Adoption and the rights of children in the UK

The International Journal of Children’s Rights 10: 269–289, 2002. © 2002 Kluwer Law International. Printed in the Netherlands. 269 Adoption and the rights of children in the UK PENELOPE WELBOURNE Department of Social Work, University of Plymouth Introduction Adoption, particularly adoption from local authority care, entails giving a child a new family. It also usually entails taking away the child’s birth family, to a greater or lesser extent. It therefore has clear implications for children’s rights to family life under human rights legislation. This paper is an evaluation of the extent to which ideas of rights are currently incorporated into decision-making with respect to adopted children, with particular reference to the European Convention on Human Rights (ECHR) and the Human Rights Act 1998. ‘Identity’ as a basis for right to family contact and information is discussed in the context of the 1989 United Nations Convention on the Rights of the Child (UNCRC). After a long period of stasis, the legislation in respect of adoption is undergoing statutory revision (Cabinet Office, 2000; Adoption and Children Bill, 2001) supported by extensive practice guidance (DOH, 2001a–d). An awareness of the continuing significance of birth family for adopted children is evident in the new legislation and guidance; however it is argued that this is within the conceptual framework of ‘welfare’ rather than individual rights of children. Judicial decisions now include much relevant rights-based reasoning regarding adult entitlement to invoke rights under Article 8 of the European Convention on Human Rights (ECHR). Mitchell (2001): such reasoning may equally be applied to children in adoption cases (Article 8 ECHR states that, “Everyone has a right to his private and family life . . . There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society . . . for the protection of health or morals, or for the protection of the rights and freedoms of others”). The profile of children likely to be adopted is changing, too. Current Government policy includes an increase in the rate of adoption of children from ‘care’ by up to 50 per cent (DOH, 2001). Implementation of this policy is likely to increase the proportion of adopted children who are older, with 270 PENELOPE WELBOURNE enduring memories of established, if problematic, relationships with birth families. A policy emphasis on keeping sibling groups together (DOH, 2001a) raises the possibility that more adopted children who are members of a sibling group will grow up together who may retain a sense of continuing membership of their birth family. The probability that many siblings will still be separated by adoption also raises the issue of how the Article 8 rights of this group of children should be construed and protected. The new guidance incorporates a commitment to respecting and protecting children’s former relationships and cultural identity (DOH, 2001a, pp. A8, A9, B1–11). All non-family adoptions involve a discontinuity of relationships and a redefinition of identity in the context of a new family. This raises the question how far rights as well as ideas about welfare should influence critical planning decisions about contact with and information about birth families. Research is beginning to provide an empirical basis for decision-making about adopted children’s welfare interests. The issues are complex, but some research suggests that the traditional welfare-based approach created, or at least failed to solve, longstanding issues for many adults: the needs of adopted children are more complex than simply the establishment of a new ‘legal family’ (examples include Howe et al., 2000; Mullender, 1999; Quinton et al., 1997). This article examines the basis for an approach more grounded in children’s rights. Eekelaar proposed that when children are unable to express their views or make considered decisions by reason of immaturity, adults should make decisions for them on the basis that options should be kept open as far as possible against the time when the child is able to exercise choice (Eekelaar, 1994). In the case of adoption this could be achieved by protecting direct access to birth family, heritage and culture unless to do so would compromise one or more of the child’s other rights, such as the right to family life with the adoptive family, or protection from avoidable harm. Whilst adoption is about the provision of ‘loving families’, to use the Government’s emotive phrase (DOH, 2001a, section A8), it is also a legally defined and constructed method of supporting durable relationships, often between people who were until recently strangers. The legal implications for children include gaining a whole new family, and may include losing their original, problematic, family. The extent to which the birth family is lost to the child will vary, according to the age and circumstances of the child. This article is an attempt to identify some of the ‘rights’ issues for adopted children. ADOPTION AND THE RIGHTS OF CHILDREN IN THