls and children. The evidence, largely anecdotal, suggests that some Inuit in the north may be buying and selling their babies and children, and that children are being “prostituted out by a parent, family member or domestic partner.”54 While the factual basis for the report’s findings has yet to be firmly established, it is clear that: there is considerable poverty and a high level of family dysfunction among the Inuit; in the past decade more than 100 Inuit babies have found permanent homes with families in southern Canada; and

53 See,

Re: Tagornak Adoption Petition, [1984] 1 C.N.L.R. 185 (N.W.T.S.C.).

54 See, Roos, H., ‘The Service and Capacity Review for Victims of Sexual Exploitation and Human

Trafficking in Nunavut’, Ottawa, 2014. See, further, at: https://news.nationalpost.com/2014/01/ 30/start-waking-up-report-warns-of-inuit-child-selling-cites-anecdotal-evidence-of-abuse-traffi cking/.

21.3 Canada: The First Nations; The Inuit

913

in relation to the latter, the cost in individual cases may come close to $30,000 in legal fees, travel expenses etc.55 The Child For the purposes of adoption, a ‘child’ is a minor (less than 19 years), a definition which includes a child adopted in accordance with custom and amendments to the Indian Act which extended the entitlement of Indian status to children who are adopted by custom. An Inuit adopted child is known as “tiguaq”. In the Matter of X,56 the Court of Québec (Youth Division) found that in customary adoptions the best interests of the child remained the paramount consideration and therefore the state authorities could intervene to remove an adopted child from their alcoholic Inuit adopter and place him or her in foster care. Legal Effects of Customary Adoption Under the Aboriginal Custom Adoption Recognition Act 1994, customary adoptions become legal when the adoptive parents assume responsibility for the child. A court order is unnecessary. Biological parents normally relinquish their rights and responsibilities towards a child when the government adoption certificate is issued and the adoptive parents assume full rights and responsibilities as legal parents of the child. Unlike the statutory process, the child does not acquire property and inheritance rights by virtue of their adoption. The legal effects of customary adoption were considered in Aboriginal Custom Adoption Recognition Act, S.K.K. v. J.S.57 when Schuler J simply observed that: The consequences of adoption will depend on Aboriginal customary law. Those consequences may in fact be the same as those provided … under the Adoption Act or they may be different. They may also vary as between the communities or regions of Nunavut.

The Registrar Application is made to the Registrar for a certificate of the registration of an adoption. Where this has been conducted in accordance with customary adoption then the Registrar responds by determining whether the eligibility criteria have been met. Affidavits from the birth parents, the adoptive parents, the band council, and elders usually accompany such an application. The affidavits state the particular form of customary adoption that was used and confirm that the applicant was adopted in accordance with that custom. Other supporting documentation may be required.

55 See,

further, at: https://www.yorkregion.com/community-story/4410099-georgina-couple-sdream-to-adopt-inuit-baby-finally-comes-true/. 56 [2006] R.J.Q. 2513. 57 [1999] NWTJ No 94, at para 30.

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21 Indigenous Communities and Adoption

21.4 Australia: The Indigenous or Aboriginal People The ‘Aboriginal people of Australia’ is an umbrella term that refers to a racial group that existed on that continent for at least 40,000 years before its discovery in 1788 by white Caucasians. Although now greatly eroded in number and cultural cohesion, they comprise approximately 500 distinct communities from quite diverse cultural groups.

21.4.1 Background At the time of its ‘discovery’ Australia was terra nullius according to its ‘discoverers’, meaning that it was either uninhabited or occupied only by nomadic people without any organised social systems. It was therefore available to be taken into the possession of the Crown.58

21.4.1.1

Definitional Matters

The working definition59 of an ‘Aboriginal person’ is one who: (a)

Is either: (i) (ii)

(b) (c)

An Aboriginal person, meaning a person of the Aboriginal race of Australia or A Torres Strait Islander, meaning a descendant of an indigenous inhabitant of the Torres Strait Islands and

Identifies as an Aboriginal person or a Torres Strait Islander; and Is recognised or accepted by an Aboriginal or Torres Strait Island community as a member of that community.

In particular a distinction can be made between the Torres Strait Island community and all other Aboriginal people.60 In general terms, the population of the Torres Strait Islands differs from the Aboriginal population as a whole by having a more coherent 58 In the eighteenth century, Captain Cook considered he was entitled to take possession of the continent and all its creatures and resources in the name of the British Crown. The full ownership of the continent remained vested in Great Britain until transferred to the government of Australia when the latter acquired Dominion status. 59 See, Department of Aboriginal Affairs, 1981. ‘Aboriginal or ‘Indigenous’ incorporates three distinct elements: descent, self-identification and community acceptance. 60 Prior to 1971, Torres Strait Islanders were often classified as Polynesian or Pacific Islanders and counted as such in official counts. The Commonwealth working definition was extended to include Torres Strait Islanders in 1972 but it was not until the 1996 Census that individuals could identify as both Aboriginal and Torres Strait Islander.

21.4 Australia: The Indigenous or Aboriginal People

915

community and culture, perhaps partially due to the extent to which they have subscribed to Christian principles while retaining traditional customs. According to the 2016 Census, Australia’s Aboriginal and Torres Strait Islander population was then estimated to be 798,400 (an increase of 19% since 2011), representing 3.3% of the total Australian population.

21.4.2 Adoption as an Imposed System There are not many national examples of non-consensual61 adoption being imposed as a matter of state policy upon the membership of an entire minority culture. This occurred in Australia where an invidious state policy, resulting in the trauma now referred to as the ‘stolen generation’, was applied by statute law to the Aboriginal people in the early years of the twentieth century. It was preceded by the Christian missions and protectorates established throughout Australia in the 1830s and 1840s. These religious organisations sought to ‘rescue’ selected children from what was viewed as a primitive upbringing by family and kinship and instead provide them with a Christian education.62

21.4.2.1

The Policy

In the early years of the 20th century, the Australian government determined to give added impetus to the patchy interventionism of religious bodies. This policy initiative was designed to accelerate racial assimilation by requiring the placement of all (except very dark skinned) Aboriginal children with non-Aboriginal families; no attempt was made to place children with Aboriginal families. It was explicitly intended that the children placed would lose their Aboriginal identity, assume the culture of their adopters and ‘pass as white’. As has been explained63 : This was part of a long-term government plan to assimilate Indigenous people into the dominant white community by removing the children from their families at as young an age as possible, preferably at birth, cutting them off from their own place, language and customs and thereby somehow bleaching aboriginality from Australian society.

It was a deliberate attempt to use adoption to engineer the long-term absorption of one racial group by another. Such a policy was subsequently prohibited by the International Convention on the Prevention and Punishment of the Crime of Genocide 61 There can be little doubt that very few Indigenous birth parents gave what would now be recognised

as a full and informed consent—even if some did sign certain papers. 62 See, for example, Boyce, J., ‘For the Record: background information on the work of the Anglican Church with Aboriginal children and directory of Anglican agencies providing residential care to children from 1830 to 1980’, Anglicare Australia, Melbourne, 2003. 63 See, Bird, C., The Stolen Children; Their Stories, Random House, Australia, 1998, at p. 1.

916

21 Indigenous Communities and Adoption

1948 which includes within its definition of genocide “the forceful transferring of children of a group to another group”.64

21.4.2.2

Law and Practice

The programme began in the Northern Territories with the Aboriginals Ordinance 1918 and continued until the legislative power to remove Aboriginal children was terminated in 1969; though the practice persisted for some time on an informal basis with many Aboriginal mothers pressurised into parting with their children either directly to prospective adopters or to ‘orphanages’.65 It was enforced by the Aborigines Protection Board which was established in every state and territory. In New South Wales, for example, the Board was empowered by the Aborigines Protection Act 1909 at first only to remove children who were neglected but by 1919 additional powers enabled the Board to pursue a policy of assimilation. As described by Behrendt66 : The colour of a child’s skin determined how the state would determine that child’s future (highlighting the racist aspects of this policy). Fairer-skinned Indigenous children were more likely to be adopted into white families. Darker-skinned children were more likely to be institutionalised or sent out to work. Fairer-skinned children also tended to be removed at younger ages than darker-skinned children.

This practice was repeated across Australia.

21.4.2.3

Outcomes

The enforced removal of countless children, from Aboriginal parents by the Child Welfare Department and their subsequent placement with approved white Caucasian foster parents or into institutional care was a disaster for the many thousands of Aboriginal families and the communities involved. It was probably also very stressful for the adopters whose care and dedication has never been in question. The very high incidence of placement breakdown in this context, when the children reached adolescence, testifies to the level of stress generated by transracial placements motivated by a misguided sense of eugenics.67

64 This

Convention was ratified by Australia in 1951. Swain, S., ‘Homes are Sought for these Children: Locating Adoption within the Australian Stolen Generations Narrative’, American Indian Quarterly, Vol. 37(1–2), 2013, pp. 203–217. 66 See, Behrendt, L., Achieving Social Justice, the Federation Press, Sydney, 2003 at p. 68. 67 See, for example, the report of the South Australian Aboriginal Child Care Agency which estimated that 95% of all ACCA adoption cases broke down and that: “ … this is reflected throughout the country … 65% of these breakdowns occurred in the adopted child’s teenage years when their adoptive parents were unable to cope with their problems of alcohol abuse, offending behaviour, drug abuse, depression, self-destructive behaviour, emotional stress and identity crisis”. 65 See,

21.4 Australia: The Indigenous or Aboriginal People

917

As has since become evident from the close statistical correlation between placements and subsequent rates of suicide, imprisonment etc., the programme was particularly disastrous for the children concerned. The severance of a generation of children from their community and cultural roots, coupled with their indoctrination into nonAboriginal cultural norms, caused serious dislocation to the continuance of traditional Aboriginal values and community cohesion.

21.4.2.4

The Bringing Them Home Report

An objective account of this policy, and its long-term effects in terms of the incidences of suicide, mental illness and family breakdown etc., are documented in the Bringing Them Home report by the Human Rights and Equal Opportunity Commission.68 The government’s response to the report was dismissive: refuting the claim that an entire generation were affected; and consigning the entire matter to history with the assertion that the policy had to be judged in accordance with the value context that prevailed at that time.69 However, this policy of forcibly removing children from their Aboriginal parents has, in recent years, resulted in court cases70 where applicants have claimed damages for the trauma they suffered. In 2008, the government finally acknowledged the damage caused by this policy and offered a formal apology to the Aboriginal people for the suffering it had caused.

21.4.3 Contemporary Adoption Law and the Aboriginal People For many Aboriginal communities the concept of adoption is itself rejected.71 Such communities and Aboriginal agencies hold the view that children are ‘free spirits’ and cannot be ‘owned’ by anyone. For government legislators a legacy of ‘the stolen generation’ debacle is that it has become taboo to consider extending the statutory 68 See,

the Human Rights and Equal Opportunity Commission, Bringing Them Home: A Guide to the Findings and Recommendations of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Australian Government Publishing Service, 1997 (https://www.austlii.edu.au/au/special/rsjlibrary/hreoc/stolen/). The factual basis of this report was memorably illustrated in the film The Rabbit Proof Fence. 69 See, the Federal Government submission to the Senate Legal and Constitutional References Committee on the Inquiry into the Stolen Generation, 1997. 70 See, for example, Kruger v. Commonwealth (1997) 190 CLR 1 and Cubillo v. Commonwealth (2000) 174 ALR 97. 71 See, Queensland Government, The Adoption Legislation Review: Public Consultation, Department of Families, 2003 which notes that: “A key theme in the consultation forums with Aboriginal and Torres Strait Islander peoples throughout the State was that adoption, as conceived in the Adoption of Children Act 1964, is not a culturally appropriate care option for Aboriginal and Torres Strait Islander children” at p. 3.

918

21 Indigenous Communities and Adoption

adoption process equally to aboriginal children; the earlier misguided political use of mandatory adoption for social engineering purposes negates the political possibility of now utilising it as a public service.72 Instead, although many Aboriginal children require permanent alternative care73 they are now mainly accommodated in foster care arrangements, remaining where possible in their communities, very few are adopted within the statutory process. Since 1994–95, 126 Aboriginal children have been adopted, with 41% adopted by Aboriginal Australians, and 59% adopted by other Australians. In 2018–19 no Aboriginal children were adopted through local adoption, but 12 were adopted through known child adoption (only 1 by Aboriginal adopters; all 12 adopted by either their step-parent, another relative, or their carer). As the Australian Institute of Health and Welfare comments “this was the highest number of finalised adoptions of Indigenous children in the past 25 years (equal to the number recorded in 1994–95”.74

21.4.3.1

The Statutory Adoption Framework and the Aboriginal People

The different legislatures of Australia, through their respective laws, now pointedly recognise the place that customary adoption holds within Aboriginal culture. The level of recognition provided includes the following75 : New South Wales The New South Wales Adoption Act 1965 allowed Aboriginal children to be adopted by Aboriginal couples living in customary marriage, otherwise it made no specific provision for the adoptive placement of such children. The legislative framework, provided by the Adoption Act 2000—which reiterates the definition of ‘Aboriginal’ as stated in the Aboriginal Land Rights Act 1983—was significantly updated in November 2018 by new provisions introducing non-consensual adoption providing grounds for dispensing with parental consent for adoption in circumstances of child abuse/neglect. Given that some 40% of the NSW child care population is comprised 72 See, for example, the views expressed by Dr. Bath, the Children’s Commissioner for the Northern Territories, on 5th May 2013: “We have an absurdly high threshold for intervention … Children who in any other jurisdiction would come under the purview of child protection authorities don’t in the Northern Territory, unless their situation is very extreme” at: https://www.news.com.au/nat ional/aboriginal-adoption-ignores-culture/story-fncynjr2-1226642417660. 73 Aboriginal children are over represented in the public child care system. In June 1998, for example, 14.2 Aboriginal children per 1000 aged between 0 and 17 years were in care; this was 5 times the rate for other children. 74 See, further, at: https://www.aihw.gov.au/getmedia/d0c1e19c-881a-4176-829c-fa37d62f8bae/ aihw-cws-71.pdf.aspx. 75 See, further, the Law Commission, Adoption and its Alternatives: A Different Approach and a New Framework, Wellington, 2000 at paras H7–H18. Also, see, Ban, P., ‘Slow Progress: The Legal Recognition of Torres Strait Islander Customary Adoption Practice’, 4(7) Indigenous Law Bulletin 11 (1997).

21.4 Australia: The Indigenous or Aboriginal People

919

of Aboriginal children, fears have been expressed that this may lead to another ‘stolen generation’.76 Victoria The Victorian Adoption Act 1984 recognises Aboriginal rights to self-management and self-determination. It states that: in consensual adoption, a birth parent has the right to declare a wish that their child be adopted within the Aboriginal community; in a non-consensual adoption, provisions approximating those of the Aboriginal and Torres Strait Islander Child Placement Principle must be applied. It also makes an adoption order conditional upon counselling by an Aboriginal agency being provided or offered and refused. South Australia The Adoption Act 1988 makes an adoption order in respect of an Aboriginal child conditional upon there being no preferable order available to the court. It states a presumption that adoption within the child’s Aboriginal community is in the child’s best interests and where this is not possible it provides a hierarchy of preferred placements. It permits a placement outside the Aboriginal community only in exceptional circumstances and when appropriate arrangements have been made to safeguard the child’s Aboriginal identity. Australian Capital Territory The Australian Capital Territory Adoption Act 1993 makes an adoption order conditional upon the court being satisfied that consideration has been given to the preference for Aboriginal adopters and to the importance of preserving contact between the child and the birth parents. Northern Territory The Adoption of Children Act 1995 allows adoption by couples living in an Aboriginal customary marriage for more than two years. It makes an adoption order conditional upon the court first being satisfied that every effort has been made to place the child within his or her extended family or with other suitable Aboriginal persons. Failing that, placement should be in geographical proximity to the child’s birth family and should be in keeping with parental wishes in relation to maintaining contact and cultural identity.

21.4.3.2

The Statutory Adoption Framework: The Child Placement Principle

In broad terms, statutory child care in an Aboriginal context77 is now underpinned by a fundamental principle that governs the relationship between the state and the family 76 See, further, at: https://www.theguardian.com/australia-news/2018/nov/23/adoption-without-par ental-consent-legalised-in-nsw. 77 By the late 1970s, Aboriginal and Islander Child Care Agencies were established throughout most of Australia to control child care services for Aboriginal people.

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21 Indigenous Communities and Adoption

on such matters. The Aboriginal and Torres Strait Islander Child Placement Principle, formulated at the time of the Human Rights and Equal Opportunity Commission inquiry into the ‘stolen generation’ controversy, was a response to the associated public concern regarding the interventionist policies of an earlier era. It was endorsed in the Council of Social Welfare Ministers’ National Minimum Principles in Adoption 1993 and by 1997 all states and territories had confirmed their adherence to it.78 This Principle states that when an Aboriginal child needs an alternative to parental care then the preferred placement is, in the following order of priority: within the child’s extended family; or within the child’s Aboriginal community or, failing that; with other Aboriginal people. (a)

Aboriginal placement

In New South Wales, the Aboriginal specific provisions of the Adoption Act 2000 are of particular relevance because of the leadership generally shown by that state legislature on adoption matters. The statute provides that when considering the placement of an Aboriginal child a person nominated by the child’s parents, extended family or kinship group, as recognised by the Aboriginal community to which the child belongs, or by that community, must be consulted (s 33) and the Aboriginal child placement principles are to be applied in placing a child (s 34). This is followed by a full statement of the Principle in s 35: (1)

(2)

General principle It is a principle to be applied in the administration of this Act that Aboriginal people should be given the opportunity to participate with as much selfdetermination as possible in decisions relating to the placement for adoption of Aboriginal children (which is a concept that is absent in customary Aboriginal child care arrangements). The general order for placement. The Aboriginal child placement principles are as follows: (a)

(b)

(c)

The first preference for placement of an Aboriginal child is for the child to be placed for adoption with a prospective adoptive parent or parents belonging to the Aboriginal community, or one of the communities, to which the birth parent or birth parents of the child belongs. If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a), the child is to be placed with a prospective adoptive parent or parents from another Aboriginal community. If it is not practicable or in the best interests of the child for the child to be placed in accordance with paragraph (a) or (b), the child is to be placed with a non-Aboriginal prospective adoptive parent or parents.

78 The Principle has received specific legislative endorsement in the Australian Capital Territory, South Australia and in Victoria. Note the resonance with US law: the Indian Child Welfare Act 1978 limits placement to the child’s family, members of the tribe or other Native American families.

21.4 Australia: The Indigenous or Aboriginal People

(3)

Placement of child with person who is not Aboriginal. An Aboriginal child is not to be placed with a non-Aboriginal prospective adoptive parent unless the Court is satisfied that the prospective adoptive parent: (a) (b)

(c)

(4)

(5)

921

has the capacity to assist the child to develop a healthy and positive cultural identity, and has knowledge of or is willing to learn about, and teach the child about, the child’s Aboriginal heritage and to foster links with that heritage in the child’s upbringing, and has the capacity to help the child if the child encounters racism or discrimination in the wider community, and that the Aboriginal child placement principles have been properly applied.79

Child with one Aboriginal parent and one non-Aboriginal parent If a child has one Aboriginal parent and one non-Aboriginal parent, the child may be placed with the person with whom the best interests of the child will be served having regard to the objects of this Act. If a child to whom subsection (4) applies: (a)

(b)

is placed with a person who is not within an Aboriginal family or community, an adoption plan must provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs, or is placed with a person who is within an Aboriginal community, an adoption plan must provide for the child to have the opportunity to develop an identity with the non-Aboriginal community to which the child belongs.

Moreover, s 36 adds that “an Aboriginal child is not to be placed for adoption unless the Director-General is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child”. Consequently, the local Aboriginal community, organisations, and Aboriginal professionals in adoption agencies are now automatically engaged when the issue of non-parental care for an Aboriginal child arises. This has had the net effect of ensuring that a culture specific form of adoption for the Aboriginal and Torres Strait Islander communities is now largely in place throughout Australia but, as in New South Wales, it has been most influential when given effect by legislation.80 In Queensland’s adoption law review81 the Aboriginal respondents to the government’s discussion document acknowledged that circumstances could arise requiring 79 Note: Placement with a non-Aboriginal prospective adoptive parent requires an application to the Court for a preliminary hearing-see section 80. 80 The Report of the New South Wales Law Reform Commission (1997) examined the effectiveness of the Principle in placing Aboriginal children with Aboriginal people for foster care and adoption in all states and territories. It concluded that the Principle most strongly influences practice where it is incorporated into statute law. 81 See, Queensland Government, The Report: Public Consultation on the Review of the Adoption of Children Act 1964, Department of Families, 2003.

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the permanent placement of an Aboriginal child in accordance with the provisions of the statutory adoption process. In such circumstances it suggested that the assessment of Aboriginal prospective adopters should be undertaken by or with Aboriginal assessors and should address matters such as82 : • The prospective adoptive parents’ links with the particular child’s community and where this has not been established, the parents’ links with another Aboriginal or Torres Strait Islander community. • Prospective adoptive parents’ capacity to assist a child develop or maintain his or her cultural identity. Thereafter, during the course of the placement, the continued involvement of representatives from the relevant Aboriginal community and agencies would ensure that the child’s links with his or her culture are maintained. (b)

Non-Aboriginal placement

In the above adoption law review the Aboriginal respondents accepted that there may be occasions when an Aboriginal child will have to be placed for adoption with a non-Aboriginal family. In such circumstances it was suggested that an Aboriginal counselling service should be offered to the birth parent/s before and after placement. It was further suggested that Aboriginal agencies should be required to approve any such placement and that an adoption plan should be drawn up to protect the cultural identity of the child and maintain links with his or her community of origin. This plan should include: • A genealogical chart of the child’s tribes/clans (mother and father) and • All relevant cultural information such as kin names, clan groups, dreamings and stories.83 21.4.3.3

The Statutory Adoption Framework: The Child Placement Principle; Current Practice

There is a perception that in practice the Child Placement Principle can effectively be cancelled out by the endemic dysfunction that prevails in some Aboriginal communities. Implementation has proven difficult in circumstances where a child or children are exposed to systemic domestic violence not just in their family home but extensively within their kinship network. Ironically, and with a potent symbolism, it was Australia’s first indigenous state or territory leader who broke ranks with government orthodoxy to confront this issue. In May 2013, the Northern Territory Chief Minister Adam Giles, announced his support for a policy to consider preferred adoption placements of Aboriginal children in non-Aboriginal families. Alcohol related domestic violence and child abuse in some Aboriginal communities were perceived by some 82 Ibid., 83 Ibid.,

at pp. 19–20. at p. 17.

21.4 Australia: The Indigenous or Aboriginal People

923

professionals to be so endemic that nothing short of wholly removing the children affected from those communities would guarantee their safety.84 Interestingly, New South Wales has taken an initiative that resonates strongly with established U.K. practice by becoming the first Australian jurisdiction where child protection authorities are required to consider adoption before placing a vulnerable child in foster care (see, further, Sect. 10.2.2.1). In this state Aboriginal children are hugely over-represented in the public child welfare system and currently constitute more than a third of the 18,000 in out-of-home or foster care. There are fears that Aboriginal children may come to be correspondingly disproportionately represented in future nonconsensual adoptions from the care system. These fears have been acknowledged by the Community Services Minister: “of course for Aboriginal children we would prefer kinship-care or guardianship, understanding the very unhappy history that Aboriginal children have with being removed from their families.”85

21.4.3.4

Customary Adoption

The Aboriginal People view child rearing as a communal responsibility with no particular rights or duties reserved to birth parents. There is thus no natural cultural context for the practice of adoption. Customary adoption involves the placement of a child within the extended family group; only in exceptional circumstances is the child placed with ‘strangers’ or non-relatives. The birth parents maintain ongoing contact with their child and with the adopters throughout the placement. All information relating to the adoption is openly shared among the parties and among the extended family circle. This form of adoption tends to be bloodline specific and serves to strengthen and differentiate the kinship structures of tribal groups. (a)

The Torres Strait Island community

The Torres Strait Islanders have developed a somewhat different variation of customary adoption which resembles the foster care practice of western nations. The placement is often short-term and made with another related family, it may or may not extend for the duration of childhood and the child may return intermittently to the birth parents. As has been explained, some of the reasons that may underline customary adoption for Torres Strait Islanders are to86 :

84 This policy and the minister’s support for it have been denounced by some as threatening to initiate a ‘new stolen generation’. See, further, at: https://www.telegraph.co.uk/news/worldnews/ australiaandthepacific/australia/10055771/Aboriginal-adoption-plan-prompts-new-fears-of-a-sto len-generation.html. 85 See, the Community Services Minister Pru Goward interview on ABC Radio (Thursday, March 20th 2014), at: https://www.theaustralian.com.au/news/latest-news/no-forced-adoption-for-aborig inal-children/story-fn3dxiwe-1226860324697. 86 See, Queensland Studies Authority, Aboriginal and Torres Strait Islanders Studies Handbook, Brisbane 2010, p. 16, at: https://www.qsa.qld.edu.au/downloads/senior/snr_atsi_10_handbook.pdf.

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• Maintain family bloodlines and/or family name by adopting a child from a blood relative • Give a childless family member (married or otherwise) an opportunity to raise their own child • Strengthen bonds between families • Distribute boys and girls evenly between families who may only have children of one sex • Replace a child who has been adopted out to another family • Provide company and care for an older relative. This practice, known as ‘Kupai Omasker’, has been explained in the Bringing Them Home report as a permanent transfer of parenting responsibility which “serves to entrench reciprocal obligations within families thereby contributing to social stability”.87 It bears a strong similarity to some forms of adoption traditionally practiced in countries with homogenous cultures such as Ireland (see, further, Sect. 1.3.3). It is usually confined to kinship (ie determined by blood-link) but in recent years has extended to include relatives by marriage and even close family friends. It lies outside the legislative framework, is a form of customary adoption and is not recognised in Australian law. The difference between adoption as practiced by Torres Strait Islanders and statutory adoption as practiced elsewhere in Australia, is explained in the report by the New South Wales Law Reform Commission88 : Adoption in Torres Strait Islander communities involves the permanent transfer of parental rights to adoptive parents. Further, there is a reluctance to tell children of their adoptive status. In contrast to Australian adoption law, however, adoption is almost always within the same blood lines, with members of the extended family or otherwise with close friends. Adoptive parents may be single or married, and may already have children of their own. Torres Strait Islander adoption also differs from Australian adoption in that, while there is a permanent transfer of rights, the adoption is characterized by notions of reciprocity and obligation.

The difference between customary adoption as practiced by Aboriginal People and by Torres Strait Islanders has been summarised by Marshall and McDonald as follows89 : Customary adoption is accepted within Torres Strait Islander communities, and often arranged within families to preserve the blood line and family heritage and customs. It is similar to western adoption practice in its permanency but is almost always within the extended family. Customary adoption is not usually arranged by them outside their own culture. For Aboriginal peoples, however, adoption is a foreign and altogether alien concept. It would not have been conceived of in a functioning Aboriginal community.

87 See,

the Human Rights and Equal Opportunity Commission, Bringing Them Home, op cit. New South Wales Law Reform Commission, Research Report 81, (1997) at chapter 9. 89 See, Marshall and McDonald, op cit at p 148. 88 See,

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By and large, Aboriginal communities are generally no longer independent and self-sustaining entities. The contemporary partial subjection of customary practice to the statutory adoption process90 is only one small part of the cultural concessions made by a race that had managed its own affairs for tens of thousands of years before the arrival of white Caucasians.

21.5 New Zealand: The M¯aori M¯aori are the indigenous people of New Zealand. When Europeans first arrived they found a fully established society, developed over a thousand years, in possession of the islands.

21.5.1 Background Initially, the ‘newly discovered’ territory of New Zealand was administered by the colonial authorities in the Australian Colony of New South Wales. From the late eighteenth century, the M¯aori experienced the impact of successive but transient groups of Europeans who brought different kinds of influences. Not until the late 1830s did the islands become more permanently settled by non-indigenous people.

21.5.1.1

The Treaty of Waitangi

This Treaty was the mechanism by which the British asserted sovereignty over New Zealand. It was signed on 6th February 1840 by Captain Hobson, the LieutenantGovernor, and by many of the M¯aori chiefs.91 The Treaty and the introduction of British rule was followed by settlers forcefully acquiring M¯aori land resulting in armed conflict especially in the 1860s, leading to generations of grievances, agitation, negotiations, inquiries and some settlements, and ultimately to the Treaty of Waitangi Act 1975 which established the Waitangi Tribunal. The Tribunal entertains claims by M¯aori that they have been prejudicially affected by conduct on the part of the Crown which was inconsistent with the principles of the Waitangi Treaty. The Treaty of Waitangi is the founding constitutional document in New Zealand with its status as a compact between the Crown and M¯aori. It promised that: • M¯aori cultural values would be respected and given effect (Article 11); and • M¯aori would participate fully in the new society of New Zealand and its institutions (Article 11 reinforced by the Preamble to the Treaty). 90 See,

Lara v. Marley [2003] FamCA 1393. retranslation of the M¯aori text of the whole Treaty can be found in the judgment of Cooke P in New Zealand M¯aori Council v. Attorney General [1987] 1 NZLR 641, 662–3. 91 A

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The Treaty and the Constitution are best viewed as a composite set of basic principles that direct how all New Zealanders, M¯aori and non-M¯aori, are to be governed. However, as has been said: “the failure to acknowledge M¯aori status as tangata whenua, once the Treaty of Waitangi was signed is perhaps at the root of subsequent conflict and misunderstandings”.92

21.5.1.2

M¯aori Population

The M¯aori currently total some 775,836 persons constituting approximately 16.5% of the population of New Zealand93 and are expected to represent nearly 20% of the population by the year 2031. The median age for M¯aori is around 22 years and 55% of the population is under 25 years compared with only 34.6% of non-M¯aori. More than half of all M¯aori live in the northern part of North Island, mostly around Auckland (46%). In general, they have lower incomes and larger households than non-M¯aori and are more likely to be living in one-parent families. Relative to the nonM¯aori, they are disadvantaged by age, geographical distribution, by low standards of education and skills and by levels of unemployment.94 As a consequence of their status as Treaty signatories, this indigenous group has been able to preserve its cultural identity and coherence while, in recent years, it has exercised considerable influence over government policy in relation to issues affecting M¯aori interests.

21.5.1.3

M¯aori Culture

The indigenous people of New Zealand have a well-developed communal culture. The critical organisational construct is the tribe, an extended kinship organisation comprising sub-tribes and extended family groups. The tribal identity was and is the iwi. The tribal institutions of wh¯anau (extended family or kin group), hap¯u (subtribe), hui (meeting of the iwi) and marae (ceremonial centre) remain key features of contemporary M¯aori culture. M¯aori belong to diverse communities: some identify with a particular iwi, hap¯u and wh¯anau irrespective of where they reside; others identify with their tribal connections but do not know their ancestry or whakapapa; while others prefer to identify simply as M¯aori.

92 See,

Law Commission, Report 53, Justice – the Experience of Maori Women, Wellington, 1999; ‘tangata whenua’ literally means ‘people of the land’. 93 According to the 2018 national census. 94 See, Statistics of New Zealand, Census of Population and Dwellings, Wellington, 1996.

21.5 New Zealand: The M¯aori

21.5.1.4

927

Customary Adoption or Wh¯angai

For many centuries the M¯aori have had a practice known as wh¯angai or atawhai95 whereby a child is simply given to relatives for them to raise: these children were known as tamariki wh¯angai or atawhai; ‘atawhai’ refering to a fostered child and ‘wh¯angai’ to one that has been adopted. There was no secrecy: in most cases they knew how they were related to everyone; they knew their birth parents and had contact with them. Wh¯angai has few of the legal characteristics of adoption in western societies, is not recognised within the statutory adoption framework of New Zealand but is nonetheless still in use by the M¯aori. Generally, a wh¯angai placement was practiced within a hap¯u or iwi as a means of strengthening relations and had the advantage of ensuring that land rights were consolidated within the tribe; whakapapa or bloodlines being of central importance to M¯aori relationships; though placements were sometimes made with relatives by marriage. Because the severing of blood-ties was regarded as a betrayal of origins, a child from outside the wh¯anau, hap¯u and iwi would seldom be adopted. There was no concept of ‘ownership’ or of ‘property rights’ in children; Maori children may know many homes, but only one wh¯anau. Adoption by ‘strangers’, the foundation stone of practice in western societies, has been deliberately avoided in M¯aori culture.

21.5.2 Legislative History Initially, placements for the purpose of adoption were made informally, without recourse to law, by both M¯aori and non-M¯aori. Adoption in New Zealand, as a formal statutory process, commenced with the Adoption Act 1881.

21.5.2.1

The Adoption of Children Act 1895

This legislation, building on the 1881 Act, introduced a process whereby any person in New Zealand could apply for an adoption order. The M¯aori were not required to use this statutory proceeding and did not do so, preferring instead to rely on wh¯angai placements which were judicially recognised at the turn of the nineteenth century96 : The right of the M¯aori to adopt according to his own custom is not interfered with by giving him a further right to adopt in the form and under the conditions provided by the Act.

However, the M¯aori approach to the statutory adoption process changed somewhat with the introduction of the Native Land Claims Adjustment and Laws Amendment 95 See, for example, Durie-Hall, D., and Metge, Dame J., ‘Kua Tutu Te Puehu, Kia Mau Maori Aspirations and Family Law’ in Henaghan, M., and Atkin W. (eds.) Family Law Policy in New Zealand, Oxford University Press, Oxford, 1992, pp. 54–82. 96 See, Hineiti Rirerire Arani v Public Trustee (1919) NZPCCI, per Phillimore LJ.

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Act in 1901. This directed that where M¯aori land disputes involved the claims of an adopted person then that person would have to produce evidence of their adoption in the form of a recorded entry in the register of the Native Land Court. Wh¯angai placements, often made to secure or consolidate title to land, frequently led to court disputes. Adoption legislation provided a means for registering an adoption and gave the M¯aori an incentive to seek formal recognition of a wh¯angai placement in case of a later necessity to produce such evidence in any land dispute proceedings.

21.5.2.2

The Native Land Act 1909

M¯aori compliance with the statutory adoption process was later enforced by the 1909 Act which sought to prohibit the use of wh¯angai. The policy driving this legislation was quite explicit97 : By this Bill, adoption by Native custom is abolished, and adoption by order of the Native Land Court is substituted.

Adoption orders were to be made by the Native Land Court in respect of M¯aori children while the same orders were made in Magistrates’ courts (now the District court or the Family court) in respect of non-M¯aori children. The proceedings, however, were different: in the Native Land Court only M¯aori children could be adopted, the hearing took place in open court and the proceedings were published in the Kahiti (M¯aori Gazette) and the New Zealand Gazette; in the Magistrates’ court the hearing was in camera and the proceedings were not published. Since 1962 all statutory adoption proceedings, in respect of M¯aori and non-M¯aori children, have been held in Magistrates’ courts. This policy was revised in 1927, when recognition was given to customary adoptions made before 1902, but only to be reinstated in 1931. From 1932 onwards a child subject to a wh¯angai placement was denied recognition in law as an adopted child; the politics of the 1909 Act prevailed to displace customary adoption by the statutory process. Contemporary adoption related law began with the Adoption Act 1955 which declared that ‘no person shall be capable of adopting a child in accordance with M¯aori custom and with certain exceptions, no adoption is of any force or effect, whether in respect of intestate succession to M¯aori land or otherwise.’ In the words of the Law Commission98 : The present Adoption Act confirms that M¯aori customary adoptions made after the introduction of the Native Land Act 1909 have no legal effect beyond the recognition accorded to such placements by Te Ture Whenua M¯aori Act 1993.

97 Sir

John Salmond’s notes on the Bill as cited in the Law Commission report, op cit, at para 185. the Law Commission report, op cit, at para 190. See, also, Whittaker v. Maori Land Court [1996] NZ FLR 163. 98 See,

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This approach reflected the assimilationist policies of the period by largely ignoring M¯aori culture and values. Legislation such as the Marriage Act 1955, the Adoption Act 1955, the Guardianship Act 1968 and the Matrimonial Property Act 1976 all directly or indirectly ignored M¯aori values relating to the structure and constitution of the family.99 In most cases, as has been noted, the statutes had been “formulated and passed on the basis of commitment to P¯akeh¯a values and objectives, without regard to their compatibility with tikanga M¯aori”, resulting in M¯aori family forms and values being placed under great stress.100 The 1955 Act entrenched the European model of ‘closed’ adoption: a clean break from the child’s birth family, with anonymity for the parties concerned, was to be the preferred and legally enforced approach. Its effects were ameliorated somewhat by the Te Ture Whenua M¯aori Act 1993 which made provision for wh¯angai to succeed to land, and defined wh¯angai as ‘a person adopted in accordance with tikanga M¯aori’ (M¯aori customary practice). The law has since been supplemented by other legislation including the Adult Adoption Information Act 1985, the Adoption Act 1995, the Adoption (Intercountry) Act 1997, and the Care of Children Act 2004 (see, further, Chap. 11).

21.5.3 Contemporary Adoption Law and the M¯aori The current statutory framework for adoption is intended for use by M¯aori and nonM¯aori applicants equally, though guardianship has always been more acceptable to the former. Alongside this statutory process, quite separate and independent from it, the M¯aori practice of wh¯angai or customary adoption continues to operate.

21.5.3.1

The Statutory Adoption Framework and the M¯aori

The statutory adoption process remains as defined by the Adoption Act 1955. Other domestic legislation such as the Adult Information Act 1985 and the Adoption (Intercountry) Act 1997 are also relevant and supplemented by certain obligations arising under international Conventions. Adoption occurs within a statutory child care context governed by the Children Young Persons and Their Families Act 1989 and the Care of Children Act 2004. The former incorporates the family group conference as a decision-making mechanism for determining appropriate care arrangements: decisions can be challenged by Oranga Tamariki (formerly, Child, Youth and Family services) a statutory body, but this seldom occurs; indeed, intervention by that body is generally focused on supporting kinship care. The statutory framework

99 See,

Durie-Hall, D., and Metge, Dame J., ‘Kua Tutu Te Puehu, Kia Mau Maori Aspirations and Family Law’ op cit pp. 54 and 59. 100 Ibid., at p. 79.

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largely conforms to the traditional ‘closed’ model of adoption that was typically characteristic of countries such as the U.K. In tandem with and in contrast to the statutory framework, the M¯aori practice of wh¯angai has allowed New Zealand to pioneer the most ‘open’ adoption practice in the western world.101 There is every reason to believe that the development of ‘openness’ within the modern statutory process of countries such as the U.K., is directly linked to the lessons learned from exposure to the age old M¯aori practice of customary adoption. (a)

M¯aori placement

The 1989 Act rests on the assumption that children are best raised within their own cultural context, with and by their own people. It allows tribal elders to take an active leadership role in family group discussions and requires professional workers to observe—or at least not to ignore—cultural preferences and custom.102 In recent years judicial notice has been taken of the importance of the M¯aori cultural context when determining issues of placement. For example, in the course of hearing an appeal by a grandmother against a decision by the Family Court to refuse her custody of her granddaughter, the court held that103 : The welfare of the child can never be considered in isolation. The cultural background of a child is significant and the special position of a child within a M¯aori wh¯anau, importing as it does not only cultural concepts but also concepts which are spiritual and which relate to the ancestral relationships and position of the child, must be kept in the forefront of the mind of those persons charged with the obligation of making decisions as to the future of the child.

However, the court added: … the child’s interests will not be subordinated to the interests of any member of the family or wh¯anau, nor will the interests of the child be subordinated to those of the wh¯anau as a whole.

The placement of a M¯aori child with M¯aori prospective adopters is facilitated by a M¯aori community representative appointed under the M¯aori Community Development Act 1962. (b)

Non-M¯aori placement

Section 321 of the Children Young Persons and Their Families Act 1989 requires the court to have regard to the principle that, where practicable, the relationship between the child or young person and his or her family, wh¯anau, hap¯u, iwi, family groups and community group must be maintained and strengthened. There can be little doubt, 101 See, for example, Ryburn, M. who has described New Zealand as “leading western practice with

respect to openness” (1994). Law Commission, Report 53, Justice – the Experience of Maori Women, op cit, at para 90. Also, see, Ernst, ‘Whanau Knows Best: Kinship Care in New Zealand’, in Hegar, R.L. and Scannapieco, M., Kinship Foster Care: Policy, Practice and Research, Oxford University Press, 1999. 103 See, B v. Director-General of Social Welfare, [1997] NZFLR 642, per Gallen J and Goddard J. 102 See,

21.5 New Zealand: The M¯aori

931

however, that in practice this will be interpreted and applied subject to the overriding requirements of the paramountcy principle as stated in the Care of Children Act 2004, s 4. This in fact was clearly illustrated by the approach of the judiciary in Temple v. Barr and Holborn104 which concerned a birth mother who had given her daughter, of M¯aori and Cook Island M¯aori descent, to a P¯akeh¯a (non-M¯aori) couple when she was just hours old. She later changed her mind and began a legal challenge to reclaim her child, with the support of the biological father who wanted the girl brought up in her own culture. The birth parents had three other children but were neither married nor in a stable relationship, and indeed did not live together, but had an ongoing if intermittent and occasionally violent relationship. For various reasons, although adoption proceedings were intended, no such application was submitted by the couple with care responsibility, instead two months after the birth they sought and obtained an interim parenting order and a guardianship order, with birth parent consent, which included provision for the latter’s contact with the child. When, at first instance, the birth parents raised their challenge in the Family Court, Mill J focused on evidence that the child had formed a secure attachment to her carers and considered that this had to be weighed against the issues raised over her identity and cultural belonging. On balance he concluded that the child would develop securely—emotionally and psychologically—if she remained with her carers. The appeal, heard by Justice Warwick Gendall, rested essentially on a claim that leaving the child with her carers would be in breach of her best interests as it would prevent the development of her cultural, biological and ancestral identities: she would be unable to develop an authentic sense of ‘who she is’; being of M¯aori race and culture she should not be brought up by European parents. It was asserted that because the decision at first instance failed to deal with the issue of “the cultural divide between the parties” it therefore “failed to protect the child from psychological abuse”. Nonetheless the High Court, in dismissing the appeal, found that the best interests test indicated that the now two-year-old girl should remain with her carers and held that the biological parents could not insist that their daughter be raised in a M¯aori family. In an addendum to his judgment, Justice Warwick Gendall offered the following guidance: It is, and will become more, important for (the carers) to recognize and actively encourage the value of (the child) having an assured place in her wh¯anau, hap¯u, and iwi, with such access to M¯aori language, knowledge and tikanga. Those relationships need to be preserved and strengthened. I have referred to children belonging to themselves, not to parents, biological or otherwise. Indeed the idea of possession and exclusion, separately or in association, outrage M¯aori sensibilities. Children belong not only to their parents but also to the wh¯anau, and beyond that to the hap¯u and iwi … As taonga, children are to be treated with respect, responsibility, love and care by all members of the group.105

104 Also

cited as KT v. L and RB and Anor HC WN CIV-2010-485-000561 [24 August 2010]. Metger, J. and Ruru, J., ‘Maori Aspirations and Family Law Policy’, in Henaghan, M. and Atkin, B., (eds) Family Law Policy in New Zealand (3rded), Lexis Nexis, Wellington, 2007 at p. 52.

105 Citing

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While emphasising that any arrangement was not necessarily permanent he stated that the court had to consider what was best for the child in the present circumstances. In conclusion he reiterated that the carers had a responsibility to ensure that the child be brought up with a knowledge of her cultural heritage as a M¯aori, especially language and tikanga, but also and more specifically, of the tribal history and whakapapa of her birth parents and her heritage.

21.5.3.2

Legal Effects of Statutory Adoption

The issue of an adoption order has the same legal effect regardless of race: the child assumes the name of the adoptive parents; he or she inherits from the estate of an intestate adopter (though will also retain inheritance rights in respect of birth parents); and all legal ties to the birth parents are abolished. Access to identifying information is controlled by the provisions of the Adult Information Act 1985.

21.5.3.3

Wh¯angai or Customary Adoption

Wh¯angai is characterised by openness, placement within the family and whakapapa (identity within the context of family and culture) and whanaungatanga (the centrality of relationships to the M¯aori way of life). It does not require any particular formalities, is a matter of public knowledge and is made with the express or tacit approval of the wh¯anau or hap¯u (family or community group). As has been explained106 : M¯aori customary adoption does not involve secrecy … The child has two sets of parents and recognises his or her relationship to them both. The child is aware of its birth parents and other family members and usually maintains contact with them. Once a child is accepted in this way, the adopter and child will frequently regard each other as parent and child for all significant purposes, as will the other members of the wh¯anau … placements are not necessarily permanent and it is not uncommon for such a child to later return to the birth parents.

21.5.3.4

Legal Effects of Wh¯angai

The Te Ture Whenua M¯aori Act 1993 formally defined and established the succession rights of wh¯angai and affirmed the legal standing of the ‘tikanga M¯aori’ (a term that incorporates custom, values, traditional behaviour and philosophy).107 The blood link is important to M¯aori culture and legal relationships, such as wh¯angai, are not allowed to terminate or hide blood relationships or obscure cultural identity. In 1997 106 See,

Law Commission, Adoption and its Alternatives: A Different Approach and a New Framework, Wellington, 2000 at para 180. 107 See, In re Tukua and Maketu C2B Block (10th March 2000, 116 Otorohanga MB 81) Carter J for a determination of whangai status.

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M¯aori academic Hirini Mead proposed that the following fundamental rights should be recognized and adhered to in respect of M¯aori children subject to the process of adoption108 : • the right to know about the circumstances of the adoption • the right to know one’s whakapapa (genealogy) • the right of whanaungatanga (kinship)—to build a relationship with the hap¯u or iwi, and • the right of cultural integrity—a home within the same cultural group, M¯aori with M¯aori, should be preferred. (a)

Parental rights

In M¯aori culture a child is not viewed as the possession of parents but rather as the taonga (treasure) of the wh¯anau, hap¯u, and iwi.109 M¯aori customary adoption does not, therefore, subscribe to the proposition, central to statutory adoption law as it traditionally evolved in western societies—and which continues to be entrenched in the 1955 Act—that the adopted child is legally severed from his or her birth parents and thereafter is to be treated in law as though born to the adopters ‘in lawful wedlock’. As the Law Commission has pointed out110 : The fundamental difference in the way which the law, on the one hand, and M¯aori on the other, regarded adoption was that the law’s adoption policy focused on the relationships which were created and the perceived advantages for members of the new family. No attention was given to the relationship between child and birth parent which was destroyed and the impact upon the child.

(b)

Lineage

As mentioned above, bloodlines are important to the Mäori: ‘taonga’ is to be found in the integrity of species and bloodlines; the ‘whenua’ as it was known to their spirits and ancestors and embodied in legend should be respected; the particular ‘wairua’ or spirit of all living things must be protected. Such beliefs were weighed by the judiciary in Bleakley v. Environmental Risk Management Authority,111 where the High Court recognised that the Treaty of Waitangi imposed a duty on the Crown to actively protect taonga which “embraces the metaphysical and intangible (e.g., beliefs or legends) as much as it does the physical and intangible (e.g. a treasured carving or mere)”. The case concerned the right of a government research facility to 108 As

cited in Keane, B., ‘Wh¯angai—customary fostering and adoption—Wh¯angai in modern times’, Te Ara—The Encyclopedia of New Zealand, updated 8-Apr-14. See, further, at: https:// www.teara.govt.nz/en/whangai-customary-fostering-and-adoption/page-4. 109 See, Durie-Hall and Metge, ‘Kua Tutu Te Puehu, Kia Mau, Maori Aspirations and Family Law’ in Henaghen and Atkin (eds.) Family Law Policy in New Zealand, Oxford University Press, Auckland, 1992. 110 See, Law Commission, Report 53, Justice - the Experiences of Maori Women, Wellington, 1999, at para 83 citing Griffith, K.C., New Zealand Adoption History and Practice, Social and Legal 1840–1996, at para 9. 111 [2001] 3 NZLR 213.

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genetically modify certain Fresian cows, so as to allow milk production to include a human protein, a proposition which met with vigorous opposition from Mäori, and others, who objected to any such mixing of human and animal genetic material. In particular, the Ngati Wairere Mäori community claimed that any alteration of ‘whakapapa’ (genealogy) by mixing the genetic makeup of species would be deeply offensive and contrary to their ‘tikanga’ (custom); these were intangible taonga, any interference with which would constitute a breach of the Treaty of Waitangi. The court concluded that the relevant authority was entitled to take the view that the only way to protect such taonga would be to refuse approval for the proposed project but, in the particular circumstances of this case, it was also entitled to regard the duty to protect as outweighed by broader considerations. While the court upheld the earlier decision to grant approval, notwithstanding Mäori objections, the case illustrates the latter’s deep commitment to maintaining the integrity of bloodlines and goes some way towards explaining their resistance to the ‘clean break’ statutory model of adoption. (c)

Succession rights

M¯aori customary law varies as to whether wh¯angai children may inherit from their adopters. Some iwi allow a wh¯angai child to inherit only if the child is a blood relative. Wh¯angai children can only succeed under the will of their adopting parent or by court order in the case of intestacy. The M¯aori Land Court is able to make provision for a wh¯angai child when distributing an estate under Te Ture Whenua M¯aori Act 1993 and may determine whether a person is to be recognised as the wh¯angai of a deceased landowner. When it decides in favour of such recognition the Court may order that wh¯angai’s entitlement should be the same as if he or she was the birth child of the deceased. Where it decides against then it may order that the wh¯angai either has no such entitlement or is entitled to a lesser extent that would have been the case if the deceased had been their birth parent. Interestingly, there is provision for a European wh¯angai adopted by M¯aoris to inherit M¯aori land.

21.6 The US: Native Americans/Indians In the US, as in the other countries profiled in this chapter, a long history of government policy aimed at containing and assimilating the indigenous people—American Indian/Alaska Native (AI/AN)—came to an end in the latter half of the twentieth century. Until then, war, disease and confinement to reservations had ravaged the once proud and resilient tribes that had occupied the land for countless generations.

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21.6.1 Background Tribal independence was also greatly weakened by the enforced residential schools programme for Indian children, established in the late 19th and mid twentieth centuries. The schools programme represented a key component in the federal policy of dealing with the marginalisation of Native Americans by assimilating them into mainstream American society; starting with the removal, cultural re-education and absorption of their children. Many tens of thousands of Indian children spent years away from their families and tribes, being exposed to cultural indoctrination designed to immerse them in the language, basic numeracy/skills and Christian morality of their white Caucasian teachers and to shed their inherited cultural identity including their names, language, clothing, way of life etc. As in other common law countries— including Australia, Canada and Ireland—this use of residential schools to implement a wholly misguided government assimilationist policy, left children alienated from their communities, often abused, and resulted in a lengthy period of inter-generational trauma that Indigenous People in many countries are still trying to work through. In the mid-twentieth century another misguided federal initiative—the Indian Adoption Project—added to the erosion of Indian cultural cohesion. This partnership between federal and private agencies used adoption to further the crude political objective of racial/cultural assimilation. Driven by a conviction that, “no Indian child who can benefit from adoption should be deprived of that option,” the Project targeted AI/AN children for adoption by non-Indian families and succeeded in arranging almost 400 such adoptions between 1958 and 1967. The adoptions bypassed tribal authorities to take children from their families and tribes in 16 western states and transferred them to white Caucasian adopters in the mid-west and eastern states.

21.6.1.1

The Indian Child Welfare Act 1978 (ICWA)

This statute was a milestone marking a change of federal policy towards Native Americans/Indians, a belated recognition of the harm done and an attempt to draw a line and make a fresh start with protective and culturally affirmative legislation; an approach further developed on a federal basis by the Family First Prevention Services Act, which introduced broad changes to the US foster care system. It would be a mistake to underestimate the significance of international conventions—in particular UNDRIP, ICRED and the ICCPR—in prompting this about turn (see, further, Sect. 4.4). Then as now, government at federal and state levels continued to be gravely concerned at the disproportionate representation of indigenous children in the public care system and by the seemingly inevitable progression to similar over representation in the prison system. Much importance was attached to the dislocation suffered by the very many children uprooted from their cultural and familial context, to be fostered with non-indigenous families, and for the coherence and integrity of tribal

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structures that had to bear the shame and loss of their children. The ICWA represented a legislative intent to reconstruct the cultural Indian family practices while fostering and strengthening a sense of connection between the Indian child and the Indian tribe.112 Responsibility for Indian children residing or domiciled within tribal land, and for Indian children eligible for tribal membership, was to be exclusively vested in the tribes.113 Should state intervention on grounds of child abuse or neglect result in a court order for the removal of parental rights, the relevant tribal authorities must be immediately notified so that they may consider: whether an appropriate tribal placement is available and suitable for the needs of that particular child; or whether the statutory authorities should make alternative arrangements—including a possible non-Indian adoption placement. Among the problems that flowed from this federal initiative was that it was not uniformly interpreted and applied: 12 states enacted different versions of the statute, resulting in different judicial rulings on the same issues across the country. The National Indian Child Welfare Association has drawn attention to failings in the implementation of the ICWA. It claims that “the most critical issues of noncompliance involve: (1) lack of regular oversight of ICWA implementation; (2) AI/AN children not being identified early in child welfare proceedings; (3) tribes not receiving early and proper notification of child welfare proceedings involving their member children and families; (4) lack of placement homes that reflect the preferences defined within ICWA; (5) limited training and support for state and private agency staff to develop knowledge and skills in implementing ICWA, and (6) inadequate resources for tribal child welfare agencies to participate and support their state and private agency counterparts”.114

21.6.1.2

American Indian/Alaska Native (AI/AN)

According to the US Census Bureau, as of 2018, the American Indian and Alaska Native population comprised some 6.8 million people in 573 federally recognised Indian tribes located in 34 states but many AI/AN people live away from tribes and can be found in urban and rural settings across the US. Family matters, including child protection and family support, are most usually seen as internal issues—aspects of tribal sovereignty—to be addressed by tribal welfare systems and tribal courts.

112 See, Halverson, K., et al., ‘Culture Loss: American Indian Family Disruption, Urbanization, and

the Indian Child Welfare Act’, CHILD WELFARE LEAGUE AM., Vol. 81(2), (2004) at pp. 319, 324. 113 H.R. Res. 95–1386, at 9 (1978), as reprinted in 1978 U.S.C.C.A.N. 7530, 7531 (cited in Bual, H., op cit, at p. 274; n. 21). 114 See, further, at: https://www.nicwa.org/wp-content/uploads/2016/11/Improving-the-Well-beingof-American-Indian-and-Alaska-Native-Children-and-Families.pdf.

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21.6.2 Contemporary Adoption Law and the AI/AN The US has a modern framework of adoption law (see, further, Sect. 8.3.2.2). For some years now this has been closely linked to the public child welfare system, in particular law and policy has been aimed towards facilitating the adoption of children failed or abused by their birth parents. In 1978, when the ICWA was enacted, 1 in 4 AI/AN children were in the child welfare system, the overwhelming majority in non-Indigenous foster homes and ever since they have continued to be grossly over represented in both that system and in foster care. This has inevitably led to serious tensions with the ICWA which have been evident in many high profile cases.

21.6.2.1

Adoption

An “Indian child” is defined for the purposes of the ICWA as an unmarried person, under the age of eighteen, who is a member of, or “is eligible for membership in an Indian tribe, and is the biological child of a member of an Indian tribe”. It is left to the tribes to determine a child’s Indian status115 and, if affirmed, to declare to the statutory authorities the right of the relevant tribe to be involved in decisions regarding that child’s future. However, an “Indian tribe” has a restricted meaning: it refers only to those tribes recognised by government through formal treaties, which largely means the tribes impacted by the Indian Relocation Act 1956. Tracing ancestors in smaller Indian bands, to establish a child’s status, can be a lengthy and costly process which may not be completed in time to divert a child from entering the adoption process. In the meantime, the clock is ticking and the child usually needs to be in an out-of-home placement: the younger the child the stronger the likelihood that the placement will be with prospective adopters; and the longer any placement continues, the more important will be the legal weighting given to preserving the bonds of attachment as the key determinant of the child’s future welfare. This use of the bonding and attachment argument to justify retention of a child in their foster family, because removal would jeopardise their welfare interests is, as Bual alleges, often a “long-term, calculated legal strategy”—known to UK social workers as “concurrent planning” (see, further, Sect. 6.3.1.1)—which works to the detriment of birth parents whether Indian or not.116 A foster care placement may become an adoption placement by default. However, the ICWA was intended to counter any such argument and, notably, In re AlexandriaP,117 it did. This was an instance where after protracted legal proceedings the court enforced ICWA principles and directed that the child be 115 Determined

on the basis of the tribe’s blood quantum requirement. See, further, Spruhan, P., ‘A Legal History of Blood Quantum in Federal Indian Law to 1935’, 51 S.D. L. REV. 1, 4–5 (2006). 116 Bual, H., ‘Native American Rights & Adoption by Non-Indian Families: The Manipulation and Distortion of Public Opinion to Overthrow ICWA’, American Indian Law Journal: Vol. 6: Iss. 2, (2018), pp. 271–94, at p. 287.: https://digitalcommons.law.seattleu.edu/ailj/vol6/iss2/6. 117 204 Cal.Rptr.3d 617, 621–22 (2016). See, also, Matter of Custody of L.M.S., 187 Wash.2d 567, 578 (2017).

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removed from foster parents—who having cared for her for some years, had become adoption applicants—and be placed instead with members of her extended tribal family. (a)

Customary adoption

Traditionally, the responsibility to ensure the proper care of Indian children fell to the tribe as a whole as monitored and enforced by the tribal chief. Customary adoption, whereby a child would be placed with a member of the extended family—without any legal process to terminate or transfer parental rights—was a traditional practice, sanctioned by elders and the tribe chief. (b)

Private adoption

This form of adoption usually refers to the personal and direct placing of a child for adoption by his or her parent, most usually the mother. It can also refer to the involvement of private or commercial agencies, a particular characteristic of the US adoption process, in arranging adoption placements. Either way the placement is authorized by the birth parent/s. (c)

Departmental adoption

Adoption applications in respect of Indian children are not infrequently made by nonIndian foster parents who have had total care responsibility for such a child, placed with them by the state authorities, for several years. Despite the cautionary advice that the ICWA prevents an adoption application, some foster parents do eventually lodge applications and this gives rise to serious issues centred on the child’s long-term welfare interests.

21.6.2.2

The Statutory Adoption Framework and the AI/AN

The ICWA provides the overarching federal legislative framework. Adoption law and practice relating to the AI/AN is otherwise subject to general statutory provisions governing each stage of the adoption process (see, further, Sect. 8.4). Although directing responsibility for managing Indian affairs back to the jurisdiction of the tribe, its elders and chief, the ICWA has to function in tandem with other non-Indian specific legislation. Some parameters on the ICWA jurisdiction were imposed by Public Law 280118 which limited tribal authority in certain areas, including child welfare related proceedings, by recognizing that it would operate in subordination to equivalent state legislative provisions. (a)

AI/AN placement

As Bual points out: “ICWA is meant to allow the child’s tribe the opportunity to choose an appropriate placement for the Indian child when the child’s parents no 118 (PL

280). (18 U.S.C. § 1162(2012), 28 U.S.C. § 1360 (2012), 25 U.S.C. §§ 1321–1326).

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longer have rights to the child, and the child is currently placed within foster care, pre-adoptive, or adoptive placements”.119 The ICWA stated foster care, guardianship preferences are: (1) an extended family member of the child; (2) a tribally licensed or approved foster home of the child’s tribe; (3) an AI/AN foster home licensed or approved by a non-Indian licensing authority (e.g., a state agency); and (4) an institution for children approved by a tribe or operated by an Indian organization. The stated adoption placement preferences are: (1) an extended family member of the child; (2) a member of the child’s tribe; and (3) another AI/AN family.120 However, as Bual goes on to explain, “courts have implemented the Indian Family Exception Doctrine and the Existing Indian Family Doctrine into custody cases of Indian children as a method to bypass ICWA”.121 The first rests on the assumption that if the parent with sole care responsibility is not an Indian then the relinquishment of their child to non-Indian adopters, is not depriving him or her of an Indian upbringing as this was never in the parent’s gift.122 The second refers to situations where the existing family, from which a child is removed following state intervention on grounds of parental abuse or neglect, is one that is not practicing an Indian culture. Again, the child is not being deprived of an experience that was never on offer. However, in the second instance there is an argument that Indian kinship networks should be explored before the authorities default from the ICWA to the statutory adoption process. Both doctrines seem to sidestep the central issue that it is the entitlement of an Indian child to realise their cultural identity that is at stake—separate and distinct from rights of their parents or immediate family—and consequently an onus rests on the court to satisfy itself that good reasons exist, grounded on the welfare interests of the child, to grant an adoption application foreclosing that possibility. Where, as in Mississippi Band of Choctaw Indians v. Holyfield,123 both birth parents are resident members of an Indian tribe, then the unmarried mother’s subsequent voluntary relinquishment of their children will not be permitted to circumvent the rights of the tribe and children to secure an Indian adoption placement. In the Matter of Adoption of T.A.W .,124 the Indian and non-Indian separated spouses had their parental rights terminated in respect of an Indian child who was recognised as such by the tribe. The state Supreme Court found that the subsequent adoption placement of the child with his step-father was flawed as the ICWA required that “active efforts be undertaken to remedy and rehabilitate the parents of Indian children before their parental rights may be terminated”.125 Again the legal focus was on the child: the court recognized that when parental rights are being terminated to 119 Bual,

H., op cit, at p. 280. explained by the National Indian Child Welfare Association. See, further, at: https://www. nicwa.org/wp-content/uploads/2016/11/Improving-the-Well-being-of-American-Indian-and-Ala ska-Native-Children-and-Families.pdf. 121 Ibid. 122 In the Matter of the Adoption of Baby Boy L, 231 Kan. 199, 643 P.2d 168, 175 (1982). 123 490 U.S. 30, 38 (1989). 124 186 Wash.2d 828, 834 (2016). 125 Ibid. 120 As

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an Indian child, the issue is not whether the parent losing the rights is an Indian or non-Indian parent, but that child is Indian and entitled to the provisions and services outlined by the ICWA. (b)

Non-AI/AN placement

Such placements arise either because the birth parent/s choose to place, or to have her child placed, outside tribal care arrangements, or because child protection issues require an Indian child to be taken into public care and placed in a foster home. The numbers of such children entering the public care system, coupled with the severe lack of state approved Indian foster parents, results in many Indian children being reared by non-Indian foster parents some of whom, in time, lodge adoption applications. Adoptive Couple v. Baby Girl126 concerned a baby girl voluntarily relinquished for adoption by her non-Indian unmarried mother, separated from the father, and duly placed by an adoption agency with a non-Indian couple whose adoption application was contested by the child’s non-custodial father, a registered member of the Cherokee Nation. The latter then filed a notice of intervention, stating that Baby Girl was an “Indian Child” as defined under the ICWA. The family court’s ruling, rejecting the adoption application and granting custody to the biological father, was endorsed by the state Supreme Court. On reaching the USSC, however, this decision was overturned as the court found—in a 5–4 vote—that a non-custodial parent cannot invoke the ICWA to block an adoption voluntarily and lawfully initiated by a nonIndian parent. The USSC held that the ICWA was designed to stop the unwarranted removals of Indian children from Indian families “due to the cultural insensitivity and bias of social workers and state courts.” It found that under §1915(a) of the ICWA, the non-Indian couple is not prevented from adopting the child when there are no preferred individuals or entities (the Indian tribe) formally seeking to adopt the child.127 In this case, however, the Court reasoned that because the Indian father never had either legal or physical custody and had previously relinquished his parental rights the ICWA’s goal to prevent the breakup of Indian families did not apply; had he claimed the right to undertake parental care himself, the outcome might well have been different. Moreover, the ICWA’s preference for placing an Indian child with family, other members of the tribe, or other Indian families did not apply in this case because no other parties beside the adoptive parents had come forward to adopt Baby Girl. The girl was returned to her adoptive parents. Brackeen v. Bernhardt 128 originated in 2017 with an application from white foster parents to adopt the 2-year-old Indian boy placed in their care. The child’s biological parents, registered members of the Navajo and Cherokee Nations, contested the application, arguing that the matter was governed by the ICWA and, moreover, that the Navajo Nation had identified an Indian family placement in New Mexico. In October 2018 Judge Reed O’Conner ruled for the Federal Court that the ICWA was 126 570

US 637 (2013). at 2558. 128 No. 18-11479 (5th Cir.2019). 127 Ibid.,

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unconstitutional. He found that “ICWA’s racial classification applies to potential Indian children [who are eligible for tribal citizenship] including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.” The law, he concluded, was a “race-based statute” that treats Native children differently. The applicants were given permission to proceed with the adoption. The plaintiffs in this case, now on remand to the U.S. 5th Circuit Court of Appeals, include several families interested in adopting Indian children and a non-Indian biological parent who wants her Indian child to be adopted by a non-Indian family, argue that ICWA is race-based and violates the Equal Protection Clause of the U.S. Constitution. The defendants, including several tribal nations, counter that “Indian” is a political rather than a racial designation. This case would seem to be crystallizing the politics of adoption for those seeking to assert the welfare interests of the child in the complex nexus of issues now entangled at the interface of Indian sovereignty and federal legislation. When authorizing a non-AI/AN placement, the court must inform the Indian child—or ensure that information is available to them in the future—about any “tribal affiliation, if any, of the individual’s biological parents and provide such other information as may be necessary to protect any rights flowing from the individual’s tribal relationship”.129 (c)

Legal effects of statutory adoption

A statutory adoption order has the same legal effect on the parties to an adoption regardless of whether the subject is an Indian child or not. The adoptees assume the same name, nationality, citizenship and place of residence as the adoptive parents; and he or she inherits from the estate of an intestate adopter. The birth parents lose all legal rights and obligations in relation to their child. The adopters ‘step into the shoes of the birth parent/s’ and are vested with all the latter’s responsibilities. The traditional exclusive nature of an adoption order is now compromised by an adoptee’s right to eventually access information relating to their birth family and may well be further compromised by ongoing contact arrangements between the adoptee and members of their family of origin. Moreover, there is some evidence from a 2017 research project that Indian children adopted away from their tribe, families and culture are more likely than other adopted children to struggle with drug abuse, alcohol addiction, suicide, self-harm and other mental health issues.130

129 25

U.S.C. § 1917 (1988).

130 See, Landers, A, et al., ‘American Indian and White Adoptees: Are There Mental Health Differ-

ences’, at: https://www.ucdenver.edu/academics/colleges/PublicHealth/research/centers/CAIANH/ journal/Documents/Volume%2024/24%282%29_Landers_ai_and_white_adoptees_54.pdf.

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21.6.2.3

Customary Adoption

As has been pointed out “tribal customary adoption is the transfer of custody of a child to adoptive parents without terminating the rights of the birth parents”.131 As no legal rights were transferred, such an arrangement was a purely internal tribal matter, the national courts had no jurisdiction and no cause for involvement unless issues arose regarding matters such as health and safety factors in the placement, child trafficking or subsequent allegations of child abuse/neglect. Arrangements made were left dependent on the continuing goodwill of the parties involved and on the mediation of tribal authorities but legal enforcement was problematic. Since 2010 California has granted legal recognition to tribal customary adoptions, allowing such placements to be protected and supported by state law and government agencies. Indian children in the state public care system who cannot be safely reunified with their parents may, at the option of their tribe, be eligible for adoption by and through the laws, traditions and customs of the child’s tribe without requiring termination of the parental rights of the child’s biological parents.132 As significant as this is, it has to be added that, a decade later, other states have yet to follow the California initiative. (a)

Characteristics of customary adoption

The primary hallmarks of customary adoption are: the birth parent/s retain legal responsibility for their child; custody rights transfer to the adopters; the adoptee retains any inheritance rights in respect of the birth parent/s estate; openness, in terms of ongoing contact with birth family, is assured; full transparency as regards origins information is always accessible; and the adoptee grows up with full knowledge of and participation in their society and culture. Perhaps of greatest consequence is the fact that customary adoption need not be permanent; it can be terminated at any time at the initiative of any of the parties involved.

21.7 Conclusion The adoption processes traditionally and currently used by the Inuit in Canada, the Indigenous people of Australia, the M¯aori in New Zealand and the American Indian and Alaska Native population in the US are illustrative of the type of customary practice to be found among indigenous communities in other countries such as those of South America and Africa. The primary purpose served by adoption in an indigenous context is not fundamentally different from that in modern western nations. In both, adoption is essentially the most extreme means for giving effect to the common intention that total care responsibility for a child is transferred from the birth parent/s to approved other persons until such time as the child reaches adulthood. The goals 131 See,

National Child Welfare Resource Center for Tribes at: https://www.nrc4tribes.org. Bill 1325 (Cook; Stats. 2009, ch.287).

132 Assembly

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address similar factors such as parental death, absence, relinquishment or abandonment, failed parenting, infertility, the need for an heir and the tidying up of re-formed family units. The legal functions, however, reflect significant differences in law, policy and practice. Adoption within indigenous cultures is invariably a consensual process, governed more by practice than by policy or law. It has always been treated as a transparent and ongoing transaction between the parties, often following discussions involving the extended family, which require and receive the support of the community. It at least favours transactions that respect and maintain blood-link relationships. It emphasises the importance of ensuring that an adopted child is never in any doubt as to the identity of birth parents and members of their family of origin, with whom contact is maintained. It offers an assurance that the child will be reminded of their particular background, heritage etc. and in general will be provided with all information necessary to form an authentic identity and maintain a sense of belonging to their family, culture and community of origin. Insofar as there is a policy in this context, it could be said to be one of facilitating the harmonious reordering of parenting responsibilities in accordance with the wishes and needs of all concerned. The legal functions of adoption, redundant in terms of asserting or defending the rights of individuals, are appropriately minimal and non-interventionist serving mainly to endorse arrangements freely and openly entered into. The politics of adoption can achieve a crude but revealing salience in the context of relations between indigenous people and their host society. As a non-consensual process, adoption is often imposed on indigenous cultures. This tends to occur in circumstances where indigenous parenting is judged to infringe standards required by the public child welfare law of modern western society. At its most extreme it can take the form of a discriminatory policy to use non-consensual adoption, perhaps in conjunction with institutional residential schooling, as a means to enforce the assimilation of indigenous children into non-indigenous society. Most usually, it occurs as a consequence of the non-discriminatory application of child welfare law that inevitably results in some indigenous children being drawn into the child care system and then entering the non-consensual adoption process. The latter ‘child rescue’ dynamic highlights a more general political dimension that can be seen threading its way through the contemporary social role of adoption. Whether within aboriginal communities, or between the child care system and domestic adopters, or between the sending and receiving signatory nations of the Hague Convention, child rescue is, among other things, a measure of the failure to address the lack of appropriate family support services. Silk, alludes to this in the opening lines of ‘Adoption Among the Inuit’ when she observes that133 : In the North American Arctic, infants are sometimes abandoned or killed at birth by their parents. However, some infanticidal events are forestalled when unwanted infants are adopted and raised to adulthood by other members of their communities. In such cases, adoption provides an explicit alternative to infanticide. 133 See,

Silk, J., ‘Adoption Among the Inuit’, American Anthropological Association, Vol. 15, No. 3 (Sep., 1987), pp. 320–330 at p. 320.

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By going on to refer to “the functional linkage between infanticide and adoption in the Arctic” she draws attention to the possible consequences of an absence of the family planning methods and family support services that now provide a context for adoption in the more developed societies of other jurisdictions featured in this study. Her observation has implications that extend well beyond infanticide in the Artic. It carries a definite resonance, for example, with the spread of ‘safe haven’ or ‘baby hatch’ facilities across the U.S. and in many other developed nations. The role of adoption in an indigenous context has relevance for the law, policy and practice of modern western societies. It suggests: • A need to ensure the domestic provision of appropriate preventative and supportive services • Involvement of parent/s, significant relatives, friends and/or community representatives in placement decision-making • First preference for long-term foster care, where permanency is required, if this better enables the child to maintain relationships with family/community/culture of origin and revert to them on attaining adulthood • Second preference for kinship placement, where adoption is necessary, to authenticate identity and maintain a sense of belonging and • Placement with ‘strangers’ or non-relatives only in exceptional circumstances, where adoption is necessary, and then to be in geographical proximity to the child’s birth family, in keeping with parental wishes in relation to contact and accompanied by appropriate arrangements to safeguard the child’s cultural identity. In indigenous communities, where the private/public distinction and incidences of status are less relevant—though patriarchy is likely to feature—adoption avoided the degree of preciousness it acquired in western societies. As the concept of ‘family’ becomes more fluid and indeterminate in those societies, with serial parenting arrangements and ever more intrusive public service intervention (benign and coercive), so it is losing its insularity and assuming the more flexible characteristics associated with indigenous communities. Hallmarks of secrecy, complete severance with birth family, agency mediation, total assimilation of identity and formal judicial endorsement that have always characterised adoption in western societies are now being increasingly challenged by the indigenous alternative. Increasingly, western professionals are becoming attentive to the indigenous experience as they review the appropriateness of established legal functions for contemporary adoption practice.

Part VII

The Influence of Politics

This final part draws from the findings of preceding chapters to conclude with an assessment of the extent to which the themes typifying the common law experience are shared with other cultures and the political significance of any similarities/differences. It first considers and contrasts the varying jurisdictional regulatory regimes: examining national mechanisms for managing the sequence of stages constituting an adoption process from point of entry to outcome. It then examines jurisdictional differences in the main social roles of contemporary adoption, giving particular attention to the varying impact of recent pressures. This enables the book to conclude with a comparative jurisdictional analysis of politics and cultural context as determinants of adoption law, policy and practice.

Chapter 22

Politics and a Regulatory Regime for Adoption

22.1 Introduction Determining if and how the adoption process is to be regulated is a political matter. By 2020 all the countries considered in this study had introduced legislation that laid down the basic procedural stages, accompanied by their respective checks and balances, which permitted applicants to acquire a legal adoption order. Indigenous societies, though obliged to comply with national legislation, nonetheless remained relatively immune from some aspects of the legally regulated processes, as did ‘simple’ adoptions and kafala, while much domestic adoption in China and elsewhere in Asia often eluded official legal procedures, but for the most part adoption had become subject to a statutorily prescribed regulatory regime. The nature of that regime and of the regulatory machinery—the legal filters for input and output, the type of organisations involved, the forum for deciding the outcome of adoption proceedings, and the presence or otherwise of a body with oversight responsibility— all fall to be politically determined. Further, as Russia demonstrated in 2012 when it abruptly terminated ICA to the US, political directives can intervene to radically alter the functioning of a regulatory regime. That there is some variation in these components, among the countries studied, reflects differences in their culture and traditions, which continue to shape the national social role of adoption despite the steadily increasing salience of international politics. This chapter begins with a comparative analysis of the functions, constituent elements and output of the regulatory regimes, undertaken in the light of findings identified in the related chapters. Attention is then given to the existence or otherwise of a public service dimension to those regimes including their respective investments in post-adoption services and in procedures allowing the parties concerned to access identifying information. The final section reflects on the regulatory implications for adoption that arise from its context—within the wider parameters set by equality and human rights legislation and family law. As national compliance with international standards is becoming an unavoidable aspect to the functioning of any regulatory regime, it is necessary to focus on the relative extent to which the countries studied © Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_22

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give effect to the requirements of human rights and equality legislation when regulating adoption matters. The chapter then closes with a brief overview of the role played by key principles in adoption law: their congruency with family law principles; and considers the political significance of resulting jurisdictional differences.

22.2 Adoption and a Regulatory Regime The management of the adoption process is governed by law—administered by authorized agencies and personnel in accordance with legislation, legal procedures, rules and regulations. Output being most usually judicially determined. How it is defined, however, its purpose, constituent parts, access to it, the outcomes desired from it, and the availability of alternatives, are essentially all matters that fall to politics. Political decisions, taken from a basis of particular cultural values, in accordance with tradition, but within a context of competing priorities for the government of the day, determine the social role of adoption on a domestic basis. Political decisions, taken by negotiating an international consensus on objectives, processes and standards— which may conflict with the cultural values of some participant states—strive to do so on an intercountry basis.

22.2.1 A Regulatory Regime If nothing else, the ongoing covid pandemic has demonstrated the importance of having in place a process, adequately resourced and tightly regulated, for responding to needs driven user demand. The actual mechanics of a service delivery process and the means by which it is regulated, are critical: any process can otherwise become overwhelmed, diverted, subverted, or lose its focus; become inefficient, insufficient or just generally unfit for purpose. Discussions about the content of adoption—often centred on meeting needs, on guiding principles, and on ethical and psychological issues—must also make room for an objective analysis of how the adoption machine actually works, identifying the measures for determining effectiveness and providing the means for intermittent intervention to correct anomalies. Setting up the machine and deciding how and when it is to run—the balance to be struck between public and private interests etc.—are ultimately political matters: again, as demonstrated by the reaction to the covid pandemic, national responses will differ in accordance with political priorities, abilities and capacity. As with any other statutorily regulated public benefit system (e.g. taxation, banking and health services) the governing provisions are amenable to ongoing management intervention by the government of the day. This allows the adoption process to be flexibly adjusted or not in the light of contemporary domestic social pressures (e.g. same sex relationships and freedom of information), and as required by international events (e.g. the 2015 refugee crisis and associated child trafficking).

22.2 Adoption and a Regulatory Regime

22.2.1.1

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Government Regulator

The adoption process is invariably governed by statute, with the exception of customary adoption in an Indigenous community. The outcome of that statutory process is determined by a court, with some notable exceptions such as Ireland and China. In all jurisdictions, management of the adoption process is a statutory duty assigned to the government body with responsibility for the provision of family and child care services: in almost all, the domestic process is now run on a strictly notfor-profit basis; in some, however, aspects of the process, particularly in relation to ICA, can be delegated to independent for-profit intermediaries.

22.2.1.2

Regulating Domestic Adoption

Domestic adoption, in all common law jurisdictions studied, had evolved from being largely concerned with third party or ‘stranger’ adoption into several distinct types (child care and protection, step-parent, kinship etc.) each with associated bodies of regulations and involving a different mix of agencies and specialist professionals. In the civil law jurisdictions the evolving typology was much the same but was also more likely to accommodate a distinction between ‘full’ and ‘simple’ adoption, provide for adults as well as children, and place less reliance upon a rigorously regulated regime. In other jurisdictions such as China, but also in the Indigenous communities, adoption was interpreted more loosely, involved few professionals or mediating bodies and was subject to minimal regulation. Scope for independent decision-making by birth parents and voluntary bodies, characteristic of all adoption processes at an earlier stage, has virtually disappeared except in the U.S., China, in Islamic jurisdictions, and in those countries where the traditions of customary adoption continue to be upheld. Among the common law and civil law nations, the U.K. now has the most centralised, professional, bureaucratic and government agency controlled system. It seeks to thoroughly and comprehensively regulate all adoptions, doing so with increased transparency, where practice is policed in accordance with specified standards.

22.2.1.3

Regulating Intercountry Adoption

As Hollinger points out, while intercountry adoption is most often beneficial for all concerned, it comes with its own set of risks1 : Since the 1980s, intercountry adoption has become a lucrative, largely unregulated multinational industry, producing tens of thousands of, for the most part, stable adoptive families, but also generating ever higher profits for thousands of adoption “service providers” and facilitators, and in some countries, wreaking havoc on children and families whose well-being is ignored by intermediaries driven by corruption and greed. 1 See,

Hollinger, J.H., Adoption Law and Practice, LexisNexis, 2010 (as updated).

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The latter abuses were particularly evident in Guatemala and more recently in Somalia and Uganda with well substantiated reports of child trafficking.2 Intercountry adoption is not subject to standardised regulatory control. Except insofar as countries are voluntarily bound as signatory states to the Hague Convention, abide by the Convention on the Rights of the Child and/or are subject to the rulings of the ECtHR, there is considerable variation in the regulatory regimes of the non-common law jurisdictions and none of the latter seek to control the process through statutory law, standards and procedures to the same extent as in the U.K. The fact that many nations have become Hague signatory states has theoretically extended the protection of a safer regulatory regime to encompass a greater proportion of intercountry adoptees, but this is far from providing a system of rigorously policed safeguards. To take one example, the role of the Central Authority as the primary regulating body has not proved effective in curtailing the activities of independent agencies and agents in making private ICA arrangements in Germany and elsewhere. Also, many nations have yet to subscribe to the Hague Convention and, most worryingly, the majority of ICAs still occur outside the Hague framework. This must offer encouragement to countries engaging in non-Hague compliant practices (see, further, Sect. 20.5.3.) A serious weakness of the Hague Convention is that it doesn’t stop signatory nations from shopping around for supply sources that can be utilised in tandem with those subject to Hague. As a regulatory mechanism it is deficient in that it has no power to enforce compliance within the circle of signatory nations nor to prevent members from also making bilateral arrangements outside it. It is revealing that there is seemingly no collective political will to reinforce Hague principles with regulatory power nor to effectively regulate non-Hague adoptions and commercial surrogacy. This may attest to an inconvenient truth—that it suits some nations, both sending and receiving, to keep their options open.

22.2.2 The Process The sequence of stages in an adoption process—from pre-placement counselling through to post-adoption information access—is essentially much the same in all common law jurisdictions, though there is considerable variation as regards statutory underpinning. In the U.K. all stages exist, are governed by statute, controlled by government bodies and are the subject of mandatory supervision in accordance with specific rules, regulations and standards. The U.S. and Canada differ from other common law jurisdictions in that they permit the involvement of independent adoption intermediaries, that may operate on a commercial basis—unlike, for example, 2 See,

for example: UN ODC, Global Report on Trafficking in Persons, 2020, at: https://www. unodc.org/unodc/data-and-analysis/glotip.html Also, see, Bunkers, K.M., Groza, V. and Lauer, D., ‘International Adoption and Child Protection in Guatemala: A case of the tail wagging the dog’, International Social Work, Vol. 52, 2009, pp. 649–660.

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New Zealand. In Ireland there is no statutory provision for pre and post adoption services but these may be available from both state and voluntary bodies. Australia is closer to Ireland than to the U.S. or the U.K. in this respect. In non-common law jurisdictions, the adoption process does not exist as a carefully sequenced set of formal proceedings, each separately governed by statute, with designated agencies and professionals, subject to a central government regulatory authority—except to the extent that they comply with Hague requirements in relation to ICA. The process within a civil law regime approximates the common law model but is less sophisticated—or less bureaucratic. In Japan there is some evidence that in relation to children the process has, in effect, been managed entirely at the discretion of the medical professionals involved with birth mothers; though this has recently been curbed by the introduction of new legislation. In an Islamic context, the equivalent process is very flexible and often without any counterpart to certain stages such as pre-placement counselling, post-adoption government support and agency tracing services. Domestic political intervention has become a characteristic of the ICA process in recent years. In some cases—Korea and Romania—stabilising economic prosperity has resulted in a government resolve to attempt national self-sufficiency in meeting the adoption needs of their children. Instead of maintaining a steady regular flow, the process has proved vulnerable to interruption by government decisions in sending countries—such as Russia and Romania—to impose quotas, suspensions or moratoriums, in response to the ever increasing demands from foreign prospective adopters. The uncertainty which now surrounds the waiting lists in some countries— such as China—results in prospective adopters being ‘timed out’ or switching to other countries which, as well as being stressful for them, must make planning for the children very difficult, particularly as regards setting their expectations and ensuring appropriate matching.

22.2.2.1

A Judicially Determined Process

Adoption is judicially determined in all the common law and civil law jurisdictions studied, with the exception of Ireland. However, while in the final analysis it falls to the courts to ensure compliance with designated procedures, protection for the rights of the parties and determination of all adoption applications, in practice until that stage is reached the process is managed by administrative bodies the decisions of which can, in some jurisdictions, determine the outcome. In jurisdictions such as Ireland3 and China4 —where parental consent or its absence obviates any need for an adjudicative dimension—the process is wholly administrative and is determined by 3 In

Ireland this function is administrative; adoption hearings and the decision to grant or refuse the order sought are matters for the Adoption Authority. The High Court only has a role where legal issues, such as consent disputes, require adjudication; in all cases the final decision in relation to an adoption application taken by the Adoption Authority not the court. 4 In China, the China Center of Adoption Affairs (CCAA) is the appropriate administrative body that determines all adoption applications.

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22 Politics and a Regulatory Regime for Adoption

an administrative body rather than a court. In Japan, most adoptions are ‘ordinary’ which, unless they involve lineal descendants, do not require court involvement.

22.2.2.2

Mediating Bodies

The role played by independent professional mediators in an adoption process is a political matter: ranging from the minimal intervention that typifies customary adoption in Indigenous communities to the intensive and highly regulated input now characteristic of that process in England and Wales. Whether that mediation is undertaken by government bodies, nonprofit organisations or by commercial intermediaries—the division of responsibilities among them and the ambit of discretion allowed to the professionals involved—is again a political matter. Adoption Agents and Agencies Articles 9 and 22 of the Hague Convention require intermediary agencies to be either government bodies or to be an organisation or person licensed and regulated by government. The risks for the integrity of an adoption process when such agencies are unregulated were demonstrated in Romania and South Korea where agency control of health care, maternity homes and financial benefits enduced and channeled pregnant women and girls towards the adoption gateway. In England and Wales the statutorily defined responsibilities of mediators in the adoption process are much more likely to be exercised by the staff of a local authority than by an independent agency. In sharp contrast, the U.S. nonprofit or commercial adoption agencies now play a more prominent role in the adoption process than state agencies: direct placements with an unrelated third party and placements by private commercial agencies are not just permitted, they have become the norm. In Ireland, although a number of voluntary adoption agencies continue to practice, some are in fact wholly run as subsidiaries or agents of their local health board. In Canada, the U.S., England and Wales and in some parts of Australia, the government child care and protection bodies act, in effect, as feeder channels into the adoption process; though interestingly, there are indications that as the latter becomes more amenable to legally facilitating such a flow, the US is beginning to obstruct it. The extent to which the role of for-profit intermediaries engage in an adoption process reflects the corresponding political intent to give a weighting to private interests in that process, which is nowhere more apparent than in the U.S., particularly in relation to intercountry adoption. In Sweden, France, Germany and Ireland— where the process very largely caters for intercountry adoptions—the agencies are in the main private independent nonprofit bodies. In Japan, all adoption agencies are private and not necessarily registered, whereas in China the adoption process is governed by the centralised functions of the CCCWA which supervises the involvement of all other agencies, domestic and foreign. The effectiveness of any supervisory

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machinery, representing the public interest, in regulating the role and standards of agency practice, is crucial. Supervision by Administrative Bodies While the adoption process in most jurisdictions studied concluded in court, the positioning of administrative bodies supported by statutory rules and regulations often play a crucial filtering role which serve to prepare the ground for judicial determination. This intermediary scrutinising function is most clearly illustrated by the experience in England and Wales where Adoption Panels maintain an oversight of all professional assessments and make the critical recommendations that set the agenda for both adoption agencies and the judiciary. In addition other administrative bodies inspect professional standards and agency procedures in accordance with statutorily specified requirements.5 Court Representation There are many facets to the role of politics in setting and adjusting the mechanics of the adoption process in respect of both domestic and intercountry adoption (see, further, below). Of these, perhaps the most telling is the presence of independent legal representatives statutorily assigned to establish the particular welfare interests of the child and ensure they are brought to bear on the decision-making process. In England and Wales that responsibility rests with CAFCASS officers and no other jurisdiction makes comparable specific statutory arrangements for the interests of the child concerned to be independently ascertained and assertively presented to the court, but then—along with the US—in no other does such a large proportion of adoptions proceed on a nonconsensual basis.

22.2.3 Rights of the Parties In both common law and civil law jurisdictions, statutory provisions define to a varying extent the eligibility of parties to enter the process, the terms on which they may engage in it and their post-adoption rights. This is largely attributable to the spreading standardising effect of international conventions—particularly the United Nations Convention on the Rights of the Child 1989, the Hague Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms—together with, for Russia, Romania and other European nations, the rulings and principles emanating from rulings of the ECtHR.

5 See,

for example, the Adoption Support Services Regulations 2005, the Adoption Agency Regulations and the Suitability of Adopters Regulations 2004.

954

22.2.3.1

22 Politics and a Regulatory Regime for Adoption

Eligibility

Among the crucial ways in which the regulatory machinery gives effect to political aims is by defining the rights of access for all parties: who is legally defined as eligible to adopt or be adopted is revealing. For example, the fact that in Romania the upper age limit for a prospective adoptee is 14 years of age (except in special circumstances) is interesting: possibly, given the history of adoption being ICA oriented, it was considered politically expedient to prioritise domestic workforce needs over welfare for those approaching school leaving age. The eligibility and suitability of prospective adopters always requires objective assessment, usually by a professional social worker—though not necessarily in customary adoptions—in accordance with much the same criteria, accompanied by the usual supporting evidence and testimonies. In all jurisdictions, the traditional parties—third party applicants, an orphaned or abandoned child, and consenting birth parents/guardian—continue to be given statutorily recognised rights of access to the process but in China, Romania, S Korea and Russia they constitute a much more significant proportion of participants than elsewhere. In Japan, the process and parties are singularly oriented towards adult adoption; which is also available, if seldom used, in Germany. In Japan, as in the Indigenous communities and to a lesser but varying extent among the civil law countries, the process also accommodates parties seeking a lesser form of adoption such as ‘simple’ or kafala. In some, such as those of the Islamic tradition, a relationship of consanguinity has always been a facilitating factor for the parties concerned and this kinship factor—as extended to encompass step-adoptions—has grown to become significant in the common law countries, particularly in the U.S. The eligibility of some potential applicants, such as same gender couples, varies between jurisdictions and applicant suitability is acquiring a decisive weighting— particularly in China where a range of disqualifications on grounds of suitability now apply.

22.2.3.2

Welfare

In England and Wales the welfare interests of the child are unequivocally the paramount criterion for entering and exiting the adoption process: this is most clearly evident in relation to passporting children from the care and protection system into the adoption process when it is sufficient in itself to nullify parental consent. In most other common law jurisdictions the welfare factor has an almost, but not quite, equivalent weighting; except in New Zealand where the parental consent threshold is quite high; and in Ireland where the welfare interests of a child—as a determinant of entry to, exit from, and information rights following—an adoption process, have traditionally been reduced relative to the rights of their married parents, though recent legal developments may alter that balance. In Japan the welfare component operates in the main as a default mechanism in that adoption of a child must be at least welfare compatible while that of an adult may be concluded without regard for welfare as usually

22.2 Adoption and a Regulatory Regime

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understood. The weighting given to welfare is not much greater in Sweden, France and Germany whereas in an Islamic context, it is wholly theologically determined.

22.2.3.3

Consent

The regulatory machinery is clearly giving effect to political aims when it determines the consents necessary for adoption: who must give consent, the grounds if any for dispensing with it and the nature of the adoptee’s participation in the decision-making process are politically significant and revealing. In all except a small minority of common law jurisdictions, adoption is almost entirely a consenual process reflecting a political approach which views adoption as essentially a private family matter where the role of the state is confined largely to setting out the broad parameters and regulating standards of practice. In China, S Korea, Romania and Russia, to a large extent in Japan, and more generally in Islamic countries, the rights of birth parents are virtually defined out by a process which ostensibly denies entry to children who are neither orphans nor abandoned. In the U.S., however, the birth parent/s in many states retain the statutory right to make or arrange a direct placement. The consent rights including of an unmarried father, are similar in most common law and civil law jurisdictions— though perhaps less so in Germany and New Zealand. The rights and responsibilities of marital parents have until recently been accorded singular recognition in Ireland but this has now changed with the introduction of new legislation. The grounds for dispensing with the consent of birth parents play an important part in determining the eligibility of children for adoption in the U.S., Canada, the UK and to a lesser extent in Australia. The grounds are roughly similar: death, mental illness, whereabouts unknown; abandonment; or parental rights having been terminated following conviction for child abuse or neglect. In Ireland, New Zealand and France grounds of parental fault are the determining factor in only a tiny minority of annual adoptions, and are extremely rare in Japan, Sweden and Germany, Russia and Romania, while contention in the U.K. jurisdictions, if not the outright adversarial opposition of birth parents, is now a not uncommon feature of the adoption process. Only in the U.K. jurisdictions, however, is this taken a step further. The traditional grounds for dispensing with parental consent are displaced by the paramountcy principle: the welfare of the child, as judicially determined in the light of all the circumstances, is now determinative. This fundamental political adjustment of the role of welfare in adoption law seemed to be following the corresponding US intiative but now, ironically, the latter is clearly reprising its approach to severing parental rights which may leave the UK as the leading exponent of non-consensual adoption. Broadly speaking, in most jurisdictions there is an absence of statutory provision for the independent assertion of children’s rights as opposed to protection of their welfare interests. The consent of the child concerned is not a statutory requirement in England and Wales, Ireland, Germany, New Zealand, nor in many U.S. states and most Australian states and territories, but it is required with varying age limits in most Canadian provinces. However, in China, Romania and Russia the consent of a

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22 Politics and a Regulatory Regime for Adoption

child aged 10 is mandatory, as it is also in Sweden in respect of a child aged 12 years of age or older, in S Korea and France the child must be at least 13 and then their consent is required for both simple and plenary adoptions, but in Japan it is necessary only when the child is aged 15 or more.

22.2.4 The Order Made Clearly, a revealing indicator of a nation’s policy in relation to adoption is the extent to which it holds to the traditional absolute and exclusive model, or allows for this to be moderated in certain circumstances, or makes alternative orders available. Whether, in the latter case, the alternatives are public or private family law orders and whether they can be made at judicial discretion, provides further clarification.

22.2.4.1

Full and Qualified Adoption Orders

The political intent shaping the social role of adoption is revealed by the extent to which the regulatory machinery allows an adoption to be compromised by ‘openness’ considerations and contact conditions: the degree of compromise reflecting a corresponding political willingness to adjust adoption’s role to meet changing social needs. In some jurisdictions, the rights of the parties vary according to whether or not the adoption is ‘full’ or ‘simple’. The former is what Hollinger refers to as the ‘as if’ adoption model6 (designed to ensure the outcome places all parties as close as possible to the legal position they would have been in had the child been born to the adopters), it typifies the traditional common law approach but is not so central to the purpose of adoption elsewhere. Although the traditional hallmarks associated with that order (exclusive, unqualified and confidential) are fading, it still retains many traces of its private family law origins. Its legal effect is similar in those jurisdictions and the consequences for the parties in terms of a redistribution of rights, responsibilities and legal status are statutorily stated and clarified by a body of common case law. In England and Wales, an adoption order is frequently accompanied by a child arrangements order (previously a contact order). In Ireland, in keeping with New Zealand, Romania, S Korea, China, Russia and Canada, but unlike other jurisdictions, there is no possibility of the legal effect of an adoption being qualified by an accompanying order providing for contact between an adoptee and birth family members of their family of origin; though, since 2020, this is now available in Germany. In the other jurisdictions studied, an adoption order is not necessarily defined as ‘full’ and in both France and Japan ‘simple’ adoption is also available. In an Islamic 6 See,

Hollinger, J.F., ‘Overview of Contemporary Challenges to State Adoption Laws’, Adoption Law, 1993.

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context, the equivalent order of kafala is distinctly different from adoption. The legal effects of these orders vary accordingly but in Russia, S Korea, Romania, Sweden and Germany they are absolute and as stringently delineated as in the common law jurisdictions.

22.2.4.2

Availability of Alternatives to Adoption

A particularly significant aspect of the regulatory machinery is whether it makes available alternatives to adoption and, if so, the terms on which it does so: the political dimension is apparent in the types of options—public or private orders—that may be accessed and in whether referral to them is, in some circumstances, mandatory. In public family law, the official U.S. policy of discouraging the use of long-term foster care for children in respect of whom parental rights have been terminated has been followed in England and Wales and reinforced in both jurisdictions by a statutory entitlement to post-adoption allowances. In both, however, the introduction of guardianship orders is intended to provide a private law alternative to adoption for some foster parents. Also, in both—as things stand in 2020—there are indications, strongest in the U.S., of an easing of the credo that termination of parental rights is appropriate in the context of failing families and that this should be followed by adoption rather than foster care as adoption is necessarily a better means of promoting welfare. In Canada while adoption from the public care system is well established so also are the alternatives of foster care and guardianship. Parenting orders and guardianship are preferred to adoption from care in New Zealand. In Ireland, the policy commitment to prioritising the use of long-term foster care in preference to adoption has been largely a forced choice, given constitutional constraints, reinforced by the absence of any statutory entitlement to post-adoption financial support; but recent legislative change will now facilitate the entry of children, abused or neglected by their married parents, to the adoption process. In Russia, Romania, S Korea and China, there are no alternative orders available at the exit point of the adoption process; the default of return to the previous guardianship arrangement is the only feasible option. In private family law, the absence of any specific alternative for step-parents in the U.S. (a permanent legal guardianship order is intended for use by foster parents) reinforces the policy of at least not obstructing their continued access to adoption. This would also seem to be the case in Ireland. In Australia, New Zealand and Canada—as in England and Wales—alternative private family law orders are available together, in some jurisdictions, with a statutory directive that they be used when appropriate instead of adoption. In Russia, China, S Korea, Romania, France, Germany and Sweden, government policy does not positively support non-consensual adoption from the public child care system so there is a heavy reliance upon foster care and institutional care which are better resourced than equivalent services in the U.K. and the U.S. In contrast, adoption as a private family law procedure is accepted and supported which lessens the need for intermediate orders such as guardianship. In Japan, like France, a ‘simple’ form

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22 Politics and a Regulatory Regime for Adoption

of adoption can substitute for a ‘full’ order in private law proceedings. In an Islamic context, wherever there is an officially stated policy this is in favour of guardianship as opposed to adoption and this would unofficially also be the case among Muslim communities wherever located. Rehabilitation Whether or not government resources are committed to retrieving failed or failing parental care is a political matter, and the stage at which any such intervention is attempted is highly significant in terms of the functioning of a regulatory regime. The supported rehabilitation of children with their families of origin, in circumstances where parental failure has resulted in their children entering the care system, is the preferred option in the civil law jurisdictions of Sweden and France, though less so in Germany—and in Japan and China—where children tend to remain in institutional care by default. It is evident also in a majority of common law jurisdictions; but the threshold for remedial government intervention has been significantly raised by the weighting given to the welfare principle in the U.K, the U.S. and Canada (see, further below, at Sect. 19.5.1). The Australian policy of prioritising rehabilitation as the preferred option for children in the public care system has resulted in the development of specialist foster care services (also, see, Sect. 4.3.2.5).

22.3 Adoption as a Public Social Service Adoption, as a public service that operates for the general benefit of society, is dependent upon political endorsement. This is demonstrated by effective translation into appropriate legislation, accompanied by adequate financial underpinning, for a range of provision that compares favourably relative to other public services. In practice this is the only valid, relevant and transparent test and one which reveals the nature of the politics at work.

22.3.1 Adoption and Family Planning The legal balance struck between access to methods of birth control, including contraception and abortion, and access to adoption is a matter of politics. The resolution reached is evident mostly in the terms of abortion legislation relative to the existence or otherwise of welfare benefits, family planning and child care services, social housing and other forms of government provision for single parents. Central to this political balancing act is the recognition and weighting given to women’s reproductive rights which in more traditionally patriarchical societies—like China, Russia, Ireland, S Korea and Romania—is less firmly established (and in China is wholly subject to population management policy), leading to a consequent greater reliance on abandonment and consensual adoption as the accepted means of dealing with

22.3 Adoption as a Public Social Service

959

surplus non-marital children. The continuation of that state of affairs is, of course, also a matter of politics: gvernment non-intervention being indicative of implicit collusion with traditional social norms.

22.3.1.1

Abortion

One measure of the political significance of adoption has traditionally been reflected in its relationship to abortion services. In Romania as in China the availability of abortion has been strictly politically controlled as a government mechanism for regulating population growth: in the former it is now freed from political control but is difficult to access for financial and cultural reasons which contributes significantly to the numbers of children abandoned and adopted; in the latter it remains politically regulated but, paradoxically, with the same consequence of increasing recourse to abandonment and adoption. In S Korea, where abortions are available but most are illegal, again this would seem to be linked to the numbers of children abandoned by birth parents to feed into the adoption process. In all common law countries abortion is legally available although annual rates are in decline. It is most permissive, but also probably most controversial, in the U.S. where the high annual rates are second only to China. In Canada, Australia and New Zealand it is a legally available medical procedure and similarly in England and Wales where this government funded service is permissible during the first 24 weeks of pregnancy (lowered from 28), but later abortions are permitted if medically justified. In Ireland, however, it has always been illegal and despite the introduction of abortion legislation in 2013 it will continue to be so except where there is a threat to the life of the mother. It is also available in the civil law countries: in Sweden, up to and including 18 weeks; 12 weeks in France and Germany. Japanese law permits abortion and while Islam is generally antipathetic to it, abortion clinics do exist in Islamic communities. Generally speaking, analyzing the correlation between annual rates of abortion and adoption is no longer tenable as a measure of the relative political commitment to these services as recent improvements in contraception have reduced the need for abortion.

22.3.1.2

ART and Surrogacy

The political weight given to adoption as a public service is clearly affected by the ease of access to assisted reproduction treatment, particularly IVF, and is now being seriously challenged—and in some countries, displaced—by the rapidly growing commercial surrogacy industry. ART services and non-commercial surrogacy are widely available, often as an option among other government funded services, in both the common law and civil law jurisdictions: although restricted in Germany; and it is not government funded in Ireland. In China there is no evidence of a political commitment to facilitate ART or surrogacy as public services and both are problematic in an Islamic context. There

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is also an obvious political dimension to the varying availability of such services to the LGBT community. If intercountry adoption can be seen to some extent as the outsourcing of domestic adopters needs, this dynamic is more starkly and overtly present in the proliferation of commercial surrogacy facilities in the developing world—where many have become lucrative centrepieces in the global health tourism trade—that cater largely for customers from developed western nations. Countries such as the US and Romania, where commercial surrogacy is well established, also incidentally increase ICA as in many instances the law in the home countries of the commissioning “parents” require the child to be adopted. Striking a balance between access to adoption and to surrogacy, on both domestic and international fronts, is set to become a testing political challenge for many governments in the immediate future (see, further, Sect. 20.5.5).

22.3.2 The Unadopted One measure of the efficacy of any process is to identify and weigh the relative importance of matters not processed. The functioning of adoption, on a domestic and intercountry basis, shows where the emphasis lies in terms of children deemed more adoptable than others and discloses the gaps through which fall those whose particular set of needs render them less adoptable. As a corrolary, it also discloses the fact that the process disqualifies certain potential adopters: most obviously debarring gay couples in some jurisdictions; while also generally filtering out those above a certain age, some judged to have lifestyle issues or those considered not to have ‘dealt with’ their infertility. But, for present purposes, the concern is for the unadopted.

22.3.2.1

Adults

The adoption of adults has been and continues to be routinely accommodated in the adoption processes of the civil law countries: Sweden, Germany and France (restricted to ‘simple’ adoption) all make legal provision. In Japan, such adoptions are commonplace but the purposes they serve clearly reveal the adopters non-altruistic motivation. In a common law context, the adoption process is usually confined to children. Adult adoption is not possible in England and Wales, Ireland, New Zealand, China, Russia, Romania, S Korea and most of Australia but is permitted throughout most states in the U.S. and in much of Canada. Arguably, a legislative intent to confine adoption to children reflects a political acknowledgment that the process is not designed primarily to serve altruistic purposes as the needs of all others, such as young disabled adults, are thereby excluded from it.

22.3 Adoption as a Public Social Service

22.3.2.2

961

Child Care and Protection

While the emotional and psychological needs of the spectrum of children admitted into any nation’s public child care and protection system are not dissimilar, the disposal options available are categorised according to the legal rights of their parents: most obviously in Ireland where the marital status of abusing parents had— until 2017—effectively determined the adoption eligibility of their abused children. Unquestionably the needs of an abused or neglected child are at least as deserving of the nurturing security of adoption as one who has been orphaned or abandoned but in most jurisdictions studied a much lower proportion of the former group were likely to be adopted. The reasons for this are clearly political—turning on the existence of grounds permitting non-consensual adoption—often reflecting the culture and/or the religious ethos of the country concerned, and result in most abused or neglected children being denied the adoption option. Where the political intent, as reflected in legislation and judicial practice, results in the nonconsensual adoption of abused and neglected children then the speedy and flexible provision of relevant support services to the adopting family is crucially important to the success of that adoption. In the countries where the passporting of such children from the care system into the adoption process is possible—the U.S., the U.K., Canada and to some extent in Australia—it was noted that this attracted a specific range of public service provision.

22.3.2.3

Intercountry

Until recently, the children adopted via the intercountry route were clearly differentiated from their domestic counterparts by being younger, generally with few health or social care needs and without contact complications with birth family members: older children and those with health issues were very largely unadoptable. Regulatory controls, applied from within the sending countries, have gradually altered that profile or, as in Romania and S Korea, have shut down the outflow. Most children now subject to intercountry adoption tend to be aged three years or older and have some degree of health or social care needs: this is particularly the case with children from China or eastern Europe.7 External political influence has also played a significant role: one consequence of nations becoming signatory states to the Hague Convention, most notably following the accession of China and the U.S., has been a sharp fall in the annual number of intercountry adoptions. The consequence, Bartholet argues, is that tens of thousands of children who would otherwise have been found adoptive families in other countries have instead become unadoptable and will, most likely, be consigned to long term institutional care.

7 See,

The Hague Special Commission, 2010.

962

22.3.2.4

22 Politics and a Regulatory Regime for Adoption

Children, Older or with Special Needs

The term ‘special needs’ is used differently in the jurisdictions studied: in the U.S. and the UK it would seem to encompass older children and those belonging to a minority ethnic group or to a sibling group; in Canada, it refers to children suffering from emotional or behavioural problems and this is characteristic of most of the child care population. However, in Ireland and elsewhere among some modern western societies the term is used specifically in reference to children suffering from severe health issues (particularly mental disability) and/or social care problems. Arguably, this sub-set of children should be differentiated from the broader class because the particular difficulties in facilitating their adoption require a correspondingly distinct policy emphasis. Unquestionably, the adoption process does not readily accommodate children older than 6 or 7 years of age (and prevents the adoption of those aged 14 or older in Romania), or those with health/social care needs or those in sibling groups. In all countries they are ‘less adoptable’. In the U.K., the U.S. and Australia, unlike Ireland, such children are the focus of specialist and successful policies—including customised adopter selection and training processes, rigorous adoptee and adopter matching, long-term financial support and appropriate post-adoption services—to facilitate their adoption. In Japan, as in many civil law countries studied, children with special needs would very seldom enter the adoption process and there is no government policy that aims to encourage this. As in an Islamic context, such children are generally cared for in an institutional setting; though in Sweden government policy is to provide the support necessary to retain children with special needs in their family of origin. In an intercountry context, as noted above, recent political initiatives in China and elsewhere have targeted such children for adoption and now by far the majority of those sent for adoption overseas are children with special needs. This, in turn, is persuading many prospective adopters who do not wish to parent such a child to turn towards non-Hague compliant sources or to consider commercial surrogacy: in facilitating such choices the role of for-profit adoption agencies play a significant role; and consequently traditional sending countries are left with a higher proportion of children requiring costly services which they are unlikely to receive. Conversely, it might be argued that by facilitating intercountry adoption (Swedish adopters receive a post-adoption grant) governments in receiving countries increase the probability of their older or special needs children remaining in institutional care.

22.3.3 Post-adoption Support and Services Whether or not government money finds its way into an adoption process and, should it do so, the basis for its distribution, is very politically revealing: no where more so than when it is used to facilitate a transfer of care responsibility from the public child care system to private adopting families. In the common law countries, post-adoption support services have been very largely viewed as specific to child care adoption

22.3 Adoption as a Public Social Service

963

and policies regarding their statutory availability were pre-set by the priority given to that political commitment. Other countries have had a commitment to providing general post-adoption support services and in most if not all there has been a political willingness to facilitate service provision by independent nonprofit agencies.

22.3.3.1

Provision of Services

All forms of adoption, including intercountry, attract government support in France, Germany and in Sweden (except that of adults), where this is now a legal entitlement. The latter country is exceptional in that the government provides a standard financial grant to all intercountry adopters. In jurisdictions where the approach is to mainstream adoption into child care provision, established policy is to extend the availability of post-adoption support services to all parties in all types of adoption, public and private, including intercountry. In England and Wales this policy is given effect by provisions in the Adoption Act 2002 (as amended by the 2014 Act),8 which gives adopters, adopted children and birth family members a legal entitlement to a needs assessment though, excepting child care adoptions, this may not translate into any related service provision. In Russia, S Korea and Romania—unlike in China—financial and other supports have now been introduced in order to incentivise prospective domestic adopters and to reduce the risk of placement breakdown. In the federated common law countries—Australia, the U.S. and Canada—there is no standard statutory provision other than in relation to child care adoptions, but varying levels of support are available to other adopters in some jurisdictions. In Ireland, New Zealand, Japan and in an Islamic context, the absence of a statutory right to support services reveals a corresponding lack of political will to commit public resources to matters viewed as essentially private and such post-adoption services as exist are generally provided by nonprofit agencies.

22.3.3.2

Nature of Services

In the context of child care adoptions, the statutory service entitlement generally includes prompt access to all public health care provision, specialist counselling or psychological and other therapy services, and to long term financial aid. In respect of all other adoptions the services if available will, at a minimum, include counselling and respite care. Increasingly, equality legislation is ensuring that adopters are included in the definition of ‘parent’ for the purposes of entitlement to paid leave from employment etc. In some countries, such as the U.S., preferential tax benefits are available to adopters. What often seems to be missing are follow up services offering support to birth parents.

8 See,

also, the Adoption Support Services Regulations 2005 (SI 2005 No 691).

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22.3.4 Post-adoption Information Rights In all common law jurisdictions studied, the policies relating to post-adoption rights of access to identifying information reflect a struggle to balance the rights of the parties involved: the privacy rights of birth parents generally make the issue of an adopted person’s right of access to such information contentious. Statutory information rights are strongest in England and Wales, non-existent in Ireland and most hotly debated in the U.S. In Canada as in Australia, open access is the general rule. In New Zealand, where ‘openness’ was first modelled, paradoxically access remains statutorily constrained. Where they exist, statutory access rights are usually counterbalanced by contact veto rights of varying rigour. In the civil law jurisdictions the law is less concerned with post-adoption information rights; except that in France, if a birth mother claims anonymity, access to identifying information is protected by law. The traditional ‘closed’ model of adoption continues to dominate in Germany where adopters and adoptee are assured of ongoing secrecy. In Sweden there does not appear to have been any great difficulty in allowing adoptee access to identifying information. Although recent ECtHR case law has been somewhat equivocal, it is probable that the combined effect of Articles 8 and 14 of the European Convention together with clear statements of similar principles in the U.N. and Hague Conventions will shape a future common policy. To ensure Convention compliance, such a policy will need to guarantee that an adopted person has access to sufficient information about his or her family background and cultural heritage to maintain or develop their personal and cultural identity. In Japan, the rule is generally one of open access to public registers while in Romania and S Korea government services are available, with obligatory counselling, to assist adoptees with enquiries relating to their families of origin but disclosure is subject to birth parents consent, which in respect of ‘orphans’ is often not available. Similarly in China, the fact that eligibility for adoption most usually requires a child to be legally defined as an orphan or abandoned, largely does away with any government responsibility to provide such services. In an Islamic context the issue generally does not arise.

22.3.4.1

ICA Adoptee Affiliation with Culture of Origin

For those adoptees who have grown up within a family, society and nation other than that determined by birth, it would seem important—if they are to develop an authentic identity—that they have the opportunity to reconcile any tensions arising from that fundamental disconnect. Factual information can help. Access to original birth certificates, agency files etc. will fill in many gaps and provide a personal paper trail back to their family and place of birth. For many ICA adoptees this is not enough, they also feel a need to be in touch with their culture of origin: to know its language, customs, values, ethos; experience its food, entertainment etc.; and to generally catchup on aspects of a lost alternative cultural identity. In that respect, the governments

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in countries such as China and S Korea have taken significant initiatives to reach out to their ICA diaspora and invite them back to retrieve a broader sense of ‘belonging’. Bespoke tours designed to immerse the adoptee in aspects of their cultural heritage have become popular as have international networks of country of origin ICAs that provide mutually supportive cultural reinforcement for their members. While these initiatives are important it should be added that not all ICAs want the opportunity to reclaim a supposedly lost cultural heritage; many, perhaps most, have made their personal psychological adjustments and are quite content to settle for the identity they have grown into within a modern, fluid multicultural society. As is very often the case for adoptees in general.

22.4 Adoption and Human Rights: Regulating for Structural Faults There are many instances in which claims that adoption practice violates the human rights of one or more of the parties involved are wholly justified. Some such breaches are anomalies, or arise ocassionally and incidentally as a consequence of poor practice, or are a consequence of a lack of fit with new areas of need, or simply emerge as the law evolves (see, Sect. 4.3). Others, however, are attributable to structural faults or defaults in established adoption law and policy. In the latter set of circumstances, existing regulatory safeguards are far from satisfactory.

22.4.1 International Conventions All common law jurisdictions studied subscribe at least to the United Nations Convention on the Rights of the Child 1989 (UN CRC), although it has only been signed but not yet ratified or implemented by the U.S., and to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993. The European Convention on the Adoption of Children (revised in 2008) has been ratified by the countries of the European Union and, in 2010, by the U.S. All jurisdictions (except the U.S.) have incorporated the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 into national legislation while the U.S. and others have affirmed the existence of equivalent rights within their constitutions. The civil law jurisdictions of Sweden, France and Germany are also signatories to the above Conventions. Japan, unlike China, is not a signatory to the Hague Convention but like China has ratified the Convention on the Rights of the Child (see, further, Chaps. 4 and 5). While Russia has signed but not ratified Hague it has signed and ratified the UN CRC. Australia and New Zealand, like Romania and S Korea, are signatories to both Hague and the UN CRC.

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So, all nations studied have at a minimum signed up to Articles 3 and 21 of the CRC which require respectively that ‘the best interests of the child shall be a primary consideration’ and that in adoption such interests shall be ‘the paramount consideration’. All except Japan, being Hague compliant, are equally obliged to ensure that ‘intercountry adoptions take place in the best interests of the child’ as required by Article 1. Convention associated case law—in particular that relating to the CRC principles and Article 8 of the European Convention—is steadily introducing a uniformity of approach while Hague is having the same effect as regards intercountry adoption. The question then arises—to what extent does the established adoption law and policy of the nations concerned now satisfy such Convention principles?

22.4.2 Human Rights and Domestic Adoption There are those who maintain that the almost routine absolute and irrevocable transfer of parental rights, in respect of children in the public care system, to adoptive parents amounts to a breach of birth parents’ human rights. Similar arguments can be heard regarding the use of adoption by step-parents to legally excise all links between the child, a birth parent and associated relatives. Much the same approach is sometimes taken in response to the denial of adopter eligibility on grounds of status (unmarried, age, race, gay etc.) or lifestyle (overweight, smoking, alcohol consumption etc.). Again, where adoption is restricted to children—thereby, for example, depriving disabled or otherwise vulnerable young adults from legally secured lifelong membership of their carer’s family—this is construed by some as constituting a discriminatory infringement of human rights. Then there are the battles regarding post-adoption rights of access to identifying information which are, in many countries, fought on grounds of alleged human rights infringement. Emerging case law, indicates that some such allegations may well be justified. This has been the case, for example: in Ireland, until 2017, in relation to the discriminatory non-availability of adoption for children from marital parents; in France, where the maternal right to anonymity thereby nullifies the information rights of their adopted children; and in Germany and Russia, as regards the prohibition on adoption by gay couples. Also, in Ireland as in the U.S., the lack of a legal right for adoptees to access identifying information amounts to a serious constraint on their fundamental human right to acquire an authentic identity. Many jurisdictions also fail to grant statutory recognition to the right of a child aged 14 or older to give or withhold consent in respect of their proposed adoption, contrary to the requirements of the Convention on the Rights of the Child, Article 12, and the 2008 European Convention. It is the fact that there is no consistency in the way these matters are regulated that gives rise to concern. How can benchmarks for human rights compliant practice be established, conforming to Convention endorsed principles, when the endorsing countries retain a capacity for such wide discretionary interpretation?

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22.4.3 Human Rights and Intercountry Adoption Squaring ICA policy and practice with human rights has proved controversial.9 “Some argue that international adoption is an inherent violation of human rights, depriving children of their heritage birthright”.10 This view is supported to a degree by the CRC, which places a major emphasis on the principle of ‘subsidiarity’, and consequently stresses the important roles of parents and family as the child’s primary caregivers, and requires States first and foremost to assist them when they have difficulty in fulfilling their responsibilities appropriately. Only when, despite such efforts, the child is ‘deprived of his or her family environment’, or cannot be allowed to remain there in light of his or her best interests, does the obligation of the State to ‘ensure alternative care for the child’ become operative.11 And it is only when, in that case, the State is unable to ensure that the child is ‘placed in a foster or an adoptive family’ or is cared for ‘in any suitable manner in the child’s country of origin’ that intercountry adoption ‘may be considered’. Others argue that even if it does not inherently violate human rights, ICA in many countries—e.g. Guatemala, Brazil, west Africa, Cambodia and Vietnam—provides a background culture which accommodates practices such as child procurement, falsification of paperwork and trafficking that undoubtedly do so.12 However, as Bartholet has convincingly shown,13 the fact is that as many developing nations lack the capacity to provide adequate domestic care arrangements, within a time-frame appropriate to meet the current needs of their abandoned children, the only available opportunity for the latter’s best interests to be assured—as required by the CRC and Hague—is through intercountry adoption. Of the estimated 143 million orphaned children,14 the 8 million living in orphanages15 and the 100 million street children with no available caregivers16 she says17 : … those whose parents are not dead have either been removed for maltreatment or abandoned. The overwhelming majority have no meaningful relationship with their parents, and no 9 See,

for example, Dillon, S., ‘Making Legal Regimes for Intercountry Adoption Reflect Human Rights Principles: Transforming the United Nations Convention on the Rights of the Child with the Hague Convention on Intercoutry Adoption’, 21 B.U., Int’l L.J., 179, pp. 204–208, 2003. 10 See, Bartholet, E., citing Bainham, A., ‘International Adoption from Romania – Why the Moratorium Should not be Ended’, Child & Family Law Quarterly, 15, 223–36, in ‘International Adoption: the Human Rights Position’, at: https://dash.harvard.edu/bitstream/handle/1/3228398/IA-GlP ol72409.pdf?sequence=2. 11 See, for example, Davis, M.A., Children for Families or Families for Children: The Demography of Adoption, Springer, The Netherlands, 2011. 12 See, for example, Smolin, D., in Gibbons, J.L. and Rotabi, K.S. (eds), Intercountry Adoption: Policies, Practices, and Outcomes, Ashgate, 2012. 13 See, Bartholet, E., in ‘International Adoption: the Human Rights Position’, op cit. 14 Citing, Joint U.N. Programme, 2004, at p. 7. 15 Citing, the Secretary-General, 2006, p. 16. 16 Citing: Mitchell, 2009; Bartholet, 2007b, pp. 182–83. 17 See, Bartholet, E., ‘International Adoption: the Human Rights Position’, at: https://dash.harvard. edu/bitstream/handle/1/3228398/IA-GlPol72409.pdf?sequence=2.

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likelihood of ever returning home. It is in the interests of these children, and of the parents who love them, to be placed for adoption.

As she goes on to demonstrate, this fact is one to which the judiciary in those developing nations have given unequivocal support.18 In the light of such testimony—from those best positioned to grasp the realities—coupled with little evidence of foreign governments collective willingness to invest in the health and social care infrastructure necessary for developing nations to build domestic adoption capacity, it is difficult to defend what can amount to an inert policy of ‘subsidiarity’. Ultimately the justification for ICA, whether or not in the immediate aftermath of a natural disaster, is the need for ‘child rescue’: those endangered domestically must be given the opportunity for their welfare to be safeguarded internationally. Regulating against abuses of the ICA regime should be patiently and resolutely pursued—but the urgent need of those identified as currently endangered cannot be ignored. In this context, Bartholet quite rightly reminds us of the importance of “weighing the costs of adoption abuses against the costs of human rights violations to children when they are denied adoption”.19

22.4.3.1

Concerns of the Human Rights Commission

In a 2011 Issue Paper,20 the Commission expressed its concern regarding some aspects of current intercountry adoption practice which seem at least equally worrying a decade later. It noted the continuing difficulty in securing acceptance for certain basic precepts such as: “that there is no ‘right to a family’—and thus no right to adopt or to be adopted—under international law; that determining the ‘best interests’ of children is a complex undertaking which must respect all other rights; and that ICA requires that it be subordinate to suitable domestic care solutions”.21 It identified “systemic lacunae that need to be tackled at their roots” and lists the following as examples22 : systems where the required process for declaring the adoptability of a child is neither transparent nor thorough; systems that do not allow duly accredited and authorised agencies to operate, and/or permit independent adoptions; 18 Ibid., citing: in India, Lackshmi Kant Pandi v. Union of India, A.I.R. 1984 (S.C.) 469; in Malawi,

Adoption case No 2, 2008 and In Re CJ a Female Infant of C/o, P.O.Box 30871, Chichiri, Blantyre 3 (Msca Adoption Appeal No. 28 of 2009) [2009] MWSC 1 (12th June 2009); and in South Africa, A.D. and Another v. D.W. and Others, 2008 (3) SA 183 (CC) (S Afr.,). 19 See, Bartholet, E., ‘International Adoption: the Human Rights Position’, Global Policy, Issue 1, 2010 at p. 389. 20 See, Cantwell, N., (International Consultant on Child Protection Policies), ‘Adoption and Children: A Human Rights Perspective’, the Commissioner for Human Rights, Comm DH/Issue Paper (2011) 2, Strasbourg, 28th April 2011. 21 Ibid., at p. 1. 22 Ibid., at para f.

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systems that do not provide for screening facilitators and other intermediaries in the adoption process; systems that allow prospective adopters and/or their agencies to have direct contact with residential child care facilities and, more or less directly, to “select” a child; and systems where agencies or individuals are required or allowed to make donations to the residential child care facility from which they adopt, or to provide other humanitarian assistance or financial support to the child protection system.

It commented that “where systems such as these exist, it is almost inevitable that the financial advantage of adopters and their agencies in relation to those involved in the country of origin will result in illicit activity … exacerbated by the fact that the number of foreign applicants to adopt is considerably greater than the number of ‘adoptable’ children”.

22.4.3.2

Government Support for ICA Special Needs Children

Media coverage of the experiences in the U.S. over recent years of disrupted ICA adoptions and re-homing, involving older children and those with health or social care issues, has drawn attention to the particular vulnerabilities inherent in such adoptions (see, further, Sect. 8.5.3.3). This very troubling record of many children harmed by their adopters should serve as a red flag indicating the urgent need for specialist service provision. The profile of ICA children now entering the homes of surburban western society has greatly changed and government funded service provision must change accordingly. There is every good reason for regarding this aspect of intercountry adoption as one in which the human rights of all involved are at particular risk. The range of services required will include: financial aid; trauma counselling; psychiatric and other therapies; and professional mediators able to advocate and negotiate on behalf of children’s welfare particularly in relation to health, education and social care services. The regulatory framework will need to be adjusted to address the characteristics specific to this area of ICA.

22.4.4 Equality Issues and Adoption Adoption, arguably, has a history of discrimination: preferencing younger and healthy children; older and disabled children, and those with behavioural problems, have been very under-represented; perhaps particularly in intercountry adoption. In this context, ‘disability’ is a political issue as is ‘race’, ‘gender’ and other indices of equity and equality. ‘Poverty’ is clearly a potent political issue, not only in the context of intercountry adoption, but as a factor at the heart of domestic adoption in some of the most developed nations in the world. A particularly acute political issue is the gender exploitation that typifies commercial surrogacy in the developing nations; now being compounded by the opportunities on offer through genetic editing. By playing a pivotal role in balancing public and private interests—addressing issues

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such as those relating to homosexuality, disability, racial and gender equality, ‘special needs’ etc.—adoption contributes to and reflects the particular political ethos of each nation. The fact that in democratic societies such social inclusion issues can be defined differently, and be politically ruled in or out as factors determining access to an adoption process, is recognized by the ECtHR in its ‘margin of appreciation’ rule. While this allows signatory States a degree of latitude in their dealings with such matters it also, necessarily, undermines any possibility of agreeing standardised human rights benchmarks.

22.5 Adoption in a Family Law Context Adoption law cannot function in isolation. A regulatory framework for adoption must link into the broader body of family law if overall coherence is to be maintained. This is achieved by ensuring that both are underpinned by the same network of key principles, defined and applied consistently. Putting in place such linkages, legislating to accommodate emerging issues, and orchestrating the roles played by key principles, are among the regulatory matters that ultimately fall to be resolved politically.

22.5.1 Key Family Law Principles Although there will always be room for contention regarding a definitive list of core family law principles, for present purposes there would probably be consensus that the following must be included: the legal integrity and autonomy of the family unit; the welfare interests of the child; and parental rights and responsibilities etc. (see, further, Sect. 1.6.3). This nexus of family law principles triggers specific functions in the regulatory regime for adoption.

22.5.1.1

The Legal Integrity and Autonomy of the Family Unit

Article 8(2) of the European Convention, the Preambles to the Hague Convention and the UN CRC, together with Article 5 of the latter, all give recognition to the importance of the family unit. As expressed in the UN CRC Preamble “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”. Paradoxically, as families become more fluid social entities, the legal attention given to the recognition and protection of family integrity would seem to be increasing. This is quite apparent in relation to the European jurisdictions featured in earlier chapters where a wealth of ECtHR case law has accumulated to protect a family’s composition, boundaries and assert its rights to privacy. Those chapters

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disclose many themes which link adoption, family law and human rights including: the right to found a family; the right of those voluntarily constituting a household to recognition as a family; the right of vulnerable families to state support and the right to protection from unwarranted state interference; and the importance of the availability of a range of public and private family law orders.

22.5.1.2

The Welfare of the Child

The principle that the welfare of the child must govern any decision-making regarding their upbringing is well-established in divorce and other family law proceedings and is clearly stated in Convention law—particularly in Articles 3 and 21 of the UN CRC. In all common law jurisdictions, adoption legislation states that the principle is central to the process. In England and Wales it is legislatively required to be applied as a predictive test for the lifelong welfare of the child concerned. In the U.S., Canada and in England and Wales the principle is given a paramount weighting: determining a child’s entry to the process from the public child care system; and is the statutory determinant of adoption proceedings. In Australia, the U.S., and now in England and Wales the principle raises a statutory presumption that alternative orders will be more appropriate in the context of adoption applications by step-parents. In Ireland, this principle has less influence than in any other common law jurisdiction on the decision as to either whether a child is available for adoption and if so whether he or she should be adopted. Professional representation of the child, as a means of giving effect to the principle, is accorded most weight in the courts of England and Wales and least in Ireland and in the Indigenous and Islamic communities. Romania and the civil law jurisdictions studied, being as bound by the UN CRC and the decisions of the ECtHR as Ireland and England & Wales, give an equal legal weighting to this principle as an exit criterion of proceedings. However, neither they nor Russia, nor any other jurisdiction apply the principle as in England and Wales where it constitutes the entry criterion expediting a transfer from the public child care system to the adoption process. Sweden, in particular, interprets the principle as imposing an obligation to give first preference to rehabilitating an abused or neglected child within their family of origin rather than substituting adopters for failing parents. In Germany, while the principle is similarly interpreted, institutional inertia would seem to obstruct proactive rehabilitation efforts. In the Asian jurisdictions any statutory recognition given to the child’s welfare is perfunctorily worded and it is clear that in law the principle attracts a nominal weighting; though as S Korea and China have both ratified the UN CRC it must be assumed that they recognise the obligation to prioritise welfare considerations. In an Islamic context, the principle is subject to a theological interpretation: it cannot be satisfied unless the child has an Islamic upbringing. By way of contrast, in the customary adoptions of Indigenous people, although the principle is not explicitly iterated in formal legal manner, it is given effect through a flexible interpretation which allows adoption arrangements to be adjusted, on an ongoing basis between

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adopters and the family of origin, as may be necessary to meet the particular needs of a child at any point in time. It must, of course, also be borne in mind that not all adoptions are of children. In a number of common law and civil law jurisdictions the adoption process also accommodates the adoption of adults. In such circumstances the welfare interests of the adoptee is often given less legal recognition. In Japan the principle is almost entirely reversed as it is primarily the interests of the adopters that are being served. Consent of the Child The legal recognition given to the right of a child of an age of discernment to participate in decision-making regarding his or her upbringing varies on a spectrum from acknowledgement that their views should be heard and taken into account to a statutory declaration of their right to veto any such decision. The exercise of that right varies also in accordance with age. The right of a minor to consent or withhold consent to their adoption is most evident in the laws of the U.S. and Russia.

22.5.1.3

Parental Rights and Responsibilities

A core principle at the heart of family law is that parents have primary responsibility for ensuring the wellbeing of their child; a responsibility inherently vested and one that continues regardless of marital status. This is also entrenched in Convention law: specifically in the Preamble to and Arts 5, 7, 18(1) and 27(2) of the UN CRC; Article 8 of the European Convention; and in the Preamble to the Hague Convention. Legislation and case law reveal that, in relation to the jurisdictions examined, the following are among the strands of this principle that link adoption, family law and human rights: that both birth parents, whether married to each other or not, are inherently vested with legal rights and responsibilities in respect of their child; the importance of parental consent, or at least their right to be involved in decisions affecting the welfare or upbringing of their children; parental entitlement to state support; and the need for good reason to be shown for divesting parents of their rights and responsibilities. Non-consensual Adoption and the Regulatory Regime In a child care and protection context, a regulatory regime has to balance the respective merits of parental rehabilitation and non-consensual adoption as competing options for promoting the future welfare of a child failed by parental care. In a judicial adoption process, the sequencing of decision-making by court and administrative bodies is crucial: the placement decision being most significant. In England and Wales this initial step, taken in conjunction with the legislative weighting given to the paramountcy principle, will most often determine the outcome. When a local authority employs a concurrent placement policy, together with a presumption that adoption is the preferred permanency option for young children, then a child entering the public care system (whether with parental consent or under the terms of

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a care order or interim care order) will be so placed whenever possible. This is the effect of policy prevailing over any contrary professional judgment in relation to the welfare needs of a particular child. The court approved care plan may or may not then make explicit reference to a prospective adoption placement. From that point onwards, however, the capacity of parents, Adoption Panel and court to influence the adoption trajectory is limited. The passing of time dictates that any scope for parent rehabilitation and judicial discretion will diminish as the bond between child and foster carers strengthens. Adoption is then probable—which may well be the best outcome—but the process has become determined more by administrative than judicial decision making. There is a sense in which that approach is not so far removed, in its effect, from the assumption in some countries—such as China, South Korea and to a lesser extent Romania—where, once in the public care system, a presumption takes over that the child ‘belongs’ to the state which is then free to make alternative care arrangements. The approach in some jurisdictions—notably Canada, France, until recently the U.S. and to an extent China—whereby an adjudicative decision is taken at point of entry to the public care system that all parental responsibilities are irrevocably terminated (on grounds of parental consent, death, mental illness, whereabouts unknown, abandonment, or conviction for serious child abuse or neglect) brings at least clarity and certainty to the future roles of all parties: parental rehabilitation is not an option; adoption is the intended next step to be pursued unequivocally by the appropriate state administrative body and finalised by a court order. For all such children—whether in a child care or ICA context—there is good reason for challenging the above referenced view of the Human Rights Commission as expressed in its 2011 Issue Paper (see, further, at Sect. 22.4.3.1). There are, instead, strong grounds for considering that these children do have ‘a right to a family’—and thus a right to be adopted. Arguably, for those cases involving parental inability or incompetence rather than serious criminal culpability, a court order at point of entry to the care system may be appropriate which designates either a concurrent placement in conjunction with a parental rehabilitation programme, or long-term foster care (preferably kinship) for those children—perhaps older—with established and healthy relationships with their family of origin. It would seem that the U.S. is pivoting in that direction, towards a presumption favouring family rehabilitation and away from automatically severing parental rights—under the Family First legislation—in relation to failing or failed parental care.

22.5.2 Convention Law, Family Law and Adoption: Balancing Public and Private Interests Adoption plays a distinct role within the context of family law proceedings. Although more so in the developed nations of the common law tradition than in relation to their civil law counterparts, adoption has moved from being a discrete, self-contained

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private law proceeding, to assume a much more central role. It now functions as a bridging mechanism between public and private law: an adjunct to public child care, to marriage proceedings and often to surrogacy. In so doing it has become a platform that accommodates, with difficulty, the tensions between the above principles.

22.5.2.1

The Common Law Jurisdictions

The judiciary in common law jurisdictions, perhaps uniquely, have a proven capacity to use their discretionary powers to re-interpret principles and precedents in the light of changing social need. While this has facilitated the updating of domestic legal practice to ensure Convention compliance, it has thereby accelerated and compounded tensions in the legislative balance traditionally held between private and public family law in each jurisdiction. The broadening use of adoption for private law purposes has displaced, if not absorbed, the functions once assigned to guardianship and wardship while fast becoming an optional extra following matrimonial proceedings. In public law the mainstreaming of adoption into child care provision threatens to transform the independent role of the state from ‘guardian of last resort’ to adoption agency, facilitating private family care arrangements. England and Wales and Australia would seem to have achieved the preferable legislative reconfiguration of family law. Within an infrastructure of family oriented legislation, courts and proceedings they have strategically repositioned adoption closer to public law, provided more balance between adoption and alternative private law proceedings while allowing the permeation of Convention principles to maintain overall coherence within the body of family law. In the U.S., and to a lesser extent Canada, adoption law would seem to have become essentially divided into two blocks, one dealing with proceedings relating to the public child care system and the other dealing with all other forms of adoption but with both feeding back into the private domain. As regards the U.S. this is in keeping with sharper divisions between the public and private, with a clearer emphasis on the rights of the individual in family law, while remaining exposed to the influences of a very open and mixed market ethos. In New Zealand, there are indications that the judiciary are forging the principles necessary to modernise family law which may, in time, be legislatively endorsed. Ireland in the meantime continues its struggle to resolve the tensions between Constitution constraints and Convention requirements, with a body of family law that coheres around the central construct of the marital family unit.

22.5.2.2

The Civil Law and Other Jurisdictions

In the civil law jurisdictions the public and private seem more clearly distinct and separate. Adoption in Russia, Sweden, France and Germany is firmly a creature of private family law with parental consent at its heart. This means that on the one hand there is only a marginal interface with public child care law while on the other

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adoption tends to be viewed as a public service in which all parties have a service entitlement and as such it readily attracts post-adoption support and financial assistance. In Romania, South Korea and China, adoption has been treated as peripheral to private law—being more closely associated with domestic public institutional child care and ICA—but is gradually acquiring closer links with family law. In the other jurisdictions studied, there is much more national variation in family law. In an Islamic context family law is construed theologically. For China, family law like all other aspects of Chinese society is subject to the political imperatives of central planning: currently the management of population growth is the priority, within the governing political context, as much for adoption as for family law.

22.6 Conclusion In recent years, the engineering of the adoption process has become so much more sophisticated in the developed nations than elsewhere, particularly so in the common law world and nowhere more so than in the progenitor nation of that world. The extent to which the process in England and Wales has been lengthened and broadened, the detailed nature of the inspectoral measures applied by the regulatory regime, and the role and functions of intermediary administrative bodies, reveal just how complex that process now is and illustrate the lengths to which governments must go to ensure that modern standards are satisfied. It also illustrates the importance of maintaining an overview of the process itself: added complexity tends to focus attention on stages, components and procedures; management of the parts can distract from the functioning of the whole; the central purpose—protecting and promoting the welfare of a particular child—may be best achieved outside that process. Paradoxically, added complexity and a scaling up of regulatory mechanisms is occurring simultaneously with a rapid shrinkage in the volume of adoptions. Arguably, one reason for the increased complexity of the process and the accompanying regulatory regime is that adoption has ceased to be treated by government as essentially a matter of private family law and instead is now more widely regarded as a public service. This shift has brought with it the need for the adoption process to be compliant not just with human rights, equity, equality, freedom of information and other legally required benchmarks but also with the standard indicators routinely applied to public services. As an ethos of altruism gives way to one of service entitlement so the adoption process must make room for means of auditing, of ensuring transparency, accountability and efficiency and the host of other aspects of service provision that must now be taken into account, weighed, measured and prioritized.

Chapter 23

Politics and a Contemporary Social Role for Adoption

23.1 Introduction In concluding The Politics of Adoption, this chapter reflects on the political dimension to the social role of adoption—as evidenced in the law, policy and practice of many nations examined in the preceding chapters—and gives some consideration to the likelihood and desirability of a further phase of political re-shaping. Beginning, as did the book, with a broad historical overview, this chapter examines the relationship between politics and the social role of adoption: it supplements the focus on the mechanics of the adoption process in the preceding chapter by analysing the social purposes now served by that process. The bulk of the chapter examines the nature and extent of jurisdictional differences as regards the politically defined role of adoption in contemporary society. Drawing from material in Parts 3, 4, 5 and 6, it compares and evaluates jurisdictional differences in three areas crucial to that social role: re-configured families (step, kin and same sex); children in the public care and protection system; and intercountry adoption, including the complications arising from international trafficking and commercial surrogacy. It concludes by considering some challenges that lie ahead for adoption as a social construct.

23.2 Politics and the Social Role of Adoption Adoption and politics have always been linked: the social role of the former being shaped by the exigencies of the latter, within a body of family law coloured by the cultural norms prevailing in a society at any point in time. Little has changed in that respect. In recent years, however, layers of complexity have been added by the steadily growing globilization of the political dimension and by the adjustments required to allow adoption to meet the needs of increasingly sophisticated societies with their divisive inequalities.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4_23

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23.2.1 Historical Perspectives The use of adoption to achieve political ends has been evident throughout history and in many different cultures. In Roman times an emperor would adopt a successful general to continue his rule.1 In Ireland under the Brehon Laws the reciprocal placements of children between clans was an accepted means of cementing mutual allegiances.2 In Japan the adoption of non-relatives was traditionally seen as a means of allying with the fortunes of the ruling family.3

23.2.1.1

Legal Origins

Evolving within countries sharing the common law tradition and drawing from the same pool of case law, adoption in that context would seem to have broadly retained much the same set of legal characteristics. This, of course, is hardly surprising as the countries concerned shared the same colonial experience, taking the values, laws, institutions and many of the children from the heart of the British Empire to its constituent parts. These characteristics resonate with the concerns of Victorian England to maintain a structured society with a distinct value system as illustrated by a careful attention to matters of status. There is also a broader resonance, shared not only with the civil law nations but to a varying degree with the other jurisdictions studied, which has its origins in the definition of adoption as construed in Roman times. The Emperor Justinian, in the Codex Iustinianius 8.47.10.1a-g,4 gave specific recognition to a legal distinction between ‘full’ and ‘simple’ forms of adoption accompanied by clearly defined differences in their corresponding social roles. The Justinian taxonomy echoes down the millennia, across many different cultures and is still very much in evidence in the legal traditions represented by the jurisdictions that were the subject of this study.

23.2.1.2

As a Political Strategy

The willingness of government to use adoption as a political strategy has been apparent from the days of the British Empire when it was seen as a means of consolidating colonial settlements. An extension of that approach emerged in the ‘orphan trains’ of the late nineteenth century which saw an estimated 200,000 children transported across the U.S. from the urban centers of the east to the nation’s rural regions

1 See,

Gibbons, The Decline and Fall of the Roman Empire Harrap, London 1949 at p. 30. Gilligan, R., Irish Child Care Services: Policy, Practice and Provision Institute of Public Administration, Dublin, 1991. 3 See, Gibbons, The Decline and Fall of the Roman Empire, op cit. 4 Justinian’s reform of the law relating to adoption, and to the family more generally, were undertaken in 529 AD. See, further, Borkowski, A., Textbook on Roman Law, London, Blackstone, 1994, p. 138. 2 See,

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where again they were informally adopted or indentured to strengthen weak communities.5 It was apparent in Australia where it was used to further the assimilation of the Indigenous people6 as it was to a lesser extent in the U.S.7 and Canada.8 The enforced deportation of many thousands of children from the conquered countries of Europe for adoption in Germany was deployed as a Nazi strategy to strengthen the Aryan character of the Third Reich. Again, in El Salvador, followed by a similar experience in Argentina and Chile during the rule of the military juntas, secret arrangements were made for the adoption of several hundred newborn babies of ‘the disappeared’ to reward supporters of the regime and to further intimidate its opponents.

23.2.2 Adoption and Religion The strong interconnection between religion and adoption predates the latter as a statutorily defined legal process and is probably as old as the religion to which it is connected. Christianity, Islam and Judaism, and in all likelihood other religions, each have an historical adoption narrative which speaks to their respective religious values. In recent years, as religion has become more socially divisive and politically contentious, nationally and internationally, the related clashes and tensions have also had repercussions for adoption services. While it is impossible at present to do justice to this intriguing topic, it is equally impossible to wholly ignore it. The following is little more than a brief and perfunctory glance at a subject which deserves an in-depth study.

23.2.2.1

Role of Religious Organisations

Unquestionably, religious organisations have played a leading role in adoption practice, in laying the foundations for adoption services and probably in shaping the initial statutory framework for the adoption process in many countries, certainly in those of the common law tradition. The commitment, resources and staff of such organisations, applied to rescue children bereft of carers in the countries currently studied and many others, saved the lives of countless children and paved the way for today’s adoption services. There is also evidence of their being complicit in what amounts—with 5 See,

for example, Creagh, D., ‘The Baby Trains: Catholic Foster Care and Western Migration, 1873–1929’, Journal of Social History, Vol. 46, Issue 1, 2012, pp. 197–218. 6 See, Bird, C., The Stolen Children; Their Stories, Random House, Australia, 1998. 7 See, for example, Haskins, V. and Jacobs, M.D., ‘Stolen Generations and Vanishing Indians: The Removal of Indigenous Children as a Weapon of War in the United States and Australia, 1970– 1940’, in Marten, J. (ed.), Children and War: A Historical Anthology, New York University Press, NY, 2002. 8 See, for example, Jacobs, M., A Generation Removed: The Fostering and Adoption of Indian Children in the Post-War World, University of Nebraska Press, 2014.

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23 Politics and a Contemporary Social Role for Adoption

all the advantages of hindsight—to involvement in ‘trafficking’; arranging for children, particularly infants, to be surreptiously removed and transported to countries and families judged more conducive to furthering the desired religious upbringing. The organisations were, of course, religion specific and adoption was one aspect of the outworkings of their particular values: proselytism went hand-in-hand with an organisation’s adoption work. Just as adoption reflected their religious values so also did intervention with the associated issues of non-marital sex, unmarried mothers, abortion, same sex couples etc. This approach, which probably contributed positively to building community solidarity among the likeminded, in ages past, has not fared so well in the twenty-first century when exposed to a human rights awareness that has little tolerance for any form of discrimination, whether religious based or otherwise. Consequently, many religious organisations have run into legal difficulties when they sought to perservere with religion specific adoption services. In the U.S., as in the U.K.9 and elsewhere, religious organisations that had delivered adoption services for many years chose to close down when faced with the challenge of human rights and equality legislation requiring them to end discriminatory practices. The difficulties that beset Catholic Charities in the U.S. are indicative of the problems that can arise when the traditional values of faith-based organisations encounter modern anti-discriminatory legislation. Ultimately that organisation chose to terminate its adoption work rather than continue to place children with gay couples (see, further, Sect. 8.4.2.1). Nonetheless, some powerful religious organisations continue to exercise considerable political and media leverage in shaping attitudes towards the contemporary social role of religion and as regards the above associated issues. For example, in the U.S., Bethany Christian Services maintains its place as America’s largest adoption agency, with 81 offices in 31 states and an international presence in 17 countries while the National Council for Adoption lobbies effectively on behalf of its membership of Christian adoption agencies.10

23.2.2.2

Political Influence

The extent to which both religion and adoption have been and continue to be influenced by politics—and vice versa—is inestimable. Clearly in staunchly theocratic nations, such as the Islamic states, all aspects of adoption law and practice are required to be wholly compliant with religion as politically defined and enforced. In other countries such as Ireland, the traditional mutuality of interest between government 9 See,

for example, Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales [2011] Eq LR 597. 10 See, also: the National Association of Evangelicals, the largest conservative Protestant group in the U.S.; the National Conference of Catholic Bishops; the North American Presbyterian and Reformed Council; the Association of Gospel Rescue Missions and the National Association of Evangelicals; and Christian Churches Together, a new co-operative effort involving faith groups from five families within Christianity—Evangelical/Pentecostal, Historic Protestant, Orthodox, Racial/Ethnic, and Roman Catholic.

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and the dominant Church has been—and, if to a lessening extent, continues to be— reflected in the politics relating to adoption and to accessing services such as abortion, impartial pregnancy counselling clinics etc. Where, as in England & Wales, the religion is represented by an ‘established Church’ then that mutuality is overtly institutionalised. In the U.S., the political significance of religion is evident in the White House Office of Faith-Based and Community Initiatives, the network of state based similar offices and in the current rash of state based legislation designed to exempt from equality and anti-discrimination those health care professionals who object—on grounds of religion/conscience—to certain areas of public service provision, such as abortion. It is constantly demonstrated in the ongoing culture wars with their frontlines entrenched along a line of issues such as marital status, pro-life or pro-choice, gay marriage, government funding of religious education, and a host of SOGI issues and other areas of proxy religious contention. Needless to say, many of these issues directly impact upon the potential pool of adopters and adoptees.

23.2.2.3

Religious Adherence and Adoption

Religion has probably always been among the motivations for adoption. For many the line between altruism and religious duty is a fine one and it can also, happily, be congruent with a personal need to parent in circumstances where adoption is the only option. However, as the developed nations have become more accustomed to a culture of equality and human rights, so government policy has required the secularisation of adoption and other public services. The presence or otherwise of religious motivation is no longer particularly relevant as an indicator of adopter eligibility or suitability. In rationalising the secular approach, a member of the English judiciary recently commented that “no one is asserting that Christians (or, for that matter, Jews or Muslims) are not ‘fit and proper’ persons to foster or adopt.”11 The political will to extend secularisation by ironing out any discretionary capacity to permit religious preferencing can also be seen in a recent legislative initiative which repealed the requirement in s 1(5) of the Adoption and Children Act 2002 that “due consideration to be given to religious persuasion, racial origin and cultural and linguistic background” when placing a child for adoption in England.12 Nonetheless, as noted in the jurisdiction specific chapters, vestiges of the traditional right to direct the future religious upbringing of an adopted child can still be found in the legal entitlement of birth parents in some countries to give consent subject to such a condition. The general move towards secularisation has generated considerable resistance, particularly in the U.S. and this has impacted upon adoption. Christian evangelism would seem to have become a conspicuous factor in contemporary U.S. adoption 11 See, Johns & Anor, R (on the application of) v. Derby City Council & Anor [2011] EWHC 375 per Munby P. 12 Repealed by s 3 of the Children and Families Act 2014. The ‘due consideration’ provision remains valid for adoption law in Wales.

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23 Politics and a Contemporary Social Role for Adoption

practice. The phenomenon of evangelical Christians, encouraged by their Churches, pursuing independent adoptions in countries such as Somalia is worrying (see, further, Sect. 8.5.3.3). As Scherman puts it13 : Led by the urging of their evangelical faith, countless would-be-adopters circumvent national and international laws and policies in the drive to save the children – laws and policies enacted to ensure that children are not brokered for sale …

This development is yet further evidence of a resurgence in Christian fundamentalism. It provides testimony to both the impact of a revived religious dimension on contemporary adoption practice in the U.S. and to the present inability of politics to effectively address what is rapidly becoming an acute source of social polarisation and volatility that threatens to destabilise civil society in a number of the countries studied.

23.2.3 Contemporary Perspectives Adoption continues to be profoundly affected by politics both on a domestic and international basis. Domestic political initiatives, as noted above, can radically affect international adoption.

23.2.3.1

Direct Political Influence in a Domestic Context

Political influence on the use of adoption in a domestic context is evident in many different ways including: the political initiatives of President Clinton in the U.S.14 and of Prime Minister Blair in the U.K.15 to actively promote and support the nonconsensual adoption of children from the public care system; in deciding, as in Russia and China that gay couples are not legally entitled to adopt; if adults are eligible adoptees; and in the provision, or otherwise, of post-adoption support services and adoptee entitlement to access identifying information from official sources without being subject to a birth parent veto. Whether, in circumstances of failing parental care, government money is directed towards providing the long-term support services necessary to allow safe rehabilitation of children with their parents, or towards expediting the transfer of care responsibility to adopters, is becoming a particularly critical political issue for western nations. As pressure increases—from the pandemic related 13 See, Scherman, R., ‘Doing More Harm than Good: Misguided Salvation in the Evangelical Move-

ment’ in her review of Joyce, K., The Child Catchers: Rescue, Trafficking and the New Gospel of Adoption, Public Affairs Books, NY, 2013; PsycCRITIQUES, December 25, Vol. 58, No. 50, 2013. 14 In December 1996, President Clinton issued his Executive Memorandum on adoption and in 1997 the Department responded with the Adoption 2000 report. 15 In July 2000, the Performance and Innovation Unit of the Cabinet Office, acting under the direction of the Prime Minister, assessed the need for change and published The Prime Minister’s Review: Adoption.

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global economic recession, the ‘migrant crisis’, unfavourable demographic trends, the growing numbers of prospective adopters, and the concern of child protection workers—the issue of whether to invest scarce resources in parents who have proven unwilling or unable to provide good enough parenting is becoming a serious political challenge. Political initiatives, such as that taken in the Ukraine to declare 2008 ‘the year of adoption’, can greatly boost domestic adoptions. More recently, this was also demonstrated in South Korea when, in 2012, the Korean National Assembly implemented the Special Adoption Law which was specifically intended to give precedence to domestic adoption. Similarly, in Russia when, on July 3rd 2013, the government introduced Federal Law No 167-FZ specifically in order to “improve the mechanisms of legal, organizational and psychological-pedagogical support of Russian citizens intending to adopt” and to facilitate adoption procedures.

23.2.3.2

Direct Political Influence in an Intercountry Context

Most obviously, the effect of direct political influence can be readily seen in the framework of international Conventions, protocols and other legal measures painstakingly put in place over some decades to which many countries now voluntary subscribe and, to a greater or lesser extent, strive to implement. By 2020, the Hague Convention alone had attracted the endorsement of 102 signatory states and become a powerful influence on the law and practice of those states and on others that have yet to become fully fledged parties. Acceding to Hague, for example, resulted in Guatemala having to cease its involvement in ICA as its standards of practice were found to violate the Convention. Political influence also often results from initiatives more limited in scope and with less planning involved (see, also, Sect. 5.3.2.1). Again, Columbia is a Hague signatory state but one that has imposed strict political parameters on the eligibility of its children for ICA: they must be over the age of 7, or have special needs or be part of sibling groups; in short, it is a child’s needs for a standard of health and social care that cannot be readily provided domestically, not the parenting needs of adopters, that will determine the terms of the country’s engagement in ICA. In December 2012, Russia specifically prohibited all further intercountry adoptions to the U.S. following incidents in the latter country where an adopted Russian child had died through parental neglect in the U.S. (one of an estimated total of 19 Russian adoptees killed by their U.S. adopters16 ) and another had been premptorily returned to Russia (see, further, at Sect. 20.2.2.1).17 So, also, in South Korea where the above-mentioned law introduced by the government in 2012 explicitly discouraged intercountry adoption and similarly in Romania, where the government—in 16 Author

acknowledges advice from David Smolin on this matter (note to author, 27.11.2014). further, Clover, C., ‘Russia bans Adoption by U.S. Citizens’, Financial Times, (Dec 28, 2012) at: https://www.ft.com/cms/s/9abc9eb2-5032-11e2-a231-00144feab49a,Authorised=false. html?_i_location=http%3A%2F%2Fwww.ft.com%2Fcms%2Fs%2F0%2F9abc9eb2-5032-11e2a231-00144feab49a.html%3Fsiteedition%3Duk&siteedition=uk&_i_referer=#axzz3Hdev3vIi.

17 See,

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23 Politics and a Contemporary Social Role for Adoption

response to political pressure from the EU18 —imposed moratoriums on intercountry adoption in 2001 and in 2004 (see, Sects. 17.2.2.1 and 15.2.2.1). In May 2007, China instituted new lifestyle rules for foreign adoptions which included: that a single woman may adopt a child but only a special needs child and must sign an affidavit that she is not a lesbian; a prohibition on adoptions by foreigners who are morbidly obese, who have facial deformities, or who have taken antidepressants for serious mental disorders in the past two years; also prohibiting blind applicants, or applicants who have schizophrenia or a terminal disease. This political directive has severely impacted upon and reduced the range of prospective intercountry applicants.

23.2.3.3

Domestic Politics with Indirect Influence in an Intercountry Context

The flow of children from long established sending countries has often been radically affected by their internal politics. In Romania it began immediately after the political overthrow of the Ceau¸sescu regime in 1989 which opened up a country that for decades had been virtually closed to all forms of western intervention. This resulted in the discovery of appalling orphanage conditions and the subsequent outward flow of an estimated 10,000 intercountry adoptions in 1990 and 1991. In South Korea, such was the devastation to the economy in the aftermath of the war, combined with the number and racial mix of the orphans needing homes, that the government considered it had no alternative other than to arrange for adoption overseas. Again in Russia, the introduction of Federal Law No 167-FZ “on the amendments to certain Russian laws on care for orphans and children left without parental care” also affected non-Russian adopters. The law amended Article 127 of the Family Code to prohibit adoptions by same sex couples and thereby abruptly terminated all intercountry applications from gay couples. In China, the capacity of domestic politics to affect intercountry adoption was graphically demonstrated in government efforts to manage population growth through implementation of a one-child policy. This resulted in very many Chinese girls being relinquished for adoption abroad as their parents exercised a preference for a male child. It was demonstrated again when in 2006 China ratified the Hague Convention. The effect of that political initiative was seen in a fall in the annual number of ICAs from more than 14,000 in 2005 to 6000 in 2009 (see, further, Sect. 19.2.1.1).

23.2.3.4

Domestic Political Activism

In the UK especially, but also generally in western Europe and to a large extent in north America, there is a settled definition of adoption, its social role, the mechanisms 18 See, further, at: https://www.dw.com/en/eu-calls-on-romania-to-maintain-moratorium-on-adopti ons/a-1796941.

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for running the process and an acceptance that the whole business is best left to the many professionals and mediating agencies involved. The status quo seldom attracts public protests or campaigns lobbying politicians for changes in adoption law. There are exceptions, however, even in those countries. They have seen campaigns such as: to extend adopters eligibility to include single homosexual persons and same sex couples; to recognise and apologise for the forced adoption of indigenous children; to end birth parent vetoes on adoptee access to identifying information etc. While important, such challenges have been aimed at adjusting rather than fundamentally changing the existing adoption process. In that respect they differ greatly from the activism generated and continuing in countries such as Romania and S Korea. Unlike the political change levered from the top down—as mentioned above in China—the grassroots activists in S Korea, for example, tend to be adoptees, or ‘end users’ of the adoption process, who are campaigning with considerable success to shut down their country’s contribution to ICA. There, as in Romania, activists are also deeply engaged in lobbying government to improve welfare benefits and other forms of support that would enable unmarried mothers to care for, rather than relinquish, their infants. Such contemporary organised activism, directed towards changing laws and policies that fuel the adoption process, resonates with that of the Australian Relinquishing Mothers Society (ARMS) some generations earlier in Australia which found solidarity in a mutual support membership that lobbied government to implement similar changes. Again, in those and other countries, activists are also campaigning to counter the stigma and discriminatory attitudes that continue to disadantage adoptees. This book would be deficient and guilty of a disservice to those involved if it failed to at least note in passing the significant political impact made by activists in reshaping the adoption process at different times and in various countries—such as in S Korea.19

23.3 Fixing Re-configured Families: Step, Kinship and Same Sex Adoptions National statistics relating to increased annual rates of marriage breakdown, unmarried parents and re-marriage—as recorded in the jurisdiction specific chapters— unfortunately provide ample evidence of the social instability that leads to greater numbers of vulnerable children in care and/or requiring alternative family care through adoption. In all jurisdictions studied it has long been customary to use adoption as a remedial legal band-aid to repair or restore boundaries for disrupted families. Adoption, which had become accepted as an almost routine adjunct to secomd marriages, is now becoming similarly accepted in some countries as an adjunct to surrogacy. Additionally, statutory law in many countries has extended adoption rights to same sex couples, with some variation in entitlement according to marital status. 19 See,

further, for example at: https://www.cnn.com/2013/09/16/world/international-adoptionkorea-adoptee-advocates/index.html and https://kimparknelson.org/publications/.

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23 Politics and a Contemporary Social Role for Adoption

23.3.1 Step-Adoption In England & Wales, adoption policy has finally taken a stand against the previous fairly automatic granting of orders to step-parents. They are now required to show why adoption, rather than any other order, would be a better means of promoting the welfare of the child concerned. The fact that the law has been simplified by the removal of the legal anomaly requiring such an applicant to apply jointly with the birth parent, thereby permitting sole step-parent applications, is beside the point. Alternative permanency orders, including access to parental responsibility by agreement or court order, and parental responsibility or special guardianship orders are now available options for step-parents. In Canada, while guardianship is an alternative for step-parents it is seldom the chosen option. In Australia, as in England & Wales, step-parents are required to show good reason why any other order or none would not better serve the welfare interests of the child. This is quite contrary to the approach in the U.S. and in Ireland. It remains to be seen whether the political adjustment initiated in England & Wales will succeed or whether, as in the past, the judiciary will undermine legislative intent by not availing of special guardianship and not probing the appropriateness of step-adoptions. In Germany the majority of annual adoptions are in favour of step-parents; the alternatives of custody or guardianship orders are seldom used. Similarly in France and Sweden there is a long-standing policy to allow consensual step-adoptions, though in both they are restricted to adoption in its ‘simple’ form; step-adoptions are viewed as a distinctly inferior form of adoption and one not to be encouraged. The blood-link ethos, so central to Japanese and Islamic cultures, has always militated against use of this form of family adoption in those jurisdictions because of its capacity to obscure bloodlines. In contrast, the legislation would seem to positively encourage step-adoptions in China. As Menozzi and Mirkin have noted, “data compiled by the United Nations Population Division indicate that adoptions by step-parents are fairly widespread and account for approximately one-third of domestic adoptions in countries with relevant data”.20 The fact that such a large proportion of all adoptions is simply comprised of spouses adopting their partner’s children from a former relationship, where there is no real ‘welfare’ component and indeed usually no change at all to the circumstances of the children involved, is an interesting phenomenon and one that requires analysis. The little attention given to this aspect of adoption is usually restricted to deploring the legal effect it has on the relationships between the child concerned and their other birth parent and associated relatives. It is widely considered to debase the adoption ‘currency’. However, it clearly serves a social function that for many years and in many different countries has persistently been considered sufficiently important to attract such a large proportion of all adoption applicants. The pros and cons of step-adoptions deserve to be examined and debated more fully than has yet been the case. 20 See,

Menozzi, C. and Mirkin, B., ‘Child Adoption: A Path to Parenthood?’, 2007, p. 5, at https:// paa2007.princeton.edu/download.aspx?submissionId=70610.

23.3 Fixing Re-configured Families: Step, Kinship …

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23.3.2 Kinship Adoption In the U.S., a strong policy of support for kinship adoption emerged some decades ago. This significant development presents a challenge to established practice elsewhere. It contrasts with present policy in England & Wales21 and in Australia, both of which favour diverting relatives and step-parents towards alternative orders. However, kinship adoption is growing in use as an option for children in care as is apparent from current practice in the U.S., Canada and New Zealand. In Ireland the traditional policy of facilitating adoption by family members continues. In the civil law countries kinship adoptions are a respected and valued function of the adoption process: in France they are common but almost always ‘simple’ rather than plenary; while in Sweden they are often utilised in respect of children in care. Kinship adoption retains its traditional popularity in an Indigenous context and among Asian cultures. In an Islamic context and in S Korea, for reasons to do with the duty to honour bloodlines, this is the most socially acceptable form of adoption.

23.3.3 Same Sex Adoption Not all jurisdictions permit same sex marriages, nor adoption by same sex couples and the ECtHR has so far refrained from making any ruling specifically declaring that such couples have an entitlement to those rights. Nonetheless, in the majority of countries studied there are now laws granting rights in both respects: though in some the right to adopt is restricted to married couples; but even if approved to adopt, ICA applications from such couples will be automatically rejected by countries such as Russia, S Korea, Romania and China. The extension of adoption rights to same sex couples is not only an important indicator of the social legitimacy of such family units and a benchmark for equality standards in the country concerned but is also of very real practical value in terms of the legal status, rights and responsibilities conferred on the family and its members. In countries where adoption by same sex couples is not legally possible—as in Russia, S Korea, Romania and China—the couples will often circumvent the restriction by one partner applying ostensibly as a single applicant. The evidence is both that a growing number of same sex couples are looking to adoption as a means—commercial surrogacy being another—of ‘normalising’ the social role of their family and as a means of securing its boundaries and that adoption is no more prone to disruption in the context of a same sex relationship than in a heterosexual one.

21 Re

W (A Child) [2016] EWCA Civ 793 which established that there was no right or presumption for a child to be brought up by her natural family.

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23 Politics and a Contemporary Social Role for Adoption

23.4 Child Care Adoption The politics involved in the choice between providing government support for ‘failing’ families or for new adoptive families, in respect of children from the former group who have been admitted to care, has become quite contentious. As has been said22 : England is unusual in Europe in even permitting adoption without parental consent, indeed in the teeth of parental opposition—what I shall refer to as ‘non-consensual adoption’—and even more unusual in the degree to which it has recourse to non-consensual adoption.

In 2014, only three out of 28 European Union countries allowed non-consensual adoption from the public care system.23

23.4.1 State Policy for Non-consensual Adoption In developed common law nations such as the U.S., the U.K. and Canada political pressure has seen adoption used to optimise opprtunities for permanent family life for children failed by parental care to free up the public child care system. In fact, as mentioned above, direct political leadership, exercised first by President Clinton and then followed by Prime Minister Blair, introduced fundamental change to the accepted role of adoption in both countries. There are powerful arguments in favour of this policy: international adoption scholars such as Bartholet24 maintain that every child has an entitlement to a family as a matter of basic human rights; the ‘attachment’ doctrine indicates that children must, from a young age, be given an opportunity to settle in secure, loving and enduring relationships25 ; and the research findings comparing outcomes for children reared in adoptive homes rather than consigned to foster care or institutions strongly favour the former.26 The U.S. initiative to expedite the flow of children from the public care system into the adoption process, by substituting the welfare principle for the parental right to withhold consent, has been followed in England & Wales and in Canada, but not in New Zealand and Ireland, and is beginning to gain traction in Australia. It would seem to be predicated on a belief that safe permanent care for a child is 22 See,

In the matter of N (Children) (Adoption: Jurisdiction), [2015] EWCA Civ 1112, per Sir James Mumby, President of the Family Division, at para 7. 23 See, the Peti Committee Report, ‘Adoption Without Consent 2016 Update, at: https://www.eur oparl.europa.eu/RegData/etudes/STUD/2016/556940/IPOL_STU(2016)556940_EN.pdf. 24 See, Bartholet, E., ‘International Adoption: The Human Rights Position’, Global Policy, Vol. 1, Issue 1, pp. 91–100, 2010. 25 See, Rushton, A., ‘A Scoping and Scanning Review of Research on the Adoption of Children Placed from Public Care’, Clinical Child Psychology and Psychiatry, Vol. 9, Issue 1, 2004, pp. 89– 106. 26 See, for example, Buckles, K.S., ‘Adoption Subsidies and Placement Outcomes for Children in Foster Care’, at: https://www3.nd.edu/~kbuckles/adoption.pdf.

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more readily achieved by investing public resources in supporting non-consensual adoption than in supporting failed or failing parental care. It is a policy that will have to be carefully managed if it is to avoid resulting in cases that breach the right to privacy of family life as protected by Article 8(2) of the European Convention. The latter requires evidence that support services or an alternative order would not be a more proportionate response and obviate the need to make such a draconian intervention as a non-consensual adoption order.

23.4.1.1

Reprising Non-consensual Adoption

While it may be premature to label it as such, as of 2020 the indications are that the U.S. has embarked on something resembling a U-turn in respect of a policy which it did so much to initiate and to mainstream as a legitimate strand in public service provision for families and children. Should this prove to be the case, and the U.S. does in fact restrict the grounds warranting the complete severance of parental rights— a precursor to non-consensual adoption—and instead redirects substantial funding towards the support of failing families, it will significantly impact the politics of adoption in that country and internationally.

23.4.1.2

State Support Services

In addition to any general public services that may be available to adopters, the viability of child care adoption depends greatly upon specialised, readily accessible and consistent support services.

23.4.2 State Policy Against Non-consensual Adoption A different approach prevails within the non-common law jurisdictions. Political pressure is used to restrain invasive state intervention and give priority instead to protecting the legal integrity of birth familiy units. There are no non-consensual adoptions from the public care system in Germany, France or Sweden and the latter regards with some skepticism the policy in the U.K. and U.S. of moving children who have often been for some years in satisfactory foster care to adoption placements with ‘strangers’. While legally possible in Romania, S Korea and Russia27 it is rarely utilised. Again, Japanese and Islamic adoption policy prefers to rely on wellresourced institutional care and long-term foster placements than to emulate the approach pioneered by the U.S. and the U.K, while China is exceptional as it does not have a statutory counterpart to the public child care and protection systems typical of modern western nations. 27 See,

the Family Code, s 130.

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23.4.3 Correlation Between Children in Care and ICA Every year thousands of couples in the developed western nations privately finance the creation of family life by adopting children overseas. Every year there are tens of thousands of children, expensively maintained in the public care systems of those same nations, who are in need of just such family life. This seemingly unreconcilable equation presents a paradox that is an inconvenient but deeply rooted theme in the politics of adoption. In many modern western countries there would seem to be a correlation between a rise in ICA and the existence of a government policy preventing the adoption of children in the long-term care of the state due to parental fault or default.28 Even where that policy is facilitative there may still be a correlation: prospective adopters seeking an infant have traditionally been more likely to do so by choosing the intercountry route as children available from the care system are usually at least three years old; consequently, while infants comprise only 2% of all children adopted from domestic foster care they constitute almost half of those adopted internationally. An inevitable outcome of a non-facilitative political policy is that the numbers of children available for domestic adoption are restricted which redirects prospective adopters to other jurisdictions.

23.5 Intercountry Adoption The phenomenon of intercountry adoption is only wholly comprehensible within a political frame of reference.29 The flow of children, particularly in the aftermath of war, has often amounted to politics by proxy (see, further, Sects. 1.3 and 5.3). More recently, the outsourcing of supply to meet the otherwise unassuageable needs of domestic adopters has had to be addressed, if not yet satisfactorily regulated, by means of international political initiatives. Indeed, the context for intercountry adoption is so susceptible to clear and overt political pressure that perhaps, as Briggs asserts, “to adopt a child is to participate in foreign policy”.30

28 Although

it has to be said that Hayes was unable to substantiate any such inverse correlation when comparing rates of ICA with domestic adoptions more broadly (i.e. not specific to child care). See, further, Hayes, P., ‘Intercountry Adoption: A Comparative Analysis of its Effect on Domestic adoption Rates’, Full Research Report, ESRC End of Award Report, RES-000-22-1840. Swindon: ESRC, 2009. 29 See, further, at: https://www.unicef-irc.org/publications/pdf/digest4e.pdf. 30 See, Briggs, L., ‘Mother, Child, Race, Nation: the Visual Iconography of Rescue and the Politics of Transnational and Transracial Adoption’, Gender and History, Vol. 15, Issue 2, 2003, pp. 179–200.

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23.5.1 Beginnings As has been noted, the political dimension to intercountry adoption was first starkly evident in the policy that saw hundreds of thousands of children shipped abroad from England in the eighteenth, ninteenth and early twentieth centuries to informal adoption arrangements in its colonies. It would seem fair to view this as a precursor to both contemporary intercountry adoption and to the associated risks of “trafficking”. The political dynamic was then interestingly different from the modern version: arguably, an inversion. After all, the British Empire was then at its height: the children were being sent from what was the richest and most powerful country in the world; and were being received by colonial settlers struggling to make their way in ‘the new world’. The argument that the incentive was to reduce the Poor Law costs of maintaining children in workhouses would seem to lack credence; no other nation was better able to bear that cost and no others then needed to take such measures. The political incentive lay, more likely, in the crude calculation that primarily this would serve to further strengthen the colonies and bind them to the motherland: the children took their culture with them in what was a culture specific (and, of course, racially congruent) transaction as an intended benefit for adoptee and adopters; reducing the sending nation’s child care costs was probably no more than an incidental bonus.

23.5.2 Disaster Relief Response In the immediate aftermath of a natural disaster, as in the Haiti earthquake, or one caused by humans, as in the Vietnam war, the ‘child rescue’ instinct triggers a predictable altruistic response—save the children. Intercountry adoption lends itself as a readily available legal process for speedily achieving what, in the circumstances, seems like an appropriate humanitarian intervention in a crisis where no other solution is feasible. The timeframe for decision-making in the teeth of a disaster is brief: the chaos, number of victims, scale of disruption, and lack of information often leaves only a slight window for decisions on the future of individual children. There is a sense in which this form of ICA can be seen as understandably and commendably politically neutral (see, also, Sect. 5.6.1.1). On the other hand, however, it can be argued that child rescue in a crisis situation— whether this occurs in a domestic child care and protection context or following a natural disaster—is not always best addressed by ‘stranger’ adoption. Fundamental principles of parental consent and the lifelong best interests of the child, should still govern decision-making. State intervention to remove the need for such consent by designating a child an ‘orphan’31 or the parent/s abusive or neglectful is not always

31 See, Kim, J., ‘An “Orphan” with Two Mothers: Transnational and Transracial Adoption, the Cold War, and Contemporary Asian American Cultural Politics’, American Quarterly, Vol. 61, Issue 4, pp. 855–880, (2009).

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appropriate or sufficient32 and may be little more than a cynical ‘book-keeping’ exercise to ease a transfer that appeases all parties. When the trauma subsides, the obligations to attempt the rehabilitation of child and birth family, or consider the default preference for kinship care, should guide the next step in determining the child’s future. A premature rush to adoption clearly forecloses all other possibilities, may well breach the human rights of birth parents and kin, and could compromise the child’s lifelong welfare interests. In reality the issue of whether or not ICA is included in the resources of first responders is political: the governments concerned can choose their mode of intervention and permit or deny that of others—such as the international adoption agencies. The Spanish government’s policy of prohibiting the use of ICA in such circumstances clearly testifies to that interpretation, as did a similar decision in Pakistan following the 2004 earthquake in that country.33 It is a position also recognised by the Special Commission of the Hague Convention which has urged that34 : No new adoption applications should be considered in the period after the disaster or before the authorities in that State are in a position to apply the necessary safeguards.

23.5.3 Intercountry Adoption Policy Shaped by Domestic Pressures While it is possible to argue that the welfare interests of the children concerned play an important part in the ICA dynamics of supply and demand it cannot be said the process is driven solely by altruistic concerns. Unquestionably, there are other factors in play: a reward element for the donor countries, which thereby avoid child care costs, and for the many independent adoption agencies and other intermediaries that operate on a for-profit basis; a cost component which denies access to the many able and willing to parent but unable to pay the considerable fees involved, involves loss of the adoptee’s birth family and cultural links, and rejects the psycho-social needs of the very many prospective adopters queuing to acquire the child unavailable to them by any other means.

23.5.3.1

Pressures of Demographic Trends and Fertility Rates Within Receiving Countries

A crucial factor in the ICA supply and demand dynamic is the inexorable logic of demographic trends and fertility rates that, for the foreseeable future, will continue to 32 See, Högbacka, R., Global Families, Inequality and Transnational Adoption: The De-Kinning of First Mothers, London, Palgrave Macmillan, (2016). 33 See, Selman P., ‘Intercountry Adoption after the Haiti Earthquake: Rescue or Robbery?’, Adoption & Fostering, Vol. 35, Issue 4, pp. 41–49. 34 See, Recommendation 39 of report by the Special Commission on the Practical Operation of the Hague Convention (17–25 June 2010) at: https://www.hcch.net/upload/wop/adop2010concl_e.pdf.

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fuel demand in most western developed nations. These trends strongly suggest that the upcoming generations of these nations will pay a heavy socio-economic penalty for the longevity achieved by this one, as the tax burden for the health and social care of the elderly increases, while the steady decline in fertility rates ensure that it falls on fewer shoulders. This blunt truth should not detract from a recognition that it will also inevitably cause much personal psychological distress for the very many infertile couples unable to attain parenthood through normal means. The consequent domestic pressures from prospective adopters seeking access to a shrinking pool of available children, in tandem with economic recession and its effects on public service funding, are pushing some governments towards reviewing child care policy to permit and financially support the non-consensual adoption of children otherwise destined to age-out in the public care system, while also broadening the range of non-Hague signatory states with which they are prepared to sign bilateral ICA agreements.

23.5.3.2

Socio-economic Pressures Within Sending Countries

Intercounty adoption is, as Johnson rightly asserts, at least partly driven by the socioeconomic constraints that prevent domestic care provision35 : It is commonly understood that many, if not all, sending countries participate in international adoption because some combination of domestic, cultural, and economic factors make it difficult to find enough homes for homeless children inside their country of birth.

This is substantiated by the fact that historically most intercountry adoptions have originated in the poor countries of Asia and have tapered off or ceased as their circumstances improved. This has been the case in relation to South Korea, Romania, Guatemala, China, Kazakhstan and Russia—all former leaders in foreign adoption—and all of which have now banned or radically reduced their commitment to ICA. Most obviously this is illustrated by the experience of South Korea which contributed some 170,000 children between 1953 and 2009 but where the flow has been drastically reduced in recent years, as socio-economic circumstances improved and with it a capacity to provide domestic adoption and child care services, until virtually ceasing in 2010. The role of such countries as ICA providers then passes to others that currently lack the resources to be child care self-sufficient. In fact Africa is now filling that gap having increased its contribution by almost 300% in just eight years, when globally rates are at a 15 year low. Whereas in 2003 Africa accounted for only 5% of all intercountry adoptions, by 2012 this had risen to 25%36 ; much of the rise being attributable to Ethiopia, where the numbers rose from 620 in 2000 to

35 See, Johnson, K., Law & Society Review, Vol. 36, No. 2, 2002, pp. 379–396 at p. 380. See, further,

at: https://content.csbs.utah.edu/~fan/fcs5400-6400/studentpresentation2006fall/JohnsonKay.pdf. further, at: https://africa.cgtn.com/2019/09/22/talk-africa-foreign-adoption-of-african-chi ldren/.

36 See,

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23 Politics and a Contemporary Social Role for Adoption

1527 in 2004 and 4565 in 2009. As Selman points out, Ethiopia then accounted for over 70% of children sent from Africa.37 More broadly, there has been a serious contraction in the volume of ICAs: in 2005, there were almost 46,000 but by 2015 the numbers had dropped 72%, to 12,000. Across the world—from South America, to the Philippines, to Russia and eastern Europe and now in Africa—the same theme is apparent: the countries lacking the resources to be self-sufficient in child care become ICA donor nations; they do so until their domestic capacity improves; other poor countries then take their place.38

23.5.3.3

Withdrawal of Sending Countries

That the incentive for donor nations is generated by the political need to relieve the drain on their overstretched resources is demonstrated by the alacrity with which sending countries withdraw from that role as soon as their domestic circumstances permit. But poverty is not always the primary or only driving force: political ideology, religion and other factors can also play a part. For example, in ‘closed’ totalitarian states, such as North Korea and formerly those of Eastern Europe, governments tend to prohibit intercountry adoption as they would any practice that might permit external involvement, indicate an inability to cope with domestic social problems and present a political risk of ‘loss of face’. While in Japan and in Islamic nations much the same considerations, though not ideological, result in tens of thousands of children remaining in orphanages or children’s homes rather than be freed for ICA. Argentina, in the light of its recent history of adoption abuse under the reign of the generals, has prohibited the sending of children for intercountry adoption. Similarly, a change in the political regime of Romania, in the aftermath of Ceau¸sescu, allowed that country to become a leading contributor in the early 1990s but in response to ongoing allegations of malpractice that threatened to compromise accession to EU treaties it was deemed politically expedient to cease completely in 2005. The cumulative effect of such factors, together with the restraining influence of the Hague Convention, has been a sudden and significant decline in the ranks of donor nations. In 2010, Bartholet summarised the situation as follows39 : Post-Ceau¸sescu, international adoption placed thousands of Romanian children per year for several years. But Romania recently legislated to end such adoption, in response to demands that they do so in order to join the European Union.40 Russia, with huge numbers of institutionalized children, instituted a requirement that children be held six months prior to placement abroad, despite the limited number of in-country homes. China instituted new 37 See,

Selman, P., ‘Global Trends in Intercountry Adoption: 2001–2010’, Adoption Advocate No. 44, the National Council for Adoption, February 2012. 38 See, for example, Mason, J.M., ‘Inter-Country Adoption: A Global Problem or a Global Solution’, Journal of International Affairs, Vol. 55, Issue 1, pp. 141–166, 2001. 39 See, Bartholet, E., ‘International Adoption: the Human Rights Position’, at: https://dash.harvard. edu/bitstream/handle/1/3228398/IA-GlPol72409.pdf?sequence=2. 40 Citing Bartholet, E., International Adoption: Thoughts on the Human Rights Issues’, Buffalo Human Rights Law Review, 13, 151–203, at pp. 161–3.

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rules limiting the eligibility of international adoptive parents, claiming there was no longer much need for foreign adoptive homes, despite the millions of abandoned baby girls.41 Several countries that used to release significant numbers of children as early infants, have shut down or severely restricted international adoption. Guatemala was one of the major sending countries … Guatemala is now closed, with any future international adoption system likely to be very limited42 ... India, which has significantly restricted international adoption, including by requiring 50% of all adoptions to be in-country.43

A view subsequently endorsed by others.44

23.5.4 Intercountry Adoption and Surrogacy Intercountry adoption, which until recently had seemed to be an unstoppable and ever growing phenomenon for all modern western nations, both common law and civil law, has abruptly slowed down. There is good reason to believe that, at least in part, this is a consequence and a measure of Hague Convention effectiveness. All jurisdictions studied had subscribed to the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 1993. Unlike England & Wales, most of the common law countries have developed a high rate of dependency on this form of adoption, as indeed have Sweden and France. By way of contrast, in Japan and in an Islamic context, there is very little involvement in intercountry adoption and official government policy would be to discourage it.

23.5.4.1

The Effect of the Hague Convention

The above well-recorded reversal of established ICA trends calls for analysis and this has been provided by such scholars as Hollinger,45 Bartholet, 46 Selman, 47 Smolin,48 Gibbons and Rotabi.49 The consensus would seem to be that a consequence 41 Ibid.,

at pp. 160–61. at pp. 156–157, 190–191. 43 See, Bartholet, E., ‘International Adoption: the Human Rights Position’, op cit., at p. 26 citing Dohle, A., ‘Inside Story of an Adoption Scandal, Cumberland Law Review, 39(1), 2008, pp. 131–186 at p. 131. 44 See, for example, Selman, P., ‘The Global Decline of Intercountry Adoption; What lies ahead?’, Social Policy and Society, Vol. 11, Issue 3, 2012, pp. 381–397. 45 See, Hollinger, J.H., Adoption Law and Practice, LexisNexis, 2010. 46 See, Bartholet, E., ‘International Adoption: the Human Rights Position’, op cit. 47 See, Selman, P., ‘The Global Decline of Intercountry Adoption; What lies ahead?’, op cit. 48 See, Smolin, D.M., ‘Child Laundering and the Hague Convention on Intercountry Adoption: The Future and Past of Intercountry Adoption’, University of Louisville Law Review 48.3 (2010), pp. 441–498. 49 Gibbons, J.L. and Rotabi, K.S. (eds), Intercountry Adoption: Policies, Practices, and Outcomes, Ashgate, 2012. 42 Ibid.,

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of donor countries ratifying Hague is a reduction in the numbers of children they subsequently make available for ICA. China, for example, ratified in 2006 and the number of Chinese children assigned for intercountry adoption duly fell from 14,000 in 2005 to roughly 6000 in 2009. Arguably, however, it was the U.S. ratification of Hague in 2007 (with effect from April 1, 2008) that triggered international change. The fact that significant sending countries had not ratified Hague (e.g. Russia, South Korea, Ukraine and Ethiopia) while the practices of others (e.g. Albania, Cambodia, Liberia, Peru, Vietnam and Guatemala) were found to be non-compliant with the Hague standards now required of the U.S., led the latter and then others to suspend arrangements with those countries. The indications are that the slowdown in Hague compliant adoptions is resulting in fewer children being available for ICA and longer waiting lists of approved prospective adopters. This in turn is leading to a diversion towards non-Hague sources which together with increased recourse to international commercial surrogacy is generating doubtful practices some of which may well amount to ‘trafficking’ or ‘child-laundering’ as it is referred to by Smolin.50

23.5.4.2

Non-Hague Compliant ICA

In reality, the resolve to ensure that the welfare interests of children should be afforded no less protection in intercountry adoption than in domestic adoption processes never extended to the point of prohibiting bilateral agreements between signatory states and non-Convention compliant countries (let alone such arrangements between sending and receiving countries that continue entirely outside the Convention), which undermines the Convention and seriously questions the commitment of some nations to it. As long-standing sources are shut down, or are required to reduce their ICA levels to comply with Hague, or opt to drastically reduce the speed and volume of their output as their socio-economic standards improve, so the receiving nations are prompted to resort to non-Hague substitutes. There are serious doubts regarding the bona fides of some countries that have acquired the status of Hague signatory states. Although, for example, Albania, Vietnam, Peru and others have done so and are thus ostensibly signed up to operate in accordance with Hague standards it is questionable whether they are in a position to fully comply with Convention requirements. It is not obvious that the resources necessary to put in place and maintain a professional regulatory regime for both domestic child care and ICA will be available, or can be made available with international assistance, in the short term. Nor is it apparent how the emerging African donor countries can attain Hague compliant standards. While it can be predicted that countries such as Ethiopia and the Congo will of necessity continue to grow as ICA donors it is 50 Ibid.,

at p. 385 where he explains that: ‘typically child laundering consists of obtaining children illicitly through force, funds or fraud, providing false paperwork that indicates that the children are abandoned or relinquished “orphans”, and then processing these “orphans” through the official intercountry adoption system’.

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equally certain that precisely because of that necessity they will be unable for many years to commit the resources necessary to become Hague compliant. Currently, there is good reason to suspect that this growth is fuelled, in part, by practices that are not just non-Hague compliant but are wholly illegal. There are reports of criminal syndicates in Nigeria ‘operating unregistered orphanages, illegal maternity homes, clinics, motherless babies homes, and fake child care homes with the purpose of manipulating the adoption process to make monetary gains’ sometimes resorting to kidnapping when these facilities fail to produce enough babies to meet the rising demand’.51 It is also certain that the developed nations will be unable to effect much change, no matter what resources they are prepared to commit to improving standards of practice, in such chaotic and politically volatile countries. Additionally, as intercountry adoption becomes a much slower, more complicated and uncertain process, which tends to deliver older children or those with physical or mental health issues, many would-be parents are instead considering commercial surrogacy. The above policy deficits in relation to Hague, together with the continuing failure to effectively regulate international commercial surrogacy, are allowing practices that give rise to concern for the basic human rights of the birth parents and children involved.

23.5.4.3

Hague and the Role of International Adoption Agencies

There is an argument that the transactional role of such agencies is not unlike that of any other form of brokering and leads to the commodification of children as it defines them as the end product of a contractual agreement (see, Sect. 5.5.1.1). Graff, a proponent of that view, states ‘adoption agencies work not to find homes for needy children but to find children for Western homes … remove cash from the adoption chain and, outside of China, the number of healthy babies needing Western homes all but disappears’52 Smolin adds that they have ‘created virtual bidding wars for adoptable children in nation after nation, while linking to intermediaries and partners who practice in a context of widespread falsification of documents, bribery, corruption and child laundering’.53 An alternative view, as assertively advocated by Bartholet, claims that international adoption agencies perform a vital role by ensuring the early rescue of young infants from circumstances in which they can only suffer further damage and placing them with approved loving couples highly motivated to promote their

51 Ojedokun, U.A., & Atoi, E.N., ‘Baby Factory Syndicates: An Emerging Child Adoption Racket in

Nigeria’, African Journal for the Psychological Study of Social Issues, 19(1), (2016), at pp. 47–59. 52 See, Graff, E., ‘The lie we love’, Foreign Policy, November 1, 2008, at: https://www.foreignpo licy.com/story/cms.php?story_id=4508&print=1. 53 See, Smolin, D., in Gibbons, J.L. and Rotabi, K.S. (eds), Intercountry Adoption: Policies, Practices, and Outcomes, Ashgate, 2012, at p. 396.

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lifelong welfare. She deplores the tarnishing of such agencies by allegations of their complicity with baby selling practices54 : For example, alleged baby selling was used to shut down Guatemala’s international adoption programme for two years, and to help justify the strict new law that Guatemala boasts will limit such adoption to some two hundred children annually, as compared to the several thousand previously placed annually. Alleged abuses have helped justify bans on private intermediaries throughout Central and South America. Since these intermediaries served as the lifeblood of such adoption, these bans have effectively shut it down. This response makes no sense as a way of addressing adoption law violations.

While there are undoubtedly adoption agencies with practices that are representative of both views, it is probable that as the ICA sources shrink, the pressure grows from lengthening queues of prospective adopters, and many adoption agencies are forced into closure and/or bankruptcy, the competition between those that are struggling to survive is becoming such that some are increasingly tempted to engage in non-Hague compliant practices. Certainly it would seem that this was the case in Chad and in the aftermath of the Haiti disaster.

23.5.5 International Commercial Surrogacy and Trafficking A rapidly developing extension to the phenomenon of ‘medical tourism’ is the current practice of international commercial surrogacy. This brings with it a flux of legal and ethical issues, particularly as many developing nations do not have a regulatory framework for policing it. The fact that obtaining a healthy baby by surrogacy, within a year, costs approximately $12,000 in India,55 and can come with a genetic link, compared to $20,000–45,000 for an ICA infant or child with probable health or social care issues, following a wait of up to 4 years, will undoubtedly make the former an attractive proposition for many prospective parents.

23.5.5.1

International Commercial Surrogacy

There is much scope for exploitive practices when so many surrogate mothers are in impoverished circumstances.56 In India, for example, where commercial surrogacy is legal, it is estimated that there are now more than 600 surrogacy clinics assisting

54 See,

Bartholet, E., Ibid., pp. 377–378. Haworth, A., ‘Surrogate Mothers: Womb for Rent’, Seattle P.I., July 1st, 2009, at: https:// www.seattlepi.com/lifestyle/article/Surrogate-Mothers-Womb-for-rent-1303111.php. 56 See, for example, Hermann, K.J. and Kasper, B., ‘International Adoption: The Exploitation of Women and Children’, Affilia: Journal of Women and Social Work, Vol. 7, 1992, pp. 45–58. 55 See,

23.5 Intercountry Adoption

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some 60,000 commissioning parents annually57 and in 2013 the government facilitated service provision by introducing a new surrogacy visa, exclusively available to heterosexual couples married for at least two years. Such is the scale of international commercial surrogacy and the imbalance of power between the parties involved that it has been termed “reproductive trafficking” because58 : It creates a national and international trafficking in women in which women become moveable property, objects of reproductive exchange, and brokered by go-betweens mainly serving the buyer.

The links between intercountry adoption and international commercial surrogacy are difficult to ignore.59 Bartholet argues that60 : Commercial surrogacy is the institution in which true baby buying takes place systematically ... [it is] flourishing in the United States and many other countries, and international commercial surrogacy is spreading rapidly, as those who want to become parents turn to poor countries for surrogates who will charge low prices. Some of the countries which have shut down or significantly restricted international adoption are now engaged in the rapidly expanding international surrogacy businesss.

It is probable that as ICA continues to shrink and the scale of commercial surrogacy continues its present rapid expansion, the latter will require a collective international political initiative, such as that which gave rise to the Hague Convention.

23.5.5.2

Surrogacy and Genetic Editing

In 2018 a Chinese scientist, He Jiankul, made a breakthrough of enormous importance for procreation in general but in so doing may also have introduced a game changer for the future of adoption. By becoming the first person to deliberately engineer genetic change in an embryo—to strengthen HIV resistance in babies—he inaugerated the new era of genetic editing.61 CRISPR-Cas9 bio-technology enables targeting intervention to interupt a genetic sequence and correct or eliminate the component responsible for inter-generational disease and may also allow insertions with potential to enhance desired genetic attributes. While the bio-tech opportunities are accompanied by a host of ethical issues, and an internationally agreed 57 See, Ryznar, M., ‘International Commercial Surrogacy and Its Parties’, 43 John Marshall Law Review, 2010. 58 See, Raymond, J.G., ‘Reproduction, Population, Technology and Rights, ISIS International, at: https://www.isiswomen.org/index.php?option=com_content&view=article&id=534:rep roduction-population-technology-and-rights&catid=134. 59 See, Rotabi, K.S. and Bromfield, N.S., ‘The Decline in Intercountry Adoption and the New Practice of Global Surrogacy: Global Exploitation and Human Rights Concerns’, Affilia: Journal of Women and Social Work, Vol. 27, Issue 2, 2012, pp. 129–141. 60 See, Bartholet, E., ‘International Adoption: the Human Rights Position’, at: https://dash.harvard. edu/bitstream/handle/1/3228398/IA-GlPol72409.pdf?sequence=2 at p. 26. 61 See, further, at: https://www.nature.com/articles/d41586-019-00673-1.

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regulatory regime is urgently needed, it is not improbable that the prospect of a customised genetic link will tempt those who can afford it to consider appropriate surrogacy arrangements sealed by adoption as the optimal route for building a family. Although clearly only ever likely to be availed of by a minority of future adopters, it is nonetheless a challenging development for the politics of adoption and one which seems light years away from its idealised origins in the altruism and selflessness of the “gift relationship” (see, further, Sect. 1.2.2).

23.5.5.3

Trafficking

The ‘trafficking’ of children for any purpose is prohibited by various international instruments including the United Nations Convention on the Rights of the Child 1989, the ILO Worst Forms of Child Labour Convention 1999, and the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children 2000. It is also explicitly forbidden by the Hague Convention which requires signatory states to affirm that they are: ‘Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children’.62 However, the role played by adoption agencies and other intermediaries in the immediate aftermath of after the 2004 Thailand tsunami disaster, the 2007 war in Chad and the 2010 Haitian earthquake at times seemed like trafficking and did much to bring ICA into disrepute. This was recognized by the United Nations Human Rights Council which issued its childcare guidelines, specifically to address the post-disaster role of ICA, advising against the removal of children in such circumstances.63 On a global basis, the number of persons annually receiving national official approval as prospective adopters is steadily climbing, while the number of children nationally available is in steep decline, a dynamic which inevitably leads to the cultivation of new international sources to offset the shortfall. As in any such circumstances where demand greatly outstrips supply, the adoption process is increasingly at risk of being tainted by corrupt practices.64 There is evidence from scholars such as Bromfield and Rotabi that corruption is indeed blurring the distinction between 62 See, Preamble to the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, at: https://www.hcch.net/index_en.php?act=conventions.text& cid=69. 63 See, United Nations Human Rights Council, ‘Guidelines for the Alternative Care of Children’, Eleventh Session Resolution 11/7, 2009. 64 See, for example: Freundlich, M., Adoption and Ethics: The Market Forces in Adoption, CWLA Press (Child Welfare League of America), 2000; Graff, N.B., ‘Intercountry Adoption and the Convention on the Rights of the Child: Can the Free Market in Children Be Controlled?’, Syracuse J. Int’l L. & Com. 405, 2000; and Smolin, D., ‘Child laundering: How the intercountry adoption system legitimizes and incentivizes the practices of buying, trafficking, kidnapping, and stealing children’, Wayne Law Review, Vol. 52, 2005, pp. 115–200 and ‘Child Laundering as exploitation: Applying anti-trafficking norms to intercountry adoption under the coming Hague regime’, Vermont Law Review, Vol. 32, 2007, pp. 1–55.

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ICA and trafficking—not just in the context of disaster but as part and parcel of ICA activities in countries like Guatemala and even in Hague signatory states such as Vietnam and China (see, further, Sect. 19.2.2.1)—consequently there is every reason to be concerned.65

23.6 Adoption: An Increasingly Uncertain Social Construct Much has happened to adoption in a short period of time. It has had to accommodate many changes including a sharp decline in its traditional domestic use, a similar decline mixed with confused trends in ICA, the adjustments required by equality and human rights legislation and the impact of child care permanency planning, gay marriage and commercial surrogacy. These have combined to create a sense of uncertainty regarding its core purpose and governing principles.

23.6.1 Adoption and Cultural Context All the above points to the fact that adoption is essentially a social construct and as such is a product of the culture in which it functions.

23.6.1.1

Cultural Context

When the context is one of a religiously dominated culture, as in Ireland where until recently the Roman Catholic Church governed prevailing social values or in Pakistan where Islam continues to do so, then the social role and legal functions of adoption are very much as prescribed by that religion. When the culture is ‘closed’, but not by religion, as in the communities of Indigenous people in Australia, New Zealand, the U.S. and Canada (see, further, Chap. 21, then adoption simply imitates the open, sharing, communal nature of such communities. The civil law nations such as Sweden, France and Germany66 share much the same approach to adoption, which is quite distinct from that of modern common law and other nations, but the latter are differentiated in some ways that seem to reflect their respective cultural characteristics. Adoption in the U.S. reflects the ‘open market’ ethos of that society where commerce is always present, religious evangelism casts an influence and regulatory

65 See,

Bromfield, N.F. and Rotabi, K.S., ‘Human Trafficking and the Haitian Child Abduction Attempt: Policy Analysis and Implications for Social Workers and NASW’, Journal of Social Work Values and Ethics, Vol. 9, Issue 1, 2012, pp. 13–35. 66 Adoption in these countries is not specifically endorsed by law, policy or practice as an option for addressing parental failure.

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intervention is not encouraged. In the centralised social economy of China, it functions largely as a public policy strand of the government’s strategy for population management. Japan, an example of a modern developed nation but one with a particularly closed cultural heritage, is arguably a politically compromised entity and this is evident in the intriguing amalgam of social roles and legal functions that now constitutes adoption in that country. As in South Korea, and to a lesser extent also in Romania, adoption in Japan is much influenced by Confucian values and constricted by patrilineal concerns for the integrity of bloodlines.

23.6.1.2

Identity

Issues of identity are central to adoption. As a social construct and in terms of its effect on the parties involved—particularly adoptees—but also in relation to the birth parents and adopters, it has long been riven with uncertainty regarding “identity”. The process and the end result—purporting to change unique inherent characteristics, erase origins, and transplant to a new context with reset co-ordinates—while certainly affecting the parties and their families, has in recent years become a good deal less absolute and immanent in the western developed nations. It was always more permeable in an indigenous context and where civil law continued the tradition of ‘simple’ adoptions but the impact of human rights would seem to have forced the common law to face up to the basic identity issues and their ramifications as imposed by its legal interpretation of ‘adoption’ (see, also, Sect. 5.5.2.4). The right to an identity is well established by Articles 19 and 10 of the UDHR and 7 and 8 of the UN CRC.67 It has since been amplified by a considerable body of academic work—largely drawn from psychology,68 philosophy,69 anthropology70 and sociology71 —which has documented the struggles of a range of ethnic, racial, religious and other types of groups and communities to acquire recognition for their separate and distinct identities.72 It has been examined by the ECtHR in cases such as Godelli v. Italy.73 All this has led to domestic and international legislation asserting the rights of all such entities to independent status, requiring that they be treated equally and be protected from discrimination. 67 See,

also, the European Convention of Human Rights, Articles 8, 9 and 10.

68 See, Erikson, E., Identity and the Life Cycle: Selected Papers, New York, International Universities

Press, 1959 and Identity: Youth and Crisis, London, Faber, 1968. 69 See, Heidegger, M., Being and Time, (trans. by Macquarrie J. and Robinson, E.), London, SCM Press, 1962. 70 See, Brubaker, R. and Cooper, F. ‘Beyond ‘Identity’ in Theory and Society, Vol. 29, pp. 1–47, (2000) and Calhoun, C., (ed.), Social Theory and Identity Politics, Oxford, Blackwell, 1994. 71 See, Weinreich, P. and Saunderson, W. (eds.), Analysing Identity: Cross-Cultural, Societal and Clinical Contexts, London, Routledge, 2003. 72 See, for example, Barzilai, G., Communities and Law: Politics and Cultures of Legal Identities, University of Michigan Press, 2003 and Campbell, D., Writing Security. United States Foreign Policy and the Politics of Identity, University of Minnesota Press, 1998. 73 Application No. 33783/09, (2013).

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In recent years this approach has been brought to bear on adoption, or more specifically on the need of adoptees to clarify their sense of “belonging”. To be an adoptee is to run the risk of being defined by the fact of your adoption: having your identity determined by others; the psychological dissonance between the push to “fit in” and the pull towards origins information often obstructing the personal growth and development necessary for an independent authentic identity. These difficulties are greatly compounded by the extra layer of cultural confusion that burdens the subjects of ICA. In recognition of an adoptee’s right to reach past their prescribed identity and locate the data required to inform a factual grasp of their history, adoption law and practice has decisively moved away from reinforcing the policy of a “clean slate” for all parties and towards facilitating information disclosure, at least to the extent of permitting adoptees to access basic material relating to their origins. Some ICA sending countries have added to this by providing programmes designed to stimulate or promote adoptees’ affinity with their cultural roots.

23.6.2 The Changing Social Role of Adoption As noted earlier (see Sect. 2.2) adoption as originally defined, as a social construct and as a legal mechanism, is dying out.

23.6.2.1

An Evolving Process

In a common law context, adoption has traditionally meant the absolute, permanent and consensual legal transfer of a child from birth family and kinship network to third party adopters so that the child assumed an identity and role with the latter, their extended family and society in general, equivalent to that of a child born to the adopters and of their marriage. This has always been its primary social function: in the past to ensure continuance of the adopters family line; more recently to satisfy nuclear family parenting needs; and in both to provide for the welfare of the children involved. However, it is now clear that not only in a common law context but also in civil law countries and in Japan and Islamic cultures, this form of domestic adoption has been steadily decreasing for decades as the supply of voluntarily relinquished healthy children in the developed world dries up. A secondary strand of domestic adoption is ‘family adoption’. Serving the expedient social function of legally securing the boundaries of newly configured family units and, most recently, of same gender couples, these have been growing as a proportion of all annual adoption orders.74 If other countries follow the lead given by England & Wales and Australia and, crucially, if the judiciary give effect to the legislative intent and divert step-applicants to other private law orders, this strand will 74 See, Menozzi, C. and Mirkin, B., ‘Child Adoption: A Path to Parenthood?’, United Nations Population Division, 2007, at p. 6.

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also rapidly decline and in so doing greatly shrink the extent to which adoption can still be said to ‘belong to’ private family law. However, given that currently in the U.S. more than half of all annual adoptions are by step-parents,75 it is unlikely that this jurisdiction is poised to take such a step. Kinship adoptions, though greatly outnumbered by step-applicants, are increasing in some countries but again the widespread political decision to make guardianship available may well put a brake on further growth. The final strand in domestic adoption is comprised of a throughput of children from the public care system. In all of the jurisdictions studied, the adoption of such children by third parties in circumstances where parental consent was available or the children are orphans was well established and likely to continue. A small minority of those jurisdictions also provided for kinship or third party adoption in circumstances where parental rights had been judicially removed; invariably relatively few children were involved. The social function of this strand is most clearly focused on finding homes for children in need and is the one which, in the countries concerned, is progressively giving the adoption process a more pronounced public service character. Intercountry adoption is usurping the social role initially filled by the traditional private family law model of domestic third party adoption. It is mainly used for reasons of meeting the psycho-social parenting needs of infertile couples, is most likely to involve healthy babies—though the welfare of children in need is also a significant consideration. Driven by an ever-rising demand for adoptable children, despite the current setback, this social function is likely to revive and become more prominent as war, social destabilisation and climate change disrupt life in the southern hemisphere while in the north fertility rates fall in ageing populations, coupled with such other factors such as delayed marriage and deferred childbirth due to pressures of employment, better childcare and other support services for single parents and the wider acceptance of new family forms.

23.6.3 Broadening the Right of Access to Adoption As noted in the previous chapter, the right of access to an adoption process is a critical political issue (see, Sect. 22.2.3.1). Given the above changes, if adoption is to have a robust future then the present rights of access will need to be reconsidered. This will involve rethinking the roles of adoptee, birth parent/s, adopters and the state.

23.6.3.1

Adoptees

For potential adoptees the critical political question is—should the welfare principle determine access to, as well as exit from, the adoption process? If answered in 75 See, Hollinger, J.H., Adoption Law and Practice vol. 1, Matthew Bender Co., Lexis-Nexis, New York, 1988–2005, (2005 update).

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the affirmative, then: most forms of domestic adoption would automatically cease except in relation to children with health or social care needs that exceed parental care capacity and those in the public care system; intercountry adoption would flourish; and there would be a sharp focus on admitting the truly destitute such as the double orphans, without other carers, in sub-Saharan Africa. The question—Why are more disabled children not adopted?—would pose a real challenge to the residential care provided by the public child care systems of many countries where considerable numbers of such children live out their childhoods despite, in many cases, parental consent for adoption being available. If need, objectively verifiable, is to be a necessary pre-condition for admission then certain legal status considerations would become relatively less important. Currently, need is not always essential, and may not even be relevant, as in many step-adoptions. For example, the differing locus standi of children as ‘legitimate’ or ‘illegitimate’, or lineage distinctions, while reflecting the values of very different cultures, also offer an example of inequity in the eligibility criteria for accessing the adoption process in countries such as Japan and South Korea, formerly in Ireland, and always in an Islamic context. Further, if the adoptee’s needs are genuinely of central importance then this should be affirmed by requiring the formal consent of any adoptee aged 12 or more, unless good reason can be shown for dispensing with the need for it. In circumstances where welfare is the primary entry criterion, perhaps particularly in a child care or an ICA context, the question arises—does this constitute a presumptive right to a family? Arguably, it does, and the younger or more vulnerable the prospective adoptee the stronger the weighting of such a legal presumption. An ancillary question arises—Should adoptee eligibility be restricted by considerations such as age, health, marital status of parent/s, lack of a birth parent’s consent etc.? Might it not be sufficient to establish that the individual—child or adult—has specific needs, not suitably addressed by any other form of order, and his/her consent is available and/or that of any other party with relevant rights, unless such consent can be dispensed with?

23.6.3.2

Birth Parents

In respect of birth parents there are political issues regarding what should constitute ‘abandonment’ and whether some degree of financial recompense might be permissible? Many countries now make available ‘baby hatches’ or similar facilities whereby a birth parent is granted legal immunity to safely, anonymously and permanently relinquish their baby, without any necessity to complete formal consent procedures. It would seem a small step further to extend that principle—if not that exact practice— to parents, married or not, in relation to children of any age. This might go some way towards reducing the problems, largely arising in an ICA context, associated with ‘street children’ (e.g. in Romania) with no identifiable carers and those currently received in orphanages on a short-term basis but where the parent has an intention to permanently abandon. A child abandoned to care in an orphanage is still abandoned,

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even if the parents whereabouts are known. An opportunity to provide a formal consent should always be available, and should be sought, but failure to provide it should not necessarily prevent adoption. The prohibition against birth parents receiving any form of financial ‘reward’ in respect of a child relinquished for adoption is difficult to square with: the government grants available to adopters who take a child from the public care system; the financial donations required by orphanages in China; the costs of professional involvement and the fees siphoned off by various intermediaries; and with the financial grants automatically awarded to the (by definition) financially secure ICA adopters in countries such as Sweden. Where the money falls is important and currently in law the person who provides the child—who is also the one whose need is greatest—is the only one who is denied any form of financial recompense. As commercial surrogacy becomes more widespread the principle behind the prohibition may come to seem redundant if not counterproductive. Improving the contractual position of birth parents, short of providing a financial incentive, may also serve to ease a child’s safe transition from parental care to adoption. Other matters may also benefit from being reconsidered, such as: retaining a right to permanent anonymity; exercising a right in general terms or quite specifically to choose the adopters; a right to post-adoption contact and/or to determine religious upbringing; and the right of a non-involved birth parent to contest an adoption. The convenient but clearly wrong practice of designating a child an “orphan” when one or both birth parents are known to be alive and/or their wherabouts could be ascertained should be prohibited. Then there is the anomalous issue—now being statutorily erased in some jurisdictions—of the birth parent’s legal need to adopt, jointly with a spouse, their own child.

23.6.3.3

Adopters

For potential adopters, the issues relating to their applicant status have caused considerable political controversy. While the ECtHR has stated and reiterated that there can be no right to adopt, nevertheless the prevailing inequity between classes of applicant places some in a stronger position than others to pursue that objective. Most recently this issue has arisen in relation to the eligibility of same sex couples to adopt but before that a similar controversy surrounded the eligibility of unmarried couples, single applicants etc. Criteria applied by professionals in their assessment of third party adopter eligibility (e.g. proof of unsuccessful infertility treatment) and suitability (e.g. lifestyle, racial and/or religious matching with adoptee, etc.) have often triggered political controversy. The comparatively lower threshold applied to stepparent adopters, who are generally not subject to equivalent professional assessment, has also proved contentious. There may be an argument for formally recognising the differences and instituting a two-tier approach to adoption: full and simple; allowing relatively unconstrained adopter access to the ‘simple’ form in cases of step-parent and kinship adoption, and adoption of adults by long-term carers or relatives; and reserving ‘full’ adoption, with rigorous assessments, for those child care adoptions

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where there is a low level of ongoing voluntary contact with birth family members and traditional third party situations—domestic and intercountry—where the applicant is a ‘stranger’ to the child adoptee. Then there are the many issues that arise in relation to adopter access to intercountry adoption. Questions, for example, have to be asked in relation to money as a factor in determining access, racial congruity with prospective adoptee and the adopters potential capacity for promoting adoptee’s cultural identity. Motivation may well also require critical analysis.

23.6.3.4

The State

The big political questions, however, are reserved for the role of the state. The extent to which the state simply sets up the regulatory framework to ensure propriety for the process and to safeguard the rights of the parties, or involves itself in the process itself, is politically very revealing. In all countries studied, governments are presiding over a rapidly shrinking adoption process, in a demographic context which guarantees that demand will continue to outstrip supply, in an economic climate that requires the privatization of more public service provision and where human rights awareness (except in an Islamic context) dictates that values of equality, equity and non-discrimination must be demonstrated in the use of such services as remain in the public sector. In these circumstances it is unsurprising to find that the state is generally altering its role in relation to adoption. The political dimension currently arises most forcefully where the state has decided to give preference to resourcing child protection rather than preserving family unity and then introduces provisions for the non-consensual adoption of the rapidly increasing numbers of children in its over-burdened public child care system. The state, in effect, then adapts the adoption process to suit its child care policy and becomes a party in its own cause. A political dimension is also present in the disproportionately low number of domestic third party adoptions that involve children with a disability, in the balance struck between domestic and intercountry third party adoptions and in the grounds for first party adoptions; each could be adjusted by a change in policy. The lengths the state will go to facilitate the retention of an adopted child’s sense of cultural identity is an important political matter as is the availability of post-adoption allowances, tax benefits and specialist forms of post-adoption support for ICA. The political decisions taken in respect of matters that condition the use of adoption also play a crucial role: whether to support services that reduce the supply of unplanned babies (contraceptives, thresholds for abortion etc.) or reduce the demand for them (assisted reproduction treatments, surrogacy etc.) are obviously important. Again, the degree to which the state makes available targeted public services and alternative family law orders affects the need to have recourse to domestic adoption, while investment in the child care infrastructure of ‘sending’ countries similarly affects recourse to intercountry adoption. Clearly, also, the fact that many ‘receiving’ countries are simultaneously signatories to both the Hague Convention and to bilateral agreements with ‘sending’ countries reveals an

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23 Politics and a Contemporary Social Role for Adoption

ambivalence in state political commitment to the Convention. These are among the many factors urgently requiring political orchestration if the social role of adoption is to be re-aligned to genuinely address the welfare needs of children, domestically and internationally, in the twenty-first century.

23.6.4 Broadening the Outcomes of Adoption There are considerable jurisdictional differences in the outcomes of an adoption process. Most obviously this is evident in the legal distinction between ‘full’ and ‘simple’ adoption, whether the adoptee is a child or an adult, the availability of alternative orders together with the presumption that they may be more appropriate, and the availability of adoption orders compromised by accompanying contact orders. It is apparent also in the jurisdictional variation in birth parent rights to continued anonymity and adopters entitlement to post-adoption state support. However, for those jurisdictions where the principle that the welfare interests of the child is of paramount importance has displaced the importance previously attached to parental rights, and is now recognised as the governing determinant of all decisions relating to the upbringing of a child, two consequences would seem to follow. Firstly, that principle, by virtue of its elevated legal authority relative to all other considerations has, arguably, attained de facto legal standing as a ‘right’: vesting in a mature child the capacity to give or refuse consent to their adoption; and, in the light of evidence relating to the importance of ‘attachment’, affirms their entitlement to a family, by adoption if necessary; while also establishing their entitlement to such independent legal representation and advocacy services as may be necessary to give effect to that right. Secondly, all the above mentioned social roles of adoption should then fall in behind that fundamental right of the child. This would eliminate social expediency as a sufficient reason for first party adoptions, increase third party adoptions in a non-consensual child care context, increase ICA but confine it to Hague regulated arrangements, and would raise questions in relation to any practice that resulted in children being moved from safe attachments in long-term foster care or good quality residential care to third party adopters as a matter of policy. It would also, of course, necessitate an adoption being compromised in favour of birth family rights to the extent necessary to meet the particular needs of each adoptee, require the provision of the support services needed to avert placement disruption, and ensure adoptee access to the information essential for their sense of personal identity.

23.6.5 Broadening the Definition of Adoption Adoption has been statutorily defined, and its social role predicated, on the basis of its application to the nuclear family model. Over time this model has changed

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considerably and is now doing so with increasing rapidity. Adoption must adjust to meet the challenge of new family models and new ways of parenting.

23.6.5.1

The Twenty-First Century Family

The heterosexual, monogamous, married for life couple, exclusively committed to the upbringing of their 2.4 children, was the family unit that adoption was legally designed to replicate. It was the model that would: ‘legitimate’ children born into nonconforming relationships; confer on the child other social status attributes such as name, inheritance rights and rights of residence/domicile/nationality; vest in childless couples the wherewithall to fit in with prevailing social norms; and legally secure the adopters family boundaries from birth parent interference (see, further, Sect. 3.12.1). While it is still, if sometimes only just, the prevailing norm in the countries studied, this model is now challenged both by the range of other socially accepted family units and by the more fluid nature and permeable boundaries of families in the twenty-first century. The modern ‘family’ is no longer the settled cohesive entity that traditionally formed the centerpiece of family law. Neither necessarily married nor heterosexual, and less likely to be monogamous than their predecessors, present day parents are also more socially and geographically mobile, without any deep cultural roots, often ready to move on as opportunities in employment or relationships appear. The ordained link between procreation and marriage has been broken both by a change in social mores which no longer regard non-marital sex, same sex couples or unmarried parents as reprehensible and by advances in science which have greatly improved contraception and introduced the wonders of surrogacy and genetic editing. Many families— perhaps most in some societies—now include a child or children who are not fully genetically related to both parents nor to others in their household. Serial parenting is quite common as parents—married or not—move in and out of relationships and family homes. In short, modern families are more prone to instability: boundaries are permeable, membership can fluctuate and households are often comprised of dyadic child/parent relationships (see, also, Sect. 3.12.4).

23.6.5.2

A ‘Parent’ and ‘Parenting’

The landscape of the family and of the family in society have undergone radical change in the course of little more than a couple of generations. Throughout the history of statutory adoption there was no uncertainty regarding who in law could be defined as ‘parents’ of a child, they were either: the biological parents; adoptive parents; step-parents; or de facto parents who cared for and raised that child, but were not his or her biological parents. Only very recently has it become a matter of debate as to who and what constitutes ‘a parent’ and ‘parenting’. While there may

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23 Politics and a Contemporary Social Role for Adoption

be some contention regarding the candidates for catalysts of this change, there can be little in relation to surrogacy as its primary representative and facilitator.76 There are two types of surrogacy: traditional and gestational. In the former, the surrogate mother is artificially inseminated with the sperm of the intended father or sperm donor and, as her own eggs are used, she will be the genetic mother of the resulting child and the intended father will have his name entered on the birth certificate. In the latter, the position is more complicated as the surrogate mother is not genetically related to the child. Eggs are extracted from the intended mother or egg donor and mixed with sperm from the intended father or sperm donor in vitro. The embryos are then transferred into the surrogate’s uterus. Embryos which are not transferred may be frozen and used for transfer at a later time if the first transfer does not result in pregnancy. The commissioning parents, with the consent of the surrogate, will have to petition the court to have both of their names placed on the birth certificate or will need to adopt the child. It is this gestational form that gives rise to legal difficulties as technically there are up to five parents: the birth mother, the genetic mother, the genetic father, the intended mother and intended father; a multiplicity of parents that also multiplies the potential for litigation if agreements break down. In a recent Irish surrogacy case the judge, seemingly in an act of denial, relied on the traditional maxim mater semper certa est (the mother is always certain) to nominate the gestational mother as parent, but was promptly corrected by the Supreme Court which went to some lengths to explain why, in an era of ART, the maxim was no longer valid.77 The number of court cases in many different countries over the past decade or two, determined with little consistency of principle, testifies to the complexities involved in identifying the real parent of a child. Should this issue be resolved on the basis of nature or nurture: the male or female who is genetically related to the child; or the one or more who takes responsibility for their care and upbringing? Do the principles of contract law have a bearing: resolvable on the basis of the intentions of the parties as expressed in the terms of their contractual agreement? What interpretation and weighting should be given to the crucial family law principle of the child’s welfare? To what if any extent should a prospective parent be permitted to authorise genetic editing on the predictive basis that by so doing the long term welfare of an unborn child may be promoted? The lack of certainty on these matters is evidenced by the number of children, born by means of international commercial surrogacy, currently in a legal limbo with their parentage and consequently also their nationality or citizenship status left undecided. These are questions which go to the heart of adoption. It would seem that adoption law may well have to be broadened to accommodate the issues now arising from surrogacy and the modern interpretation of ‘family’ and ‘parent’. Clear principles, but not prescriptive policies, are now needed to bring the coherence necessary for adoption law and practice, nationally and internationally, in the twenty-first century. 76 See, for example, ‘Surrogate Parenting’, Internet Encyclopedia of Philosophy, at: https://www. iep.utm.edu/surr-par/. 77 See, M.R. & Anor v. An tArd Chlaraitheoir [2013] IEHC 91.

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23.7 Conclusion Adoption is clearly amenable to political adjustment. Whether it is so restricted that it primarily provides for the private needs of infertile married couples on a domestic and intercountry basis, or legal wrapping for reconfigured family units, or is broadened to address and accommodate contemporary public interest issues, whether mainly intended to provide children in need with families or adults in need with children, are among the matters that fall to be politically determined.

Conclusion

Identity issues—uncertainty of belonging, ambivalent attachments, compromised independence and a vague sense of direction etc.—associated, if unfairly, with the adopted, would now seem to have become characteristics of the adoption process itself. Currently, the social role and legal functions of adoption are undergoing change. As with previous editions of this book, predictions regarding the likely drivers and direction of such change remain dangerously speculative. It is possible, however, to identify some contemporary trends that in all probability will be among those exercising a significant future influence on the adoption process. Ties with Private Family Law Are Weakening The numbers and the nature of traditional third party adoptions are being transformed as supply sources—domestic and international—dry up and the process becomes less private. The greater availability of more effective contraception, increased access to abortion, together with more accepting social attitudes and improvements in state support for single mothers, all combine to reduce the numbers of children being domestically relinquished for adoption. Overseas, the closer scrutiny of children formerly legally designated ‘orphans’ or ‘abandoned’ will restrict the numbers of children made available for ICA by the governments of developing countries. At the same time, improved techniques for assisting conception and for improving survival rates for babies born prematurely, and/or with complex health problems, are shrinking the number of potential adopters. Shrinking also is the extent to which the law is prepared to protect the status of ‘adopter’: anonymity can no longer be guaranteed; the absolute vesting ofparental rights to the exclusion of future birth parent involvement is increasingly unlikely as some level of contact is generally seen as necessary for the welfare of the adoptee; and the respect, customarily granted to an adopters right to privacy for their family life, is now subject to health, welfare and other forms of service intervention.

© Springer Nature Switzerland AG 2021 K. O’Halloran, The Politics of Adoption, Ius Gentium: Comparative Perspectives on Law and Justice 86, https://doi.org/10.1007/978-3-030-65588-4

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1014

Conclusion

In some countries commercial surrogacy has become virtually industrialised and for many couples it is now displacing adoption as a value-for-money alternative to adoption. Step-parents, for decades the largest category of adoption applicants, are being steadily statutorily diverted to other options. Kinship adoption, outside the indigenous communities, attracts considerable equivocation and may not significantly increase its ‘market share’ of annual adoptions. In short, as volume diminishes, this most archetypal representative of the set of proceedings that for generations constituted private family law is now much less so than it was. Ties with the Public Child Protection System Are Under Review If, as seems likely, the U.S. retreats from its position as leading exponent of nonconsensual adoption from the public care and protection system, this will mark a fundamental policy change with far reaching implications that will also influence the U.K. (though unlikely, in the short term, to budge its existing commitment to non-consensual adoption) and other common law jurisdictions that followed the initial U.S. lead. Instead, as is currently the case in Sweden and France and to a lesser extent in Ireland, state intervention in circumstances of failed parenting may be re-purposed to invest the professional and other resources necessary to restore and sustain ‘good enough’ parenting rather than to end it. Where child protection is necessary—requiring the judicial suspension, attachment of conditions, or the termination ofparental rights—then it may be that a presumption favouring longterm foster care will become more the norm. This will allow guardianship, perhaps reinforced by other orders, to acquire wider legitimacy as an exit route for children in the public care system. It may gain traction in preference to adoption, as it offer less disruption to parental and family ties, leaving birth parents holding ultimate responsibility and accountability while their children retain an intact sense of personal and cultural identity. Strengthening one route would not be at the cost of terminating the other: there will always be circumstances when adoption affords a particular child the only viable exit route from public care. Ties with Public Services Are Strengthening Increasingly, adoption is developing stronger links with—perhaps merging into— public service provision. In accordance with principles established by the UN CRC and Hague, the developed western nations would all— if at varying speeds and to a varying extent—seem to be accepting the need to provide public services targeted towards supporting the parties in an adoption process, but particularly adoptees and adopters. The provision of pre- and post adoption counselling services, of supported adoptee/birth family contact arrangements are becoming more common as are information disclosure services, tracing and reunion services etc. Adoption may now be accompanied by other court orders, by financial assistance, by the ongoing involvement of a range of different professions, and various forms of public service provision. As adoption develops a stronger association with such services, so it will be required to conform to the standards of transparency, accountability, freedom of information etc that are now expected in that regime.

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Consequences of ICA Shrinkage Given the scale and spread of contemporary social dislocation caused by war and terrorism, the number of ‘failed states’, and given the probability of ongoing upheaval as a consequence of climate change, it is inconceivable that ICA will completely disappear. The current hiatus, perhaps long overdue, is best viewed as a breathing space that has arisen as a consequence of governments in both sending and receiving countries belatedly coming to terms with the requirements of Hague and other international instruments. In terms of scale, it is unlikely that other countries will fill the space left by the retreat of China, Russia and South Korea. However, as was previously the case in those countries, the socio-economic conditions currently prevailing in sub-Sahara Africa, some parts of South America and Asia suggest that they too may need to resort to some level of ICA for a time. It may be thought that, like the reduction in domestic adoption, a contributing factor to ICA decline is the increased availability of commercial surrogacy and improvements in IVF, but this is belied by the number of approved prospective adopters on ICA waiting lists. The probability of a future increase in both social volatility and natural disasters unfortunately indicates a corresponding probability of an increase in ‘child rescue’ scenarios when ICA is the only feasible response, indeed often a moral imperative. The Challenge Presented by Adoption in Indigenous Communities Again, in this as in previous editions, it seems important to draw attention to the characteristics of a more ‘open’ or simple form of adoption—often accommodating adult adoptees—associated with many indigenous communities and also to be found in Islamic families, communities and nations. The ready acceptance, for example, of ongoing contact arrangements as healthy, possible and often very beneficial for all parties has paved the way for the statutory introduction of post-adoption contact arrangements in many countries and has prepared the ground for further compromises to the former ‘clean slate’ approach. Pre-adoption information exchange is now often accommodated, perhaps involving personal profile videos and in some cases face-to-face meetings, while post-adoption contact arrangements are now more likely than not. Increasingly, the birth parent/s are involved in the process of selecting adopters. Such openness and transparency is also becoming more apparent in the introduction of legislation facilitating access to information held by adoption agencies etc and the provision of tracing and reunification services. Kinship adoption, long practiced and often preferred among indigenous people, is now emerging as a valued option for children in western public care systems. Moreover, indigenous communities have always attached great importance to ensuring that as children mature they retain a sense of where they belong, an awareness of cultural context, of their birth family’s history. The value of such links for a child, in promoting an authentic sense of personal identity through an orientation to their particular cultural background, is now strongly endorsed in the adoption processes of developed societies by international Conventions and national legislation.

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Conclusion

These characteristics, typical of adoption as practiced for centuries within indigenous and Islamic communities, have already found their way into the adoption processes of some modern western nations and in others are challenging the legitimacy of ‘closed’ aspects of their traditional approach to adoption. Adoption and the Welfare Principle It seems wholly appropriate that The Politics of Adoption should close with reflections on the current interpretation and importance of the welfare principle. It is perhaps particularly necessary in the light of what appears to be the highly relevant if still unfolding U.S. policy change signalled by the Family First legislation. It is hard to ignore the fact that although the numbers of those admitted to national public care systems are increasing, the majority of those exiting are returning home, even if only when of an age to vote with their feet. This is not to detract from the importance of the remedial contribution of foster carers and the input of many professionals made during the intervening period, nor to deny that for some children adoption must remain the optimal exit route from the care system. However, it remains the case that although parental abuse or neglect justifies the judicial transfer of care responsibility for increasing numbers of children to the state, in the long run it would seem that the best the state can do to for the welfare of the majority is to allow a reverse transfer back to parental care. Moreover, most often, those adopted out of the public system now do so subject to judicially sanctioned contact arrangements with birth parents and family. Further, as adults, the adopted often seek to rebuild links with their family of origin. The point being that the pull of birth family ties endure as a prevailing force for the majority of those entrusted to state care. This has become steadily more apparent in the legal compromises made to the formerly ‘clean slate’ approach to adoption, including contact orders and information disclosure procedures. Objectively other options may well be indicated and be logically preferable and safer. Subjectively, for those whose welfare is at risk, the need to address loss, repair damage suffered or to resolve conflicting attachments, tends to bring them back to their birth family. The Family First legislation would seem to represent government recognition of this blunt reality. Having for decades focused on outcomes from the public care system—pioneering the policies, laws and financial incentives that established nonconsensual adoption as the preferred means of promoting the welfare of children at that stage—the U.S. has turned fairly full circle to focus on prevention. Considerable federal funds are now being invested in the repair and restoration of failing families— a policy not without implications for ICA—to forestall any need for the judicial removal ofparental rights/responsibilities and possible non-consensual adoption. Arguably, there has been a long-standing disconnect between the legal and the psychological interpretation of the welfare principle. Law tends to dis-aggregate: breakdown into identifiable component parts; weigh and balance to determine probability etc. The welfare of a child, being less amenable to forensic analysis, is bound up in a complex inter-relationship their parents. The Bruno Bettelheim warning “love

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is not enough”,1 in reference to emotionally damaged children, drew attention to a complex entanglement in which the whole is decidedly more than the sum of its parts. The Family First initiative would appear to be based on the premise that giving effect to the welfare principle is best pursued, in the first instance, by investing in the welfare of birth parents. Adoption—whether domestic or international, consensual or not—is perhaps only truly justifiable when safe, birth parent care is wholly unavailable.

1 Bettleheim,

B., Loveis Not Enough, Macmillan, USA (1959).

Index

A Abandonment Intercountry adoption, and, 184 Poor Laws, and, 9 Abortion Australia, and, 448 Canada, and, 404 China, and, 817 England & Wales, and, 220 France, and, 579 Germany, and, 617 Ireland, and, 293 Islam, and, 694 Japan, and, 765 Korea, and, 729 New Zealand, and, 499 Romania, and, 654 Russia, and, 856 Sweden, and, 545 U.S., and, 348 Accouchement sous X general, 578 process of, 144, 598, 603 Accredited bodies, 160, 188, 190, 191, 242, 243, 257, 311–314, 318, 319, 321, 323, 338, 342, 343, 427, 511, 515, 516, 523, 524, 565, 592, 594, 628, 629, 634, 636, 637, 793, 842 Adar v. Smith, 381 Adopted Children’s Register, 283, 339 Adopters allegiance motive, and, 8 altruism motive, and, 165 Australia, and, 486 Canada, and, 437 childless couple, motive of, 10 China, and, 847

England & Wales, and, 279 ‘extra pair of hands’, motive of, 8 France, and, 609 general, 30, 101, 237 Germany, and, 645 infertility, and, 164, 712, 766, 827, 844, 850, 943, 960, 1006 inheritance motive, and, 7 intercountry, and, 180, 201, 237, 242, 254, 314, 321, 382, 394, 425, 426, 438, 474, 477, 521, 564, 565, 634, 635, 673, 697, 744, 821, 826–828, 834, 839, 840, 844, 847, 849, 879, 963 Ireland, and, 334 Islam, and, 718 Japan, and, 803 Korea, and, 751 needs of, 6, 29, 101, 163, 983 New Zealand, and, 532 rights of, 1013 Romania, and, 681 Russia, and, 888 Sweden, and, 570 U.S., and, 393 Adoption adopters, and, 1006 adults, of, 173, 298, 421, 431, 470, 626, 644, 759, 771, 775, 776, 960, 972, 1006 advantages of, 71 alternatives to, 170, 454, 509, 521, 625, 957 birth father, and, 28, 53, 61, 70, 128, 137, 205, 262, 303, 308, 313, 316, 318, 331, 379, 385, 387, 398, 422, 429, 440, 472, 525, 631, 672, 807, 910, 912 birth mother, and, 26, 28–30, 33, 57, 58, 259, 306, 316, 327, 328, 333, 338, 385,

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1020 386, 422, 442, 501, 518, 525, 535, 656, 797, 876, 911, 964 birth parents, and, 20, 28, 30, 45, 57, 60, 63, 87, 98, 99, 124, 249, 256, 260, 279, 286, 303, 316, 333, 344, 359, 382, 387, 393, 416, 422, 427, 430, 436, 441, 447, 464, 471, 473, 476, 477, 486, 492, 506, 516, 521, 523, 524, 532, 554, 561, 564, 565, 570, 572, 586, 597, 603, 608, 609, 611, 622, 627, 631, 643, 710, 718, 738, 741, 744, 751, 754, 760, 777, 789, 792, 803, 837, 875, 886, 887, 906, 919, 1006, 1014 bloodlines, and, 705, 723, 732, 756, 771, 774, 934, 986 bloodlink, and, 5, 62 characteristics of process, 101, 217, 343, 345, 445, 495, 723, 809, 927 children, needs of, 22, 164, 183, 229, 365, 482, 514, 701, 772, 776, 829, 873, 1008 ‘clean break’, and, 929, 934 concept of, 690, 700, 716, 761, 917 cultural identity, and, 123, 271, 413, 922 customary, 399, 418, 427, 431, 461, 496, 506, 711, 835, 896, 901, 906, 907, 909– 913, 918, 923, 924, 927–930, 932, 933, 938, 942, 949, 952, 954, 971 definition of, 35, 978, 984, 1008 denial, of, 184, 352, 369 domestic, 109, 110, 123, 158, 159, 165, 167, 169, 170, 179, 191, 202, 203, 213, 223, 226, 274, 278, 287, 289, 298, 299, 302, 303, 308, 312–314, 331, 332, 348, 352, 353, 356, 372, 373, 385, 392, 394, 404, 408, 409, 414, 416, 417, 419, 420, 448, 455, 458–460, 463, 496, 499, 504, 505, 515, 521, 523, 525, 528, 544, 549, 552, 557, 569, 578, 583–585, 594, 596, 617, 621, 636, 642, 646, 658–660, 662– 664, 666, 667, 669, 672, 682, 685, 696, 698, 700, 701, 706, 708, 709, 712, 716, 718, 723, 724, 726, 728, 731–734, 736– 742, 744, 745, 756, 772, 774, 783, 785, 820–828, 830, 831, 833, 835, 841, 842, 844, 849, 857, 860–862, 869, 871, 872, 880, 881, 892, 947, 949, 966, 968, 969, 983, 986, 990, 993, 996, 1003–1005, 1007, 1015 family law, and, 3, 22, 31, 38, 56–59, 94, 96, 102, 104, 105, 133, 154, 157, 161, 179, 218, 231, 241, 287, 305, 313, 418, 467, 482, 492, 501, 538, 558–560,

Index 575, 576, 613, 615, 624, 626, 649, 651, 705, 760, 761, 764, 776, 876, 909, 948, 970–975, 1007, 1013 foetus, and, 246, 499 freeing, for, 23, 34, 48, 49, 66, 94 full order, of, 98, 614, 644 illegitimacy, and, 400, 448, 508 indigenous people, and, 459, 493, 896, 900, 901, 942, 943, 971, 1015 infertility, and, 821 information rights, 54, 58, 78, 98, 101, 338, 398, 462, 954, 964, 966 Islam, and, 704, 713, 989 kinship, and, 7–9, 30, 61–64, 287, 290, 291, 304, 415, 426, 506, 623, 624, 644, 710, 828, 987, 1004, 1006, 1014, 1015 legal functions of, 30, 39, 81, 94, 104, 105, 107, 288, 896, 943, 1001, 1013 legal origins of, 7, 978 motives, 6, 44, 363, 563, 746, 799, 823 multi-racial nature of, 302 order, seeOrder ‘ordinary’, 566, 578, 767, 771, 774–777, 780–783, 786–788, 790–794, 797– 799, 801–807, 952 overseas, 28, 293, 301, 962, 984 parties, to, 390 plenary/plénière, 6, 576, 583, 584, 586, 590, 591, 595, 596, 600, 602–605, 607–610, 612, 956 political strategy, as, 978 principles, of, 736, 749 private family law, and, 26, 39, 42, 62, 82, 94, 103, 223, 280, 287, 430, 642, 649, 679, 957, 975, 1004 process, 206, 76, 77 public service nature of, 59 public services, and, 38, 59, 76, 77 right to, 528 simple, 4, 5, 158, 159, 188, 194, 301, 445, 576–578, 584, 586, 587, 590, 595, 596, 601, 607–610, 612, 614, 630, 644, 947, 949, 956, 960, 1002, 1008 social construct, as, 5, 6, 11, 39, 40, 977, 1001–1003 social role of, 292, 504, 543, 763, 943, 947, 948, 956, 977, 1003, 1008 ‘special’, 675, 676, 732, 734–737, 740– 744, 746, 748–754, 756, 757, 760, 767, 771–775, 778, 780–786, 788–799, 801–807, 983 stages of, 487

Index support services, and, 25, 55, 83, 85, 89, 97, 99, 100, 183, 212, 235, 239, 242, 243, 280, 281, 310, 336, 342, 384, 394, 400, 437, 438, 443, 487, 533, 558, 570, 571, 573, 610, 626, 646, 682, 752, 849, 889, 953, 963 taboo, and, 54, 82, 723, 917 traditional model, characteristics of, 42, 353, 434 transracial, and, 38, 46, 47, 74, 78, 120, 226, 381, 390, 401, 413, 414, 438, 459, 505, 506, 586, 623, 702, 728, 734, 774, 827, 864, 897, 990, 991 types of, 78, 187, 223, 297, 352, 408, 419, 443, 454, 503, 548, 575, 576, 583, 621, 659, 697, 731, 771, 780, 787, 821, 861, 906, 909, 963 voluntary societies, and, 54, 65, 312 war, and, 18, 199, 723, 725, 728, 747, 756, 991 Adoption Action Incorporated v. AttorneyGeneral (NZ), 510, 522 Adoption Acts Aboriginal Custom Adoption Recognition Act, the, 1994 (Can), 906, 910, 913 Adoption Act, the, 1926 (E&W), 223 Adoption Act, the, 1949 (E&W), 21 Adoption Act, the, 1952 (Irl), 289, 290, 298, 299, 301 Adoption Act, the, 1955 (NZ), 496, 501, 507, 508, 512, 514, 516–518, 521–524, 526, 529–531, 534–538, 928, 929 Adoption Act, the, 1964 (Irl), 307 Adoption Act, the, 1974 (Irl), 60, 307 Adoption Act, the, 1976 (E&W), 217, 236, 238, 256, 260, 270 Adoption Act, the, 1976 (Ger), 626, 648 Adoption Act, the, 1976 (Irl), 307 Adoption Act, the, 1988 (Irl), 297, 299, 307, 324, 326, 330 Adoption Act, the, 1988 (Jpn), 778 Adoption Act, the, 1991 (Irl), 300, 301, 306, 307, 339 Adoption Act, the, 1998 (Irl), 300, 306, 307, 317, 335 Adoption Act, the, 2000 (Aus), 461, 462, 466, 468, 475, 477, 478, 480–482, 484, 487, 491 Adoption Act, the, 2010 (Irl), 289, 299, 301, 303–310, 312–315, 317–329, 332–335, 338–340, 343 Adoption agencies

1021 accreditation, of, 373–375, 626, 628 Australia, and, 469, 491 Canada, and, 419, 442 China, and, 833 England & Wales, and, 241, 242, 260, 284, 286 France, and, 592, 594 functions of, 628 Germany, and, 628, 629, 648 Ireland, and, 311, 342 Islam, and, 708, 709 Japan, and, 784 Korea, and, 740 New Zealand, and, 515, 536 records of, 342 regulations, 1993 and 1995, 466, 468 role of, 58 Romania, and, 669 Russia, and, 873 Sweden, and, 559 tracing and reunion services of, 400, 1014 U.S., and, 363, 373, 397 Adoption Agency (Regulation) Act 2016 (Jpn), 778 Adoption Allowances, 38, 45, 55, 83, 86, 91, 100, 239, 253, 311, 398, 957, 1007 Adoption (Amendment) Act 2013 (Irl), 308 Adoption (Amendment) Act 2017 (Irl), 297, 303, 308, 311, 315, 316, 319, 320 Adoption and Children Act, 2002 (E&W), 217, 226, 227, 236, 239, 241, 243, 244, 246, 252, 257, 258, 265, 266, 274, 275, 277, 278 Adoption and Children Act Register, 23, 24, 28, 35, 36, 47, 57, 61, 72, 160, 161, 217, 226, 227, 236, 239, 241, 243, 244, 246, 252, 257, 258, 265, 266, 274, 275, 277, 981 Adoption and Foster Care Analysis and Reporting System (AFCARS), 350, 354, 355, 369 Adoption and Information Tracing Bill 2016 (Irl), 307, 338 Adoption and Safe Families Act 1997 (U.S.), 361, 365, 368, 377, 386, 388 Adoption Assistance and Child Welfare Act, the, 1980 (U.S.), 365, 369 Adoption Authority of Ireland, 307, 314 Adoption by Private Agency Act 2016 (Jpn), 794, 808 Adoption Contact Register, 245, 282–286, 310, 490, 535

1022 Adoption Council of Canada, 409, 419 Adoption & Fostering, journal of, 46, 168, 169, 178, 183, 217, 226, 350, 392, 459, 509, 582, 586, 620, 633, 819, 992 Adoption (Hague Convention, Adoption Authority and Miscellaneous) Act, the, 2008 (Irl), 309, 310 Adoption in International Situations Act 2018 (Swd), 555 Adoption (Intercountry Aspects) Act, the, 1999 (E&W), 236, 238, 243, 254 Adoption Intermediation Act (Ger), 618, 625–629, 636, 643, 646–648 Adoption Law 1992 (amended in 1998) (China), 832 Adoption Law of the People’s Republic of China, 831, 832, 837, 841 Adoption of Children Act, the, 1881 (NZ), 496, 537 Adoption of Children Act, the, 1896 (Aus), 445 Adoption of Children Act, the, 1955 (NZ), 496, 501, 507, 508, 512, 514, 516– 518, 521–524, 526, 529–531, 534– 538 Adoption of Children Act, the, 1964 (Aus), 466, 476, 478, 482 Adoption of Children Act, the, 1995 (Aus), 466, 492 Adoption of Children Act, the, 2006 (Aus), 466, 486 Adoption of JLK and CRK (Aus), 482 Adoption of RCC and RZA (Aus), 482 Adoption order Australia, and, 481, 482, 486 Canada, and, 434, 437 China, and, 845, 846, 848 effect of, 45, 81, 82, 98, 99, 279, 332, 334, 400, 627, 641, 716 England & Wales, and, 273, 274, 279 France, and, 607, 608, 610 Germany, and, 642, 643 interim, 194, 434, 437, 524, 526, 530 Ireland, and, 330, 331 Islam, and, 715, 716, 719 Japan, and, 801, 802, 804 Korea, and, 749–751 New Zealand, and, 530, 531, 533 Romania, and, 679–681 Russia, and, 885, 886, 888 Sweden, and, 569, 570 U.S., and, 391, 393

Index Adoption Panel Australia, and, 469 general, 255, 376, 469 placement decision, and, 92, 312, 972 remit of, 20 the 2002 Act, and, 44, 236, 242, 251, 253, 255 Adoption Placement Act 1976 (amended in 1993) (Ger), 626 Adoption Policy Australia, and, 458 Canada, and, 416 China, and, 420 England & Wales, and, 25 France, and, 594, 603, 614 Germany, and, 615, 626, 638, 642, 643, 647 Ireland, and, 86, 87, 96, 312 Islam, and, 5, 703, 704, 713, 718, 989 Japan, and, 760, 765, 773, 780, 783, 792, 800, 952 New Zealand, and, 87, 92, 306, 343, 500, 504, 515, 516, 530–533, 535, 927, 956, 988 Sweden, and, 61, 136, 303, 306, 548, 549, 552, 556, 557, 559–561, 569, 733, 952, 957 U.S., and, 86, 88, 241, 258, 260, 284, 302, 312, 348, 364, 373, 375, 376, 391, 393, 397, 441, 443, 481, 834, 952, 962, 965, 971, 974, 980, 988, 1004 Adoption process administrative agencies role in, 82, 84, 241, 311, 559, 708, 784 Australia, and, 458, 481, 488, 952 birth parents, and, 5, 11, 20, 25, 27, 30, 32, 34, 44, 50, 315, 316, 376, 553, 565 Canada, and, 399, 419, 427, 429, 443, 952 child, entry to, 955 China, and, 833, 952, 962 commercial aspects of, 312, 373, 398, 469, 769, 873, 938, 950, 952, 969 England & Wales, and, 218, 228, 239, 241, 287, 335, 952–954, 957, 960, 971, 987, 988 France, and, 591, 603 general, 32, 44, 85, 88, 95, 101, 245, 335, 400, 472, 488, 542, 630, 662, 663, 668, 679, 773, 783, 824, 925, 938, 943, 962 Germany, and, 952 Ireland, and, 86, 87, 96, 306, 952, 1005 Islam, and, 714, 989

Index Japan, and, 760, 765, 773, 780, 783, 792, 952, 962 judicial role in, 245 Korea, and, 74, 459, 733, 735, 740, 741, 747, 753, 754, 756, 952, 1015 New Zealand, and, 87, 306, 515, 516, 523, 530, 927, 960 outcome of, 39, 81, 96–98, 272, 290, 330, 391, 434, 481, 530, 568, 607, 642, 679, 715, 749, 801, 802, 845, 885, 947 Romania, and, 73, 420, 681, 952 Russia, and, 160, 302, 357, 863, 871, 874, 886, 888, 947, 956 stages of, 82, 239, 679 Sweden, and, 61, 136, 552, 556, 560, 570, 733 thresholds for entering, 85, 377, 400, 759 thresholds for exiting, 95, 267, 328, 389, 400, 430, 479, 527, 567, 606, 640, 678, 714, 748, 798, 843, 884 U.S., and, 86, 241, 284, 302, 312, 373, 376, 391, 397, 398, 952, 988, 1004 Adoption Support Agency, 243, 281, 282, 284, 285, 342, 397, 438, 491, 536, 648, 756, 808 Adoption support services Australia, and, 487 Canada, and, 437, 443 China, and, 437, 849, 962 England & Wales, and, 235, 239 France, and, 610 Germany, and, 646 Ireland, and, 336 Islam, and, 5 Japan, and, 805 Korea, and, 752 New Zealand, and, 533 Romania, and, 682 Russia, and, 889 Sweden, and, 570 U.S., and, 551, 572 Adoption Support Services Regulations 2005 for England, 235, 280 Adoption Tax Credit U.S., 364 Adoption trends Australia, and, 166, 445, 454, 460, 461, 492 Canada, and, 399, 401, 408 China, and, 158, 826 England & Wales, and, 42 France, and, 602 Germany, and, 204, 621, 626 intercountry adoption, and, 73, 120, 157

1023 Ireland, and, 223 Islam, and, 120 Japan, and, 957 Korea, and, 735 New Zealand, and, 496, 505 Romania, and, 163 Russia, and, 869 Sweden, and, 211, 542, 566, 960 U.S., and, 211, 481, 989 Adoptive Couple v. Baby Girl, 379, 390, 940 Agence Française de l’adoption (Fr), 589, 592, 593, 604, 610 Ageyevy v. Russia, 139 A.H. and Others v. Russia, 152, 863, 890 Aide Sociale à l’Enfance AIDE (Fr), 584, 587, 592, 594, 597, 599, 612 Airey v. Ireland, 126, 128 Akiba, J., 781 Alekseyev v. Russia, 879 Allison, J., 291, 294 American Indian/Alaska Native (AI/AN), 934, 936 AMS v. AIF: AIF v. AMS, 456 Anayo v. Germany, 137 Ancestor worship, 761, 762, 764, 812 Antokolskaia, M, 864–866, 883, 884 Assisted reproduction services Australia, and, 449 Canada, and, 404 China, and, 817 England & Wales, and, 220 France, and, 580 Germany, and, 618 Ireland, and, 294 Islam, and, 694 Japan, and, 766 Korea, and, 729 New Zealand, and, 500 Romania, and, 655 Russia, and, 857 Sweden, and, 545 U.S., and, 349 Assisted reproductive technology in Australia and New Zealand 2010, 454 Atkin, Bill, 500, 504, 506, 509, 524, 543, 546, 767, 785, 931 Attachment theory of, 27, 52, 53, 67, 231 Attorney General v. Dowse, 211, 335 Australian Capital Territory Adoption Act, the, 1993 (Aus), 919

1024 Australian Institute of Health and Welfare, 166, 445, 449, 452–454, 456–460, 463, 465, 468, 488–491, 918 Australian Relinquishing Mothers Society (ARMS), 448, 488, 985 B BAAF, 47, 65, 71, 168, 169, 178, 217, 252, 283, 350, 392 Baby-farming, 17, 30, 760 Baby hatches, 348, 728, 765, 816, 817, 1005 Bala, N. and Ashbourne, C, 58, 401, 405 Barn and Kirton, 226 Barnardos, 9, 336, 469 Bartholet, E., 162, 164, 178, 180, 181, 195, 211, 961, 967, 968, 988, 994, 995, 997–999 Barth, R., 553, 562 Bates, F., 461, 481 Bean & Melville, 39 Behrendt, L., 916 Bell, C.E. and Patterson, R.K., 907 Benet, K., 7, 291 Berquist, K., 731 Beson v. Director of Child Welfare (NFLD), 429, 432 Bettleheim, B, 1017 Biktagirova, G.F, 859 Birth parents as adopters, 30, 165 effect of adoption on, 67, 461 failed parenting, and, 743 involvement in decision-making, 143 rehabilitation, of, 562 welfare benefits, and, 50 Biryukova, S and Sinyavskaya, O., 859 Blackstone, Sir W., 14, 763 Bogonosovy v. Russia, 886 Bowlby, J., 5, 52, 231 Brackeen v. Bernhardt (US), 940 Brehon Laws, 8, 290, 291, 978 Bridge and Swindells, 22, 161 Bringing Them Home, report, 448, 489, 917, 924 British Association of Social Workers, 56, 225, 468 Brodzinsky and Schlechter, 44 Brussels II, 159, 196, 237, 261 Bryant, T.L, 763, 771, 772, 804 Bual, H, 936, 937, 939 Buchberger v. Austria, 144 Bundeszentralstelle für Auslandadoption (Ger), 628

Index Burwell, S.N., 723, 756 Butler-Sloss, P., 264

C CAFCASS, 84, 245, 255, 256, 263, 271, 800, 953 Canada, 9, 10, 18, 163, 169, 199–201, 206, 210, 226, 399–409, 411–421, 425, 426, 430, 431, 436–439, 442, 443, 451, 510, 895–909, 911, 912, 935, 942, 950, 955, 957–964, 971, 973, 974, 979, 986–988, 1001 Canadian Foster Care Adoption Attitudes Survey, 399, 410, 411 Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 431 Care of Children Act 2004 (NZ), 501, 508– 510, 514, 518, 529, 531, 929, 931 Care of Young Persons (Special Provisions) Act 2012 (Swd), 546, 547, 555, 556, 568 Case Soares de Melo v. Portugal, 127 CAS of Toronto v. T.L., 410 CAS Peel v. W.O., R.S.B. , H.B. and S.B., 417 Catholic Charities, 374, 980 CCCWA (China), 812, 833, 952 Ceau¸sescu era of, 655, 660 policies of, 654 Chambers, Lori, 406 Chbihi Loudoudi and Others v. Belgium, 133 Child abuse and protection, 129, 819 Child and Family Agency Act 2013 (Irl), 309, 313 Child and Youth Services Act 1991 (Ger), 626 Child care adoption from, 94 Australia, and, 952 Canada, and, 406, 409 China, and, 811, 824 England & Wales, and, 223 failure of, 53 France, and, 581, 584 Germany, and, 620, 622 grounds for, 94, 248 indigenous people, and, 510, 943 Ireland, and, 96, 290, 300, 344, 448, 954, 961 Islam, and, 695, 708 Japan, and, 767, 768, 772

Index kinship, and, 63, 276, 297, 299, 350, 351, 359, 398, 504, 864, 923, 992 Korea, and, 356 New Zealand, and, 504 Romania, and, 46, 166, 207, 660, 671, 685, 957, 963, 971, 975 Russia, and, 46, 166, 859, 963, 974, 994 Support services, and, 100, 175, 243, 281, 394, 443, 448, 562, 908, 963, 989, 1004, 1007 Sweden, and, 546, 549 U.S., and, 353, 388 Child Citizenship Act 2000 (US), 372, 377, 393 Child development, 43, 49, 51, 52, 658 Child Guidance Centres (CGC), (Jpn), 767, 769, 770, 772, 779, 780, 784, 785, 793 Child Placement Principle (Aus), 459, 461, 463, 470 Child Protection Service (CPS), (Rom), 652, 653, 654, 656–660, 662, 664–667, 670–673, 675, 676, 680, 685 Children abandonment of, 165, 654, 697, 856 availability for adoption, of, 247, 966 change of name, adoption and, 511 chastisement of, 573 consent of, 57, 526, 851 cultural identity of, 909 definition of, 86, 279, 499 Islam, and, 700 non-discrimination, and, 545 orphan status of, 826 self-determination, and, 120 separation from parents, of, 423 views of, 57, 188, 432, 480 Children’s rights, 6, 37, 54, 116, 118, 149, 175, 207, 413, 417, 544, 571, 661, 666, 776, 955 Children Act, the, 1975 (E&W), 254 Children Act, the, 1989 (E&W), 217, 227, 229, 231, 233, 236, 237, 243, 266, 275, 283 Children Act, the, 2004 (E&W), 217, 235 Children Act, the, 2006 (E&W), 217, 235 Children and Families Act 2014 (E&W), 217, 222, 226, 233, 234, 257, 270, 274, 280 Children and Family Relationships Act 2015, 295, 308 Children and Parents Code (Swd), 546, 554, 557

1025 Children and Young Persons Act 2008 (E&W), 235 Children First National Guidance for the Protection and Welfare of Children, 2017 (Irl), 308 Children, increase in public care Australia, and, 452 Canada, and, 406 China, and, 818 England & Wales, and, 221 France, and, 581 Germany, and, 619 Inuit, and, 407 Ireland, and, 296 Islam, and, 695 Japan, and, 767 Korea, and, 730 New Zealand, and, 502 Romania, and, 656 Russia, and, 858 Sweden, and, 546 U.S., and, 350 Children in need, 22, 85, 164, 201, 202, 232, 237, 343, 373, 414, 465, 512, 515, 549, 633, 667, 761, 770, 771, 784, 793, 799, 1004, 1011 Children’s Aid Society of Kingston v. F.R., 423 Children’s Aid Society v. E.L, 423 Children & Social Work Act 2017 (E&W), 234 Children Young Persons and Their Families Act 1989 (NZ), 512 Child rescue general, 10, 11, 15, 73, 75, 148 Haiti, and, 991 Child Welfare Act 2008 (Kor), 738 Child Welfare Act (Jpn), 767–770, 782, 785, 795 Child Welfare Service (Fr), 579, 584, 592, 593, 595–597, 599, 600, 602, 604– 607 Chou, S., and Browne, K., 183, 582, 586 Citizenship and adopted child Australia, and, 484 Canada, and, 435 China, and, 846 England & Wales, and, 277 France, and, 608 Germany, and, 643 Ireland, and, 332 Islam, and, 716 Japan, and, 802

1026 Korea, and, 750 New Zealand, and, 531 Sweden, and, 569 U.S., and, 392 Civil Affairs Bureau (China), 850 Civil law Civil Code 1896 (Jpn), 780 Civil Code (Burgerliches Gesetzbuch) (Ger), 628, 629 Civil Code (Fr), 581 Civil Code (Kor), 735 Civil Code (Rom), 663 Civil Code (Swd), 541, 542, 552, 555 general, 974 tradition of, 552, 592, 613 Civil Partnership Act 2004 (E&W), 219, 252 Civil Partnership and Certain Rights and Obligations of Co-habitants Act 2010 (Irl), 308 Civil Registration Act 2004 (Irl), 296 Civil Registry Office, ZAGS (Rus), 875, 888 C (M.A.) v. K. (M.), 405 Cobo, M., 895 Code of Civil Procedure of the Russian Federation, 882 Commissioner for Human Rights, 111, 118, 196, 301, 968 Committee on the Rights of the Child Australia, and, 457, 480, 489 Canada, and, 406, 416, 417, 432, 439, 440 China, and, 829, 832, 837, 845 England & Wales, and, 244 France, and, 587, 606, 607, 611–613 Germany, and, 624, 627, 641 Ireland, and, 305, 330 Islam, and, 705 Japan, and, 776, 783, 800 New Zealand, and, 510, 513 Sweden, and, 558 U.S., and, 363, 371 Common law England & Wales, and, 238, 280 jurisdictions of, 62, 335, 391–393, 486, 531, 542, 594, 614, 808, 949–951, 954, 955, 957, 958, 964, 965, 971, 974, 989, 1014 tradition of, 123, 492, 587, 973, 978, 979 Concurrent planning, 69, 222, 230, 251, 257, 368, 937 Confucian, values of, 726, 757, 837, 1002

Index Consanguinity, 99, 184, 270, 278, 333, 420, 437, 644, 662, 691, 716, 718, 793, 802, 954 Conseil national de la protection de l’enfance (CNPE), (Fr), 592 Consent child, and, 57, 117, 197, 198, 255, 272, 388, 433, 480, 484, 749, 848, 875 parents, and, 18, 39, 474, 1005 Consent for placement, 256 Contact Australia, and, 483 condition for, 76, 77, 91, 96, 306, 311, 329, 462, 486, 956 registers for, 83, 98, 101, 102, 130, 239, 245, 282–286, 310, 338, 341, 488–490, 535, 613, 808 US, and, 410, 416, 424, 435, 439 vetoe of, 396, 484, 490, 964 Council of Europe, 109–111, 135, 196–198, 207, 237, 301, 668 Counselling adopters, and, 190, 336, 610, 677 birth parent/s and, 740 child, and, 91, 484 pre-placement, 83, 85, 90, 239, 254, 321, 385, 426, 475, 522, 558, 564, 602, 635, 674, 712, 723, 739, 744, 791, 841, 872, 880, 881, 950, 951 rights to, 190, 255 Cretney, 9, 20, 200 Cultural identity, 74, 123, 180, 187, 189, 208, 226, 261, 271, 413, 426, 428, 474, 530, 576, 593, 698, 702, 734, 849, 903, 904, 909, 919, 921, 922, 926, 932, 935, 939, 944, 964, 1007, 1014 Curtis v. Curtis, 362, 389 Custodianship, 21, 72, 859, 868

D De facto adoptions, 18, 19 Department of Adoptions and Postadoptions, SPAS (Rom), 669, 671, 681 Determining body Australia, and, 470 Canada, and, 420 China, and, 834 England & Wales, and, 244 France, and, 594 Germany, and, 629 Ireland, and, 313

Index Islam, and, 709 Japan, and, 786 Korea, and, 741 New Zealand, and, 516 Romania, and, 670 Russia, and, 874 Sweden, and, 560 U.S., and, 376 Dethloff, Nina, 622, 629 Dima Yakovlev law, the, 152, 861, 870 Director-General of Social Welfare v. L, 527, 528 Discrimination Indigenous people, and, 116 Dissolution of an adoption order Australia, and, 486 Canada, and, 437 China, and, 848 England & Wales, and, 279 France, and, 610 Germany, and, 645 Ireland, and, 335 Islam, and, 719 Japan, and, 804 Korea, and, 751 New Zealand, and, 533 Romania, and, 681 Russia, and, 888 Sweden, and, 570 U.S., and, 393 Does v. State of Oregon, 396 Doe v. Sundquist, 396 Donaldson Adoption Institute, 355, 357, 358 Doughty, J., 218, 240, 258 Down Lisburn Health and Social Services Trust and Another v. H and Another, 41 ’Drift in care’, 233 Due process, 125, 240, 360, 361, 387, 388, 390, 898 Duncan, W., 6, 189, 212, 304, 527 Durie-Hall, D. amd Metge, D.J., 927, 929, 933

E Eastern Health Board v. An Bord Uchtála, 315 E.B. v. France, 131, 135, 136, 600, 602 Education and Adoption Act 2016 (E&W), 234 Effect of adoption order Australia, and, 484

1027 Canada, and, 435 China, and, 846 England & Wales, and, 277 France, and, 608 Germany, and, 643 Ireland, and, 332 Islam, and, 716 Japan, and, 802 Korea, and, 750 New Zealand, and, 531 Romania, and, 680 Russia, and, 886 Sweden, and, 569 U.S., and, 392 EH v. London Borough of Greenwich & Others, 230 Eligibility of adopters Australia, and, 472 Canada, and, 424 China, and, 838 England & Wales, and, 252 France, and, 599 general, 85 Germany, and, 633 Inuit, and, 913 Ireland, and, 318 Islam, and, 711 Japan, and, 790 Korea, and, 743 New Zealand, and, 519 Romania, and, 673 Russia, and, 878 Sweden, and, 562 U.S., and, 380 Elsholz v. Germany, 136 Emperor Justinian, 12, 978 Eski v. Austria, 128, 147 Estin, A., 177, 182, 345, 358, 366 European Certificate of Adoption, 110 European Convention for the Protection of Human Rights and Fundamental Freedoms Article 6, and, 153 Article 8, and, 67, 128, 139, 149, 153, 172, 259, 864, 966, 970, 972, 989 Article 12, and, 198, 966 Article 14, and, 137, 141, 154, 222 ‘margin of appreciation’, and, 114, 115, 124, 130, 144, 878, 879, 970 ‘proportionality’ principle, of, 259 European Convention on the Adoption of Children 1967, 153, 172

1028 European Convention on the Adoption of Children 2008, 109, 116, 721 European Court of Human Rights (ECtHR), 29, 61, 67, 109, 110, 114, 123, 125, 126, 128–130, 132, 133, 136, 141, 145, 146, 149, 250, 251, 272, 279, 294, 361, 558, 562, 579, 587, 588, 597, 600, 602, 613, 632, 640, 643, 655, 863, 872, 876, 877, 879, 886, 950, 953, 964, 970, 971, 987, 1002, 1006 F Family 21st century, and, 1009 Family adoption Australia, and, 466 birth parent, by, 60 blood-link, and, 59 Canada, and, 417 China, and, 838 England & Wales, and, 260 Family and Social Welfare Code, 593, 595, 596, 598, 599, 601 France, and, 577 general, 59, 76 Germany, and, 625 Ireland, and, 308 Islam, and, 693 Japan, and, 764, 814 Korea, and, 725 M¯aori, and, 929, 931 New Zealand, and, 510 Preamble to, 235, 1000 Romania, and, 652 Russia, and, 854 Sweden, and, 554 trends in, 42, 223, 297, 352, 408, 454, 503, 548, 575, 583, 621, 659, 697, 731, 771, 821, 861 U.S., and, 389 welfare principle, and, 62 Family Affairs Proceedings Act 2011 (Jpn), 776, 778, 786, 796, 798 Family Code (Rus), 868 Family First Prevention Services Act 2018 (US), 355, 362, 364–366 Family First Transition Act 2019 (US), 366 Family law coherence of, 970, 974, 1010 internationalisation of, 176 principles, adoption, and, 305, 462, 624, 776

Index private, adoption, and, 559, 760 public, adoption, and, 408 Family Law and Parental Support Authority (Swd), 560 Family life gay/lesbian rights to, 111, 640 Islam, and, 690, 692, 705, 716 nature of, 41, 49, 133 preservation of, 177, 368, 369 privacy of, 137 right to, 110, 141, 554, 567 U.N. definition of, 105 Filiation, 58, 576, 578–580, 584, 597, 598, 600, 603, 604, 608, 656, 683 First Nations, 399, 401, 407, 411, 413, 415, 418, 420, 427, 436, 443, 896, 902, 907, 908, 911 First party adopters Australia, and, 474 Canada, and, 425 China, and, 838 England & Wales, and, 253 France, and, 600 general, 59, 97 Germany, and, 634 Ireland, and, 320 Islam, and, 712 Japan, and, 774 Korea, and, 734 M¯aori, and, 506, 521 New Zealand, and, 521 Romania, and, 662 Russia, and, 864 Sweden, and, 564 U.S., and, 382 Flintshire County Council v. K, 209 Foetal alcohol syndrome, 57 Foster care adoption as alternative to, 70 Australia, and, 452 Canada, and, 407 China, and, 819 disadvantages of, 71 England & Wales, and, 222 foster parents, applicants, as, 83, 223, 323, 521, 864 France, and, 581 general, 70 Germany, and, 620 Ireland, and, 297 Islam, and, 696 Japan, and, 768 Korea, and, 730

Index long-term, 5, 6, 67, 69–71, 85, 123, 230, 233, 297, 299, 307, 389, 392, 492, 508, 549, 554, 562, 572, 581, 588, 710, 944, 957, 973, 1008, 1014 New Zealand, and, 502 placement for adoption, and, 317, 594, 920 Romania, and, 657 Russia, and, 859 Swedan, and, 547 U.S., and, 351 Frank, R., 616, 627 Frette v. France, 134, 152 Fulchiron, H., 576 Further Consolidated Appropriations Act 2020 (US), 366

G Gaskin v. United Kingdom (Access to Personal Files), 129 Gibbons, J.L. and Rotabi, K.S., 180, 200, 201, 374, 967, 995, 997 GIFT, 50, 166, 170, 182, 220, 349, 580, 695 Gift relationship, 5, 38, 1000 Glaser v. United Kingdom, 125 Godelli v. Italy, 130, 147, 195, 1002 Goodger, K., 498 Gorgulu v. Germany, 67, 250 Government Decision No. 448/2017 (Rom), 665, 670, 683 Government Decree No. 654 (Rus), 871, 873 Grandparent, adoption by, 61 Greenhalgh and Li, 813 Guarantee of Adopted Children’s Rights and Interests by Intensive Protection Measures 2011 (China), 831, 842 Guardian ad litem, 95, 245, 269, 329, 330, 481, 641 of last resort, State as, 104, 354, 974 Guardianship Australia, and, 465 Canada, and, 412 China, and, 830 England & Wales, and, 233, 276 France, and, 588, 595 general, 72 Germany, and, 627 Ireland, and, 306 Islam, and, 706 Japan, and, 777 Korea, and, 745 M¯aori, and, 929

1029 New Zealand, and, 509, 510 Romania, and, 667 Russia, and, 859, 865, 867, 874, 881, 885, 886 Sweden, and, 554 U.S., and, 365, 366, 375, 392 Guardianship Act 1997 (Ger), 627 Guardianship of Infants Act 1964 (Irl), 295, 329, 331, 334 Guardianship of Minors Act 1971 (E&W), 34 G v. Netherlands, 131

H Haase v. Germany, 67, 138, 250, 632 Hadith, the, 689, 704 Hague Conference on Private International Law, 47, 122, 176, 187, 205, 335 Hague Conference Permanent Bureau, 110, 177 Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoption 1965, 172 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 Article 1, 186, 213 Article 26, 159 Article 27, 159 Australia, and, 463, 467 Canada, and, 163, 169, 199–201, 206, 210 children, and, 164, 189, 201 China, and, 158, 160, 168, 194, 196, 200, 202, 203, 210 England & Wales, 238 England & Wales, and, 161, 171 France, 159, 166, 169, 200, 201, 204 France, and, 587, 591 general, 117, 158, 186, 965, 995 Germany, and, 197, 204 Indigenous people, and, 900 Ireland, and, 163, 166, 169, 170, 183, 200, 204, 205 Islam, and, 159, 213 Japan, and, 159, 196, 774 Korea, and, 168, 170, 179, 180, 196, 200–203, 210, 211 limitations of, 195 New Zealand, and, 169, 211, 513 outcomes, 193

1030 preamble to, 189 procedures of, 192 Romania, and, 159, 168, 176, 179, 197, 199, 203, 206, 207 Russia, and, 160, 166, 168, 196, 199– 201, 203, 205, 206, 209, 210, 212 Sweden, and, 166, 169, 200, 204, 213 U.S., and, 158, 166, 195, 203 Hague Signatory Nations, 195, 196, 302 Haimes, E. and Timms, N, 184 Hand v. George, 278 Harada, A., 767, 785 Hayes, P. and Habu, T., 771, 773, 774, 777, 784, 793, 796, 799 Hearing, the Australia, and, 477 Canada, and, 429 China, and, 843 England & Wales, and, 263 France, and, 604 general, 93 Germany, and, 638 Ireland, and, 324 Islam, and, 713 Japan, and, 794 Korea, and, 746 New Zealand, and, 525 Sweden, and, 566 U.S., and, 387 with consent, 93, 264, 325, 387, 429, 478, 525, 566, 605, 638, 677, 713, 746, 795, 843, 883 without consent, 93, 265, 325, 388, 430, 478, 526, 566, 605, 639, 677, 713, 748, 797, 843, 883 He Jiankul, 999 Hendricks v. The Netherlands, 145 Hijab, 721, 722 HK v. Finland, 143 Hoju, 725, 732, 744 Hokkanen v. Finland, 125, 131 Hollinger, J.H., 37, 195, 196, 353, 356–359, 369, 373, 375, 377, 385, 391, 394, 395, 949, 956, 995, 1004 Holt, H., 725, 733, 740, 756 Homeschooling, 384 Hopkinson Committee, 19 Horsburgh Committee, 20 Houghton Committee, 4, 15, 21, 22, 29, 42, 54, 64, 65 Hoye v. Neely, 472 Hubinette, T., 169, 179, 180 Hu, Jieren, vi

Index Hukou, 815, 835, 836, 847, 848 Human Assisted Reproductive Technology (HART) Act 2004, 500 Human Rights ‘child rescue’, and, 148 consent of child, and, 57 disabled children, and, 100, 221, 457, 733, 768, 820, 828, 836, 969, 1005 gay couples, and, 111, 152 identity and cultural affiliation, and, 123 indigenous community, and, 112 information access, and, 119, 129, 144 poverty, and, 140 ‘rehoming’, and, 385, 969 ‘subsidiarity’, and, 177, 967, 968 Human Rights Committee (HRC), 115, 237, 497 Human Rights Watch, 661, 767, 772, 808, 834, 854 Hurst Committee, 21 H v. United Kingdom, 126 H.V. v. M.S., 434

I I and I v. S, 534 Identity child’s sense of, 119 culture, and, 932, 943 intercountry adoption, and, 211 UNCRC, and, 118 Illegitimacy Australia, and, 445, 448 Canada, and, 400 China, and, 815 England & Wales, and, 215 France, and, 580 general, 16, 86, 103 Germany, and, 627 Ireland, and, 289, 292, 316, 317, 330 Islam, and, 1005 Japan, and, 789 New Zealand, and, 508, 512 sanction of, 14 Sweden, and, 544, 545 U.S., and, 347 Indian Act 1876 (Can) general, 903, 904 Indian Child Welfare Act 1978, ICWA (U.S.), 370, 390, 935, 937–941 Indigenous People of Australia ’stolen generation’ of, 903, 904, 915, 917, 919, 920

Index Aboriginals Ordinance 1918, 916 Aborigines Protection Act 1909, 916 Aborigines Protection Board, 916 Bringing Them Home, report, and, 917 children, placement of, 921 customary adoption, and, 906, 909, 910, 913, 923, 927, 932, 938, 942 definition of, 895 general, 896, 900, 901 kinship, and, 915, 920, 922–924, 926, 929, 933, 939, 944 statutory process and, 896, 909, 913, 918, 927–930 the Child Placement Principle and, 920, 922 Infant Life Protection Act 1872, 17 Information aboriginal context, and, 919 adoption agency, and, 284, 342, 397, 442, 491, 536, 648, 685, 756, 778, 808 conditional access to, 284, 340, 396, 441, 490, 536, 572, 613, 648, 684, 755, 807, 851 disclosure of, 101, 282, 337, 395, 439, 488, 534, 571, 611, 647, 683, 720, 754, 805, 850, 890 duty to preserve, 195 intercountry adoptions, and, 339, 441, 572, 647 ‘protected’, 286 registers of, 612, 754, 850 Registrar General, and, 245, 314, 421, 470, 516, 560, 630, 670 rights to, 101 Information Disclosure, Tracing and Reunification Services Australia, and, 488 Canada, and, 439 China, and, 850 England & Wales, and, 282 France, and, 610 general, 101 Germany, and, 646 Ireland, and, 336 Islam, and, 720 Japan, and, 805 Korea, and, 753 New Zealand, and, 534 Romania, and, 683 Russia, and, 890 Sweden, and, 571 U.S., and, 394 Inheritance

1031 Australia, and, 465 Canada, and, 417, 420, 436, 437 China, and, 815 consequences of adoption, for, 15, 290, 705 England & Wales, and, 276 France, and, 576, 578, 609 general, 5, 7, 15, 17, 19, 20, 35, 36, 39, 43, 44, 63, 75, 91, 98, 103, 110, 184, 271 Germany, and, 635, 644 Ireland, and, 290 Islam, and, 690, 691, 697, 699, 705, 707, 713, 714, 716–719, 721, 722 Japan, and, 763, 775, 777, 793, 801, 803, 804, 806 kafala, and, 6, 706 Korea, and, 732, 734, 750 M¯aori, and, 932, 934 motive, as, 7 New zealand, and, 531 Romania, and, 656, 674 Russia, and, 866 Sweden, and, 544 U.S., and, 347, 392, 393 In re Alexandria P (US), 937 In re Baby M, 349 In re E.B. and Others (Minors), 33 In re JH (An Infant), 299 In re K, A Local Authority v. N and Others, 248 In re KD (A Minor Ward) (Termination of Access), 52 In re O’Hara, 16 Intercountry abandonment, and, 184, 697 accredited bodies, and, 160, 188, 190, 191, 242, 312, 314, 321, 338, 511, 515, 594, 628, 629, 634, 636 adopters and, 91, 166, 208, 254, 319, 321, 382, 424, 426, 437, 473, 521, 564, 634, 673, 744, 791, 839, 840, 847, 879, 1007 adoption order and, 194, 332, 570, 607, 715, 846 agencies and, 84, 373, 374, 419, 469, 559, 594, 628, 629, 708, 785, 808, 833, 952 altruism, and, 165, 201, 358 Australia, and, 458 bilateral agreements, and, 205 birth parents, and, 165, 189, 378, 837, 841 Cambodia, and, 163, 186, 967, 996

1032 Canada, and, 411 Central Authorities, and, 160, 191, 627– 629, 636 children in need, and, 202 China, and, 825 citizenship, and, 211 colonialisation, and, 180 commercial intermediaries, and, 952 ‘commodification’ of children, and, 178 consents, and, 324, 395, 427, 429, 477, 566, 713, 843 cultural assimilation, and, 179 cultural links, promotion of, 75, 992 definition of, 158 denial, and, 184 elligibility issues, and, 74 England & Wales, and, 225 France, and, 585 general, 73, 77, 157, 159, 961 Germany, and, 622 global decline in, 200, 203, 995 Guatemala, and, 160, 161, 163, 177, 179, 180, 182, 186, 196, 200, 203, 206, 209, 300, 356, 377, 967, 996 history of, 200, 204 identifying information and, 195, 212 ideology, and, 168 immigration and, 170 Intercountry Adoption Act 2000 (U.S.) Intercountry Adoption Family Support Service (Aus), 487 Intercountry Adoption Technical Assistance Programme, 177, 182 Ireland, and, 339 Islam, and, 698 Japan, and, 773 Kafala, and, 159 Korea, and, 733 New Zealand, and, 505 openness, and, 167 orphans, and, 157 overseas, and, 161 phenomenon of, 157 policy constraints, and, 170 post-adoption support services and, 212 poverty, and, 168 profit motive and, 209 racial congruity, and, 208 receiving countries and, 169 religion, and, 169 Romania and, 660, 661, 666 Russia and, 863 Same sex couples, and, 196, 197

Index sending countries and, 203 simple adoption, and, 158, 194 strategic allegiances, and, 169 subsidiarity principle, and, 177 Sweden, and, 550 transracial, and, 180, 181 trends in, 199 UK and, 225 United Nations Convention on the Rights of the Child 1989, 174 U.S., and, 356 Vietnam, and, 170 welfare principle, and, 958, 1016 Intercountry Adoption Act, the, 2000 (U.S.), 353, 366, 367, 371, 374, 375 Intercountry Adoption Affairs Act the, 2005 (Swd), 555, 556, 568, 570 Intercountry Adoption Intermediation Act, the, 1997 (Swd), 556 Inter-Country Adoption New Zealand (ICANZ), 516, 522, 524, 533 Intercountry Legal Relations Concerning Adoption Act, the, 1971 (Swd), 555, 556 International Conventions general, 178 Islam, and, 705 International Social Services, 178, 200, 616, 629 International Social Services Japan (ISSJ), 773, 785, 791, 794, 800, 808, 809 ‘Internet twins’, 209, 237, 254 Interstate Compact for the Placement of Children, 387 In theMatter of Adoption of T.A.W. (US), 939 In the matter of N (Children) (Adoption: Jurisdiction), 988 Inuit contemporary adoption and, 906 customary adoption and, 909, 910, 912, 913 departmental adoption and, 907, 908 Inuit, 908 Nunavut, and, 905 Nunavut Law Review, 912 Commission, and, 912 placement of child and, 413, 908 private adoption and, 907 residential schools and, 407 ‘stolen generations’ of, 903 IOT v. B, 333 Ireland, 8, 9, 11, 25, 33, 36, 56, 86–88, 93, 96, 97, 109, 128, 130, 131, 137, 163,

Index

1033 166, 197, 217, 247, 281, 289–295, 297, 298, 300–307, 309–313, 315, 321, 324, 325, 327, 329, 331, 332, 335, 336, 340, 342–344, 403, 481, 498, 547, 653, 655, 692, 699, 726, 864, 924, 935, 949, 951, 952, 955– 957, 959, 960, 962–964, 966, 971, 974, 978, 980, 986–988, 1001, 1005, 1014

Islam blood-lines, and, 159, 694, 700 non-marital status, and, 700 step-parents, and, 699 IVF, 31, 45, 46, 78, 213, 220, 405, 449, 500, 501, 545, 580, 655, 695, 729, 857, 858, 959, 1015 Iye system, the, 761, 763 J J-F, 167 Johansen v. Norway, 67, 128, 131, 136, 138, 142, 148, 250 Johnson, K., 816, 821, 825, 826, 828, 830, 993 Johnson v. Calvert, 349 Jolie & Lebrun v. Belgium, 134 Judicial Council Act 2019, (Irl), 307 Juffer, F., 201, 656, 659 Jus sanguinis, 62 J v. C, 34 K Kafala definition of, 3 general, 691 requirements of, 711 K and T v. Finland, 67, 138, 142, 145, 148, 250, 272 Katoku, 763, 775 Katz, S., 18, 19, 60, 66, 181, 352, 379, 389 K A v. Finland, 138 Keagan v. Ireland, 29 Kearns v. France, 144, 579, 597, 605 Kelly, F., 290 Khazova, Olga, 854–856, 858, 861, 862, 888 Khylee Quince, v Kilkelly, U., 131, 134 Kim, J., 728, 991 Kinship Aboriginal, and, 909, 920, 923 adoption, within, 775 Australia, and, 461

Canada, and, 415 China, and, 821, 828 England & Wales, and, 228, 251, 262 France, and, 586 general, 678 Germany, and, 620, 624 Ireland, and, 297, 304 Islam, and, 697, 699 Japan, and, 770, 774 Korea, and, 730, 734, 755 M¯aori, and, 926, 930, 933 motive, for, 7–9 New Zealand, and, 506, 519 Romania, and, 662 Russia, and, 864 Sweden, and, 552 US, and, 359 Kjeldsen, Busk Madsen and Pedersen v. Denmark, 151 Koasuch’ulguk, 757 Korean Adoption Service (Kor), 724, 740, 741, 752–757 Korean war, 164, 169, 356, 724, 725, 733, 756 Korean Welfare Service (Kor), 745 Kosansky, O., 696 Koseki, 781, 805–807 Kroon v. The Netherlands, 145 Kruger v.Commonwealth, 917 Kunz, Diane, 350, 355, 370 Kupai Omasker, 924 Kutzner v. Germany, 124, 137, 138, 251 K. v. B., 435 K. v. France, 604 Kyusai Kyokai, 786

L Laming, L. J., 235 Laqeet, 696, 697, 701 Laurence Francoz-Terminal, 601, 602, 604, 607 Law 273/2004 (Rom), 666 Law 57/2016 (Rom), 665 Law for the Protection of Minors (China), 819, 829, 831 Lebbink v. The Netherlands, 132 ‘Legal orphans’, 258, 354 Legitimacy, 181, 184, 781, 987, 1014, 1016 Lehr v. Robertson, 379 Lineage general, 63 Islam, 690, 693, 694, 699, 700, 703

1034 Local authorities, 243 London Borough of Sutton v. M, 305 Long-term foster cares Australia, and, 492 Canada, and, 435 China, and, 811, 830, 839 England & Wales, and, 230, 231, 233, 277 France, and, 581, 588 Germany, and, 625 Ireland, and, 297, 299, 300, 307, 323 Islam, and, 710 Japan, and, 768 Korea, and, 737 New Zealand, and, 508 Romania, and, 665 Russia, and, 859 Sweden, and, 549, 554, 562, 572 U.S., and, 368, 389, 392 Lowe, N., 5, 18–20, 56, 60, 64, 66, 73, 410

M Mackieson, Penny, 459, 465, 467, 476, 483, 485 M¯aori of New Zealand blood-ties, and, 927 culture of, 926 customary adoption and, 927, 932 effects of statutory adoption, on, 909, 932, 941 parental rights, and, 933 population, 926 Waitangi, Treaty of, and, 925 Whangai, 932 Markin v. Russia, 141 Marriage and family breakdown Australia, and, 447 Canada, and, 402 China, and, 814 England & Wales, and, 219 France, and, 577 Germany, and, 616 Ireland, and, 292 Islam, and, 693 Japan, and, 764 Korea, and, 725 New Zealand, and, 496 Romania, and, 652 Russia, and, 854 Sweden, and, 543 U.S., and, 346 with consent, 256, 524

Index without consent, 256, 524 Marriage and family breakdown adoption, and, 218, 291, 346, 446, 577, 652, 725, 854 Marriage (Same Sex Couples) Act 2013 (E&W), 219, 252 Marshall, A. and McDonald, M., 446, 453, 458 Mason v. Mason, 452 Massachusetts Adoption of Children’s Act 1851 (U.S.), 360 Maternal choice, 39, 165 Mater semper certa est, 296, 656, 1010 Matsushima, Y., 761, 806 McD v. L, 296 McMichael v. United Kingdom, 136 Meiji era, 760 Menozzi, C. and Mirkin, B., 158, 166, 202, 986, 1003 Menski, W., 690, 692, 693, 697, 698, 710, 718, 722, 812 MG v. United Kingdom, 129 Middleton, N., 8 Mignot, J-F, 167 Mihonmosisˇol, 728 Mikulic v. Croatia, 126, 129, 145 Milotte, M., 163, 292, 301 Minamikata, Satoshi, 761, 764, 766, 774, 776, 780, 784, 789, 791, 799–801 Minhaj, 698 Ministry of Civil Affairs (China), 814, 816, 818–820, 825, 830, 835, 837, 847 Ministry of Health and Welfare (Korea), 730, 733, 740, 741, 745–748, 756 Mission de l’Adoption Internationale (Fr), 593 Mohammed Allahdad Khan v. Mohammad Ismail Khan, 691 Moretti and Benedetti v. Italy, 125, 133 Morris, R., 527, 760, 763 M.R. & Anor v. An tArd Chlaraitheoir, 296, 1010 Muhrim, 698, 716, 718, 721, 722 Muko yoshi, 763, 775 Multi Ethnic Placement Act 1994, 369 Munby P, 225, 981 Muntean, A., 656, 657, 659 Muslim Shiite, of, 695 Sunni, of, 695 Muslim Women’s Shura Council, 392, 701, 704, 706

Index M v. An Bord Uchtala and the Attorney General, 335 N NAHB v. An Bord Uchtála, 326, 329 NAPCRA (Rom), 656, 658, 666, 669, 671, 672 Napoleonic Code (Fr), 575 NARPDCA (Rom), 661, 669–671, 674, 683, 684 National Adoption Contact Preference Register, 339 National Adoption Record (Rom), 684 National Adoption Register, 232, 239 National Adoption Standards (E&W), 236, 239, 241, 274, 287 National Children Adoption Association, 32 National Council for Access to Personal Origins CNAOP (Fr), 593 National Minimum Principles in Adoption (Aus), 461, 464, 466, 473, 481, 920 National Minimum Standards (E&W), 236, 239 National Register for Adoptions (Rom), 671 Native Land Act 1909, 928 Nedescu v. Romania, 655 nés sous X, 578, 579 Neulinger and Shuruk v. Switzerland, 143, 147 New Brunswick (Minister of Health and Community Services) v. L. (M.), 416 New Zealand Law Commission, 522, 534, 537 New Zealand M¯aori Council v. Attorney General, 925 Non-marital births, rates of Australia and, 447 Canada, and, 402 China, and, 815 England & Wales, and, 244 France, and, 578 Germany, and, 616 Ireland, and, 292 Islam, and, 700 Japan, and, 765 Korea, and, 742 New Zealand, and, 501 Romania, and, 671 Russia, and, 855 Sweden, and, 544 U.S, and, 352 Northampton County Council v. ADF and MF, 304

1035 Northern Area Health Board v. An Bord Uchtála, 299, 306 N v. Health Service Executive, 299, 317 Nylund v. Finland, 131

O Obligation alimentaire, 609 Odievre v. France, 129, 144, 579, 588, 613 Ojedokun and Atoi, 210 Olson v. Sweden, 114, 115, 128 Ontario v. Marchand, 439 Open adoption Australia, and, 462 Canada, and, 417 China, and, 829 definition of, 44 England & Wales, and, 231 France, and, 579 Germany, and, 625 indigenous culture, and, 943 intercountry adoption and, 41, 368, 398, 454, 701 Inuit, and, 911 Ireland, and, 306, 331 Islam, and, 696, 699, 700, 705 Japan, and, 770, 776, 777, 785, 786, 796 Korea, and, 757 M¯aori, and, 928, 930 New Zealand, and, 508, 533, 536 practice of, 36, 44, 55, 721, 930 Romania, and, 664 Russia, and, 866, 871, 891 Sweden, and, 553, 573 trend towards, 44 US, and, 363, 364, 368, 392, 398 Oranga Tamariki (NZ), 501–503, 507, 509, 512, 514–525, 528, 529, 533, 535– 537, 929 Order/s available Australia, and, 482, 487, 492 Canada, and, 410 China, and, 828, 846 England & Wales, and, 218, 227, 261, 275, 277 France, and, 583, 608, 612 full or simple, 4, 956 Germany, and, 642 Ireland, and, 297, 307, 337 Islam, and, 716 Japan, and, 794, 795 Korea, and, 749, 750 New Zealand, and, 509

1036 plenary, 584, 608 Romania, and, 676 Russia, and, 855, 885 Sweden, and, 568 status implications of, 94–95 U.S., and, 387, 388 Orphan China, and, 814, 816, 818–820, 831, 834, 836, 841, 846 Islam, and, 691, 696, 698, 700, 701, 703, 704, 712–715, 717, 720, 722 orphan trains, 372, 978 Outcome of adoption process Australia, and, 481 Canada, and, 400, 434 China, and, 845 England & Wales, and, 266, 272 France, and, 607 Germany, and, 628, 642 indigenous culture, and, 943 Ireland, and, 290, 330 Islam, and, 715 Japan, and, 783, 801 Korea, and, 723, 749 M¯aori, and, 530–531 New Zealand, and, 530 Romania, and, 679 Russia, and, 885 Sweden, and, 568 U.S., and, 376, 391 Overseas adoption, 161, 171, 206, 209, 212, 213, 238, 464, 496, 515, 733, 734, 746, 747, 773

P Paradiso and Campanelli v. Italy, 127, 131, 132, 149, 150 Parens patriae Australia, and, 456 Parental Code (Swd), 541, 553, 554, 557, 560, 561, 563, 567–569, 571 Parental consent application with, 10, 19, 104, 323, 572, 593, 972, 974 application without, 41, 113, 157, 230, 260, 287, 553, 572, 824, 862, 988 dispensing with, authority for, 19, 32, 34, 92–94, 229, 236, 264, 265, 267, 325–327, 409, 713, 918, 955 grounds, 32, 34, 92–94, 257, 265, 267, 325–327, 377, 918, 955, 973 Parental culpability, 14, 15, 326, 327

Index Parental responsibilities, 13, 16, 20, 22, 27– 29, 31, 34–36, 44, 54, 58, 87, 88, 90, 107, 111, 116, 117, 136, 139, 176, 186, 194, 196, 221, 227, 228, 233, 237, 249, 256–258, 260, 262, 264, 265, 273, 275, 277, 279, 287, 316, 325, 326, 332, 334, 343, 409, 423, 448, 465, 474, 484, 492, 552, 554, 577, 595, 598, 601, 605, 619, 626, 645, 803, 855, 858, 859, 862, 864– 866, 868, 870, 875–877, 885–888, 973, 986 Parental rights, 6, 8, 10, 12, 14–16, 18, 27, 28, 33–36, 39, 44, 45, 58, 72, 76, 88, 99, 107, 123, 139, 140, 142, 145, 166, 204, 205, 220, 258, 260, 279, 288, 296, 297, 304–306, 316, 318, 320, 326, 328, 332–334, 336, 344, 354, 355, 361, 364, 368–371, 373, 375, 377–380, 386, 387, 391–393, 407, 409, 412, 421, 424, 430, 435, 450, 456, 500, 508, 537, 541, 549, 561, 564, 566, 581, 605, 609, 619, 626, 631, 632, 637, 639, 656, 658, 672, 676, 690, 691, 696, 706, 718, 721, 730, 738, 756, 767, 770, 776–778, 782, 788, 789, 793, 796, 801, 804, 819, 843, 844, 846, 858, 866, 872, 877, 883, 888, 906, 924, 933, 936, 938–940, 942, 955, 957, 966, 970, 972, 973, 988, 989, 1004, 1008, 1013, 1014, 1016 Parent and child, nexus of, 131 Parenting, failed, 51, 224, 743, 822, 943, 1014 Paris Principles, the, 115 Park, A., 730 Parrillo v. Italy, 127 Partnership with parents, principle of, 24, 52, 66, 68, 228 Pascoe, CJ., 50, 451 Patria potestas doctrine of, 12 Paulsen-Medalen and Svenson v. Sweden, 126 P, C and S v. UK, 67, 126, 148, 250 Pearl, D. and Menski, W., 722 Penal Code (Jpn), 581, 655, 765 Permanency, 52, 69, 83, 104, 113, 149, 176, 182, 183, 199, 213, 224, 262, 268, 273, 275, 350, 368, 369, 391, 392, 398, 417, 455, 463, 585, 911, 924, 944, 972, 986

Index Permanency planning, 52, 53, 67–72, 85, 177, 178, 230, 231, 368, 389, 417, 508, 1001 Pini and Others v. Romania, 125, 131, 143, 146, 151, 206, 679 Placement aboriginal, of, 920 adoption agency, and, 256, 324 Adoption Panel, and, 235, 255 Australia, and, 456, 457, 476, 477 birth parents, by, 256, 323, 427, 476, 523, 565, 603, 636, 675, 745, 792, 841, 881 Canada, and, 427 China, and, 841 decision by, 64, 92, 242, 322, 325, 386, 476, 552, 565, 626, 930, 944 England & Wales, and, 255 France, and, 603 Germany, and, 636 Inuit, and, 908 Ireland, and, 322 Islam, and, 712 Japan, and, 792 Kinship, and, 251, 257, 262, 289, 519, 620, 710 Korea, and, 745 M¯aori, and, 930 New Zealand, and, 523 non-aboriginal, of, 922 non-Inuit, and, 908 non-M¯aori, of, 927, 928 parents, by, 92 removal of child from, 273 review of, 121 rights and responsibilities of, 92, 255, 322, 385, 427, 476, 523, 565, 603, 636, 674, 712, 745, 792, 841, 881 Romania, and, 674 Russia, and, 881 supervision of, 83, 153, 174 Sweden, and, 565 the 2002 Act and, 25, 229, 249, 254, 255, 258 US, and, 385 Placement en vue d’adoption (Fr), 603 Politics child care adoption, and, 988 direct intervention, 951 domestic adoption, and, 821, 825, 830 influence of, ix, 945 intercountry adoption, and, 207, 953, 984, 990 same sex adopters, and, 987

1037 public service support, and, 961, 963 Poor Laws general, 15 Poor Law Act 1889 (E&W), 15 Poor Law Act 1930 (E&W), 15 poverty, and, 15 Popescu, R., 656, 659, 665, 672 Post-adoption support services Australia, and, 437 Canada, and, 394 China, and, 849 child care adoptions, and, 55, 89, 394, 962, 963 England & Wales, and, 280 France, and, 610 general, 963 Germany, and, 646 Indigenous context, and, 962–963 intercountry adoption, and, 89 Ireland, and, 336 Islam, and, 719 Japan, and, 805 Korea, and, 752 M¯aori, and, 533 New Zealand, and, 533 Romania, and, 682 Russia, and, 889 Sweden, and, 570 Poverty, 15, 73, 140, 157, 163, 165, 168, 184, 185, 187, 209, 218, 347, 353, 513, 542, 622, 651–653, 658, 659, 664, 672, 696, 697, 710, 723, 724, 735, 813, 819, 836, 855, 856, 879, 912, 969, 994 Pre-placement counselling Australia, and, 475 Canada, and, 426 China, and, 841 England & Wales, and, 254 France, and, 602 general, 90, 426 Germany, and, 635 Indigenous context, and, 401, 942, 944, 987, 1002 Ireland, and, 321 Islam, and, 712 Japan, and, 791 Korea, and, 744 New Zealand, and, 522 Romania, and, 674 Russia, and, 880 Sweden, and, 564 U.S., and, 385

1038 President Putin, 857, 869 Private family life, right to, 26, 39, 42, 62, 72, 82, 94, 102–104, 233, 236, 239, 267, 289, 417, 430, 435, 554, 625, 642, 679, 955–957, 971, 974, 975, 1004, 1014 Private law orders, 72, 94, 97, 1003 Procedure in Family Matters Act 2009 (Ger), 626, 642 Proportionality principle, 259 Public child care, 6, 15, 28, 53, 65, 103, 104, 123, 141, 166, 181, 182, 221, 231, 266, 287, 289, 291, 296, 344, 359, 386, 402, 408, 515, 549, 553, 572, 614, 649, 696, 701, 706, 708, 710, 721, 733, 767, 769, 788, 859, 862, 869, 961, 962, 971, 974, 988, 989, 1005, 1007 Pupilles de l’État (Fr), 582 Q Qiturngaqati, 910 Quartly, M., Swain, S. and Cuthbert, D., 445 Quilter v. Attorney-General, 497 Qur’an, the, 704, 706, 717 R Racine v. Woods, 401, 904 R and R:Children’s Wishes, 462 Rasmussen, K., 726 RC & PC v. An Bord Uchtála, & St Louise’s Adoption Society, 329 Re A, B and C, 265 Re Adoption of G, 501 Re Adoption of P, 500, 501, 508 Re Agar—Ellis, 13 Re An Application by T , 500 Re Application by AMM and KJO to adopt a child, 519 Re B (A Child)(Care Proceedings: Threshold Criteria), 225 Re B (A Child: Post-adoption contact), 275 Re B (Adoption: Natural Parent), 57, 60 Re B (Adoption Order), 225, 278–280 Re B-S (Children), 266 Re C and B (children) (care order; future harm), 224 Re Deborah, 906 Redmond, P., 292 Re DX (an infant), 35 Re Evelyn, 450 Re G (Children), 62, 270

Index Register of Foreign Adoptions, 333, 335, 339 Registrar/General Australia, and, 516 Canada, and, 470 China, and, 811 England & Wales, and, 245 France, and, 670 general, 245, 282, 283, 315, 338, 470, 516, 533, 560, 835 Germany, and, 615 Inuit, and, 910 Ireland, and, 314 Islam, and, 689 M¯aori, and, 516 Japan, and, 759 Korea, and, 723 New Zealand, and, 560 Romania, and, 651 Russia, and, 853 Sweden, and, 630 U.S., and, 377 Registration of Family Relations Law 2007 (Kor), 738 Regulating adoption adoption agencies, and, 64, 254, 255, 289, 468, 948 courts, and, 84 domestic, and, 289 Hague Convention, and, 289 intercountry, and, 289 mediating bodies, and, 82 Regulatory regimes for adoption Australia, and, 452 Canada, and, 400 China, and, 947 England & Wales, and, 975 France, and, 591 general, 948 Germany, and, 615 Ireland, and, 293 Islam, and, 689 Japan, and, 786 Korea, and, 723 New Zealand, and, 495 Romania, and, 651 Russia, and, 853 Sweden, and, 558 U.S., and, 377 Rehabilitation Australia, and, 958, 971 Canada, and, 423 China, and, 837 England & Wales, and, 53

Index France, and, 958 general, 958 Germany, and, 958 Ireland, and, 289 Islam, and, 689 Japan, and, 958 Korea, and, 724 M¯aori, and, 519 New Zealand, and, 496 Romania, and, 672 Russia, and, 854 Sweden, and, 958 U.S., and, 958 Re H (A Child) (Surrogacy Breakdown), 228 Re H (Contact Order), 229 Re-homing, 384, 969 Re H; Re G (Adoption: Consultation of Unmarried Fathers), 205, 264 Reinhardt, Jörg, 616 Re K (Adoption and Wardship), 75 Re L (Care: assessment: fair trial), 67 Religion birth parents rights, and, 981 evangelism, 981, 1001 politics, and, 653, 980, 981 Religious organisations, 301, 342, 381, 401, 915, 979, 980 Religious upbringing, 13, 35, 87, 88, 90, 91, 97, 269, 428, 479, 518, 525, 530–532, 637, 641, 698, 701, 715, 980, 981, 1006 Re M (Child’s Upbringing), 75 Re Michael: Surrogacy Arrangements, 450 Re M’P-P (Children), 230 Re NJA (Swd), 568 Re NL, 225 Re O’Hara, 13 Re P (Adoption: Leave Provisions), 259, 260, 265 Re Pierney and Hsieh (NZ), 522 Report of the Child Adoption Committee (the Tomlin report), 19 Report of the Committee on Child Adoption (the Hopkinson report), 19 Report of the Departmental Committee on the Adoption of Children (the Horsburgh report), 20, 21, 60, 64 Report of the Departmental Committee on the Adoption of Children (the Houghton report), 4, 42, 54, 65, 66 Report of the Departmental Committee on the Adoption of Children (the Hurst report), 4, 20, 21, 42, 54, 60, 64–66

1039 Representation, 28, 107, 126, 127, 153, 226, 236, 239, 240, 272, 274, 330, 361, 387, 390, 433, 478, 480, 481, 642, 679, 715, 749, 829, 874, 885, 902, 935, 953, 971, 1008 Representation for child Australia, and, 480 Canada, and, 433 China, and, 829 England & Wales, and, 226 France, and, 607 general, 95 Germany, and, 642 Ireland, and, 330 Islam, and, 715 Japan, and, 800 Korea, and, 749 New Zealand, and, 529 Romania, and, 679 Russia, and, 885 Sweden, and, 568 U.S., and, 390 Re R, 262 Re R (Adoption: Father’s Involvement), 262 Re R (Children), 266 Re S (A Child), 234 Residential care Australia, and, 453 Canada, and, 407 China, and, 820 England & Wales, and, 222 France, and, 582 general, 66, 70, 296 Germany, and, 620 Ireland, and, 297 Indigenous communities, and, 915 Islam, and, 696 Japan, and, 768 Korea, and, 731 New Zealand, and, 502 Romania, and, 657 Russia, and, 860 Sweden, and, 548, 860 U.S., and, 351 Residential schools Aboriginal people, and, 904 First Nations, Metis and Inuit, and, 407, 908 Ireland, legacy of, 343 Re T (A Child: adoption or special guardianship), 276 Re Tagornak, 906, 907 Re Valentine’s Settlement, 171

1040 Re W (A child), 228, 250, 251, 271, 273, 277, 987 Re W and B; Re W , 149, 224 Rice v. Miller, 450, 471 Rieme v. Sweden, 136 Rights children’s, 6, 37, 54, 116–118, 149, 150, 175, 197, 207, 413, 417, 544, 554, 567, 571, 661, 666, 776, 885, 955 information, 54, 58, 78, 98, 101, 338, 398, 462, 486, 488, 646, 759, 851, 954, 964, 966 mature minor, 91, 390 parental duties, and, 14, 332, 334, 387, 888 parties, 4, 11, 20, 28, 81, 147, 295, 296, 388, 389, 534, 781, 951, 953, 956, 964, 1007 paternal, 6, 8, 10, 12, 14–16, 18, 27, 28, 33–35, 39, 44, 45, 58, 72, 76, 88, 99, 107, 123, 139, 140, 142, 145, 166, 204, 205, 220, 258, 260, 279, 288, 296, 297, 304–306, 316, 318, 320, 326, 328, 332– 334, 336, 344, 354, 355, 361, 364, 368– 371, 373, 375, 377–380, 386, 387, 391– 393, 407, 409, 412, 421, 424, 430, 435, 450, 456, 500, 508, 537, 541, 549, 561, 564, 566, 581, 605, 609, 619, 626, 631, 632, 637, 639, 656, 658, 672, 676, 690, 691, 696, 706, 718, 721, 730, 738, 756, 767, 770, 776–778, 782, 788, 789, 793, 796, 801, 804, 819, 843, 844, 846, 858, 866, 872, 877, 883, 888, 906, 924, 933, 936, 938–940, 942, 955, 957, 966, 970, 972, 973, 988, 989, 1004, 1008, 1013, 1014, 1016 Robbins, J., 163, 291 Roe v. Wade, 348, 856 Romanian Office for Adoption (ORA), 666, 669 Roman law, 763, 978 Roma, the, 661, 662 Roos, H., 210, 912 Rose v. Secretary of State for Health and Human Fertilisation and Embryology Authority, 282 Rotabi, K.S. and Bromfield, N.S., 999, 1001 Rowe and Lambert, 32 R v. Finland, 142, 143 R. v. Morgentaler, 404 R v. United Kingdom, 127, 145 Ryburn, M., 930 Ryznar, M., 999

Index S Safe Haven laws, 348, 367 Sahin v. Germany; Sommerfield v. Germany; Hoffman v. Germany, 136, 145 Salgueiro da Silva Mouta v. Portugal, 134, 136 Salvage, Pascale, 582, 587, 590, 594, 596 Same sex adopters Australia, and, 474 Canada, and, 426 China, and, 840 England & Wales, and, 252 France, and, 602 general, 48 Germany, and, 635 Ireland, and, 319 Islam, and, 702 Japan, and, 791 Korea, and, 744 New Zealand, and, 522 research findings relating to, 48 Romania, and, 674 Russia, and, 880 Sweden, and, 564 U.S., and, 363 Sandeep and Reena Mander v. RBWM Adoption Berkshire, 227 Santosky v. Kramer, 354, 378, 386, 390 Satoshi Minamikata, 774, 791, 799, 800 Saviny v. Ukraine, 124 SB v. A County Council; Re P, 230, 258, 273 Scherman, R., 982 Schiratzki, J., 544, 553, 554, 567, 571 Schweppe, K., 619 Selman, P., 200, 203, 204, 226, 374, 454, 551, 585, 660, 661, 826, 840, 992, 994, 995 Selman, P. and Mason, J., 454 Shari’ah law, 6, 213, 669, 690, 692, 696, 698, 704, 706–708, 712, 713, 715, 719 Shinto, 761, 762 Silberman, 181 Silk, J., 943 Singer, A., 543, 546, 552, 562, 568 Small Business and Job Protection Act 1996 (U.S.), 369 S.M. (Re)(Can), 425 Sobol, M., and Daly, K., 409 Social Code, 8th Book (Ger), 619, 626 Social impact bonds, 224 Social orphans, 855, 859, 862, 872

Index Social Services Act 2001 (Swd), 555, 559, 563, 565, 568 Social Welfare and Family Code (Fr), 595, 596, 598 Social Welfare Committee, (Swd), 555, 556, 558, 559, 563–566, 570 Social Welfare Institutes (China), 812, 819, 830, 831, 833–836, 842, 843 Soderback v. Sweden, 61, 136, 254 Southwark LBC v. St Brice, 151 Special Adoption Law 2012 (Kor), 737 Special Cases Concerning Adoption Promotion and Procedures (Kor), 733, 738 Special Guardianship Order, 42, 61, 72, 233, 236, 253, 275–277, 281, 288, 503, 508, 986 Special needs Australia and, 455, 457, 492 Canada, and, 407, 411 children with, 38, 45, 78, 89, 202, 225, 300, 355, 367, 370, 411, 455, 457, 492, 505, 550, 585, 660, 701, 733, 773, 777, 825, 827, 866, 873, 962 China, and, 825–827, 840, 849, 962, 984 England & Wales, and, 225 France, and, 583, 585 general, 49 Germany, and, 628 Ireland, and, 300 Islam, and, 696, 701 Japan, and, 773 Korea, and, 733 New Zealand, and, 505, 533, 664 Romania, and, 660 Russia, and, 866, 873 sweden, and, 550 U.S., and, 355, 358, 361, 367, 370, 383, 394 Sporer v. Austria, 137 Stacey, J. and Biblarz, T., 48 Stanley v. Illinois, 360, 379 State Children’s Relief Act 1881 (Aus), 453 Status effect of adoption on, 750, 756, 847 Japanese society, and, 761 marital, Ireland and, 89, 247, 321, 326 public, the US, and, 346 requirements for adoption, 596 Victorian, 14 Statute n° 2016-297 (Fr), 588 Stenberg v. Cahart, 348 Step-adoptions Australia, and, 986

1041 Canada, and, 986 China, and, 986 England & Wales, and, 986 France, and, 986 general, 938, 958 Germany, and, 986 Ireland, and, 986, 1005 Islam, and, 986 Japan, and, 774 Korea, and, 1005 New Zealand, and, 506 Romania, and, 662 Russia, and, 864 Sweden, and, 549, 986 U.S., and, 986 ‘Stolen generations’, 459, 897, 903, 904, 916, 979 Succession Tax Act 2018 (Jpn), 804 Suitability of adopters Australia, and, 472 Canada, and, 400, 424 China, and, 838 England & Wales, and, 252 France, and, 599 general, 88 Germany, and, 318, 633 Ireland, and, 318–321 Islam, and, 711 Japan, and, 790 Korea, and, 743 M¯aori, and, 519 New Zealand, and, 519 Romania, and, 673 Russia, and, 878 Sweden, and, 562 U.S., and, 380 Sunnah, the, 689, 704 Surrogacy altruism, and, 358, 449–452 Australia, and, 445 Canada, and, 405 China, and, 818 commercial, 50, 182, 220, 358, 405, 449– 452, 500, 656, 950, 959, 960, 962, 977, 987, 996–999, 1001, 1006, 1010, 1014, 1015 England & Wales, and, 220 France, and, 580 gay couples, and, 501, 1001 general, 858 Germany, and, 618 Ireland, and, 295 Islam, and, 695

1042 Japan, and, 766 Korea, and, 729 New Zealand, and, 500 Romania, and, 656 Russia, and, 857 Sweden, and, 546 U.S., and, 349 Swedish Intercountry Adoptions Authority (MIA), 555, 572

T Taboo, 54, 82, 185, 305, 723, 727, 770, 771, 824, 917 Templeman LJ, 52, 250 Temple v. Barr and Holborn, 931 Terre des Hommes, 589, 592, 594, 622, 623, 629, 653, 654 Te Ture Whenua M¯aori Act 1993 (NZ), 928, 929, 934 The State (Nicolaou) v. An Bord Uchtála, 304 Third party adoptions Australia, and, 455 Canada, and, 409 China, and, 822 England & Wales, and, 223 France, and, 584 general, 6 Germany, and, 621 Ireland, and, 298 Islam, and, 697 Japan, and, 771 Korea, and, 731 M¯aori, and, 503 New Zealand, and, 503 Romania, and, 659 Russia, and, 861 Sweden, and, 545 U.S., and, 353 Third Reich, the adoption, and, 616, 622, 639 Thresholds for entering adoption process Australia, and, 470 Canada, and, 400, 421 China, and, 836 England & Wales, and, 246 France, and, 595 general, 85 Germany, and, 630 Ireland, and, 315 Islam, and, 709 Japan, and, 787

Index Korea, and, 742 New zealand, and, 517 Romania, and, 670 Russia, and, 875 Sweden, and, 561 U.S., and, 377 Thresholds for exiting adoption process Australia, and, 479 Canada, and, 400, 430 China, and, 843 England & Wales, and, 267 France, and, 606 general, 95 Germany, and, 640 Ireland, and, 328 Islam, and, 714 Japan, and, 748, 798 Korea, and, 748 New Zealand, and, 527 Romania, and, 678 Russia, and, 884 Sweden, and, 567 U.S., and, 389 Tiguaq, 913 Tizard, B., 9, 47, 74 Tokubetsu yoshito-suru, 801, 806 Tomlin Committee, 4, 19 Topˇci´c-Rosenberg v. Croatia, 140, 152 Tracing and re-unification services Australia, and, 491 Canada, and, 442 China, and, 851 England & Wales, and, 284 France, and, 613 general, 102 Germany, and, 648 Ireland, and, 340 Islam, and, 720 Japan, and, 808 Korea, and, 755 New Zealand, and, 536 Romania, and, 684 Russia, and, 891 services of, 101, 102, 284, 310, 337, 340, 396, 442, 491, 536, 571, 572, 613, 648, 651, 684, 720, 755, 805, 808, 850, 851, 853, 891, 1015 Sweden, and, 572 U.S., and, 396 Trafficking China, within, 814, 820, 821, 1001 Haiti, and, 1000 Russia, and, 856

Index Vietnam, and, 967, 1001 Transracial, 38, 46, 47, 74, 78, 120, 164, 180, 181, 184, 226, 246, 302, 353, 361, 381, 390, 398, 401, 413, 414, 438, 459, 505, 506, 551, 586, 623, 661, 702, 728, 734, 774, 827, 864, 897, 916, 990, 991 Triseliotis, J., 44, 53, 178, 179, 181, 204, 306 Turner, J.N., 448, 460, 462, 466, 470

U U.N. Human Rights Council, 175 Uniform Adoption Act, the, 1994 (U.S.), 369, 394 Uniform Child Status Act 2010 (Can), 405 United Nations Convention on the Rights of Indigenous Peoples Article 7, of, 901 Article 8, of, 901 Article 20, of, 901 Article 34, of, 902 general, 901 United Nations Convention on the Rights of the Child 1989 Article 2, of, 118 Article 3, of, 119 Article 7, of, 119 Article 9, of, 119 Article 11, of, 174 Article 12, of, 119 Article 13 and 14, of, 120 Article 18, of, 120 Article 20, of, 120 Article 21, of, 121 Article 25, of, 121 Article 27, of, 121 Article 35, of, 122 Articles 44 and 45, of, 122 Australia, and, 463 Canada, and, 416 China, and, 829 England & Wales, and, 249, 278 France, and, 577 general, 109 Germany, and, 624, 637, 641 Ireland, and, 309 Islam, and, 721 Japan, and, 776 Korea, and, 729 New Zealand, and, 513 Preamble, to, 118, 174, 189, 900 Romania, and, 678, 679

1043 Russia, and, 865, 868, 871, 892 Sweden, and, 558, 571 U.K. report to Committee of, 240 U.S., and, 371 United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986, 109 United Nations Guidelines for the Alternative Care of Children, 113, 175, 198 Universal Islamic Declaration of Human Rights, 707 Unmarried fathers Australia, and, 472 Canada, and, 422 China, and, 815 England & Wales, and, 249 France, and, 598 general, 88 Germany, and, 631 Ireland, and, 317 Islam, and, 700 Japan, and, 789 Korea, and, 743 New Zealand, and, 518 Romania, and, 672 Russia, and, 876 Sweden, and, 544, 545 U.S., and, 378 Unmarried mothers Australia, and, 447, 471 Canada, and, 403, 422, 443 China, and, 815 England & Wales, and, 219, 249, 264 France, and, 578, 597 general, 88 Germany, and, 617, 631, 632 Ireland, and, 292, 293, 298, 300, 301, 305, 311, 316, 317, 323, 325 Islam, and, 694 Japan, and, 765, 789, 796 Korea, and, 726, 729, 736, 738, 743, 745 New Zealand, and, 498, 499, 518 Romania, and, 653, 658, 672 Russia, and, 855, 875 Sweden, and, 544 U.S., and, 346–348, 378, 379 U.N. Permanent Forum on Indigenous Issues, 900 Unreasonableness, test of, 34

1044 UN Special Rapporteur, 112 Uzbyakov v. Russia, 876

V Van de Perre v. Edwards, 414 V.D. v. Russia, 877 Venema v. The Netherlands, 148 Venice Commission, 111 Vernier, N., 43 Vertrauliche Geburt, 617, 639, 646 Voice of the child Australia, and, 480 Canada, and, 432 China, and, 845 England & Wales, and, 272 France, and, 607 Germany, and, 641 Ireland, and, 329 Islam, and, 714 Japan, and, 800 Korea, and, 749 New Zealand, and, 529 Romania, and, 679 Russia, and, 884 Sweden, and, 568 U.S., and, 390 Voluntary adoption societies Australia, and, 457 Canada, and, 419 China, and, 824, 832, 841, 843 England & Wales, and, 242 France, and, 611 general, 65 Germany, and, 629 Ireland, and, 312 Islam, and, 700 Japan, and, 791, 793 Korea, and, 742 New Zealand, and, 515 Romania, and, 672 Russia, and, 860 Sweden, and, 544, 564 U.S., and, 373 V.S. v. Germany, 144

W Waitangi, Treaty of, 507, 925, 926, 933, 934 Wall, LJ, 39, 75, 229, 230, 258, 265, 273, 276 Wang, L., 816, 824, 829

Index Wardship, 33, 34, 75, 104, 105, 116, 126, 279, 326, 331, 343, 407, 409, 410, 424, 432, 435, 456, 974 Wards of the state Australia, of, 457 Canada, of, 402, 407 France, of, 582–585, 589, 593, 595, 604, 607 Japan, of, 770 Ward v. Laverty, 410 War orphans, 18, 760 Waterhouse report, 23, 53, 222 Welfare benefits, 51, 152, 165, 170, 249, 293, 401, 448, 498, 548, 550, 577, 578, 588, 726, 744, 815, 958, 985 Welfare of Children Act (Jpn), 767 Welfare of the child Adoption and Children Act 2002 (E&W), and, 236 adoption order, and, 32, 33, 36, 55, 81, 253, 328, 432 Australia, and, 450, 465, 474, 478, 482 blood-link, and, 62, 329 bonding, and, 151, 329, 904 Canada, and, 410, 432 checklist, and, 22, 31, 229, 244, 257, 258, 261, 263, 267, 269, 799 child’s views, and, 431 China, and, 849 England & Wales, and, 237, 245, 247, 248, 253, 256, 258, 265–267 expert witnesses, and, 95, 272 France, and, 580, 604 functions of, 81 general, 147 Germany, and, 640, 645 intercountry adoptions, and, 171, 173, 182, 189, 190, 202, 206, 213, 214 Inuit, and, 902 Ireland, and, 299, 305, 315, 324, 328 Islam, and, 711 Japan, and, 780, 849 Korea, and, 736, 746 lifelong, 22, 190, 260, 971, 992 M¯aori, and, 930 matters constituting, 95, 390 motive, as, 9 negative application of, 39 New Zealand, and, 516 paramountcy of, 145 principle of, 81, 305, 640, 1010 racial matching, and, 35, 87, 88, 226, 269, 352, 428, 518, 525, 530, 532

Index religious upbringing, and, 479 Romania, and, 677 Russia, and, 884, 885 social engineering, and, 33, 248 Sweden, and, 551 throughout childhood, 328 UN CROC, and, 528 U.S., and, 350, 355, 358, 360–363, 366– 369, 373, 376, 379, 381–384, 386–390, 394, 397 weighting given to, 96 Welfare threshold, 83, 247, 315, 421, 517, 596, 630, 710, 788, 837 Whangai, 932 Williams v. Hillier et al., 432 Wolf, K., 620, 633 Woodhouse, B., 362, 368, 370 W v. United Kingdom, 115, 127, 128 X X and Others v. Austria, 105, 135, 136 X v. Belgium and The Netherlands, 151

1045 X v. Netherlands, 128 X, Y and Z v. United Kingdom, 132

Y Yateem, 696, 697, 701 YC v. United Kingdom, 143, 259 Yojo, 764 Yoshi futsu yoshi, 780 general, 761 muko yoshi, 763, 775 tokubetsu yoshi, 780 Yousef v. The Netherlands, 145

Z Zaunegger v. Germany, 137, 632 Z County Council v. R, 29 Zhang, W., 822, 828 Zhong, J., 822, 828, 849 Z.M. and K.P. v. Slovakia (E&W), 126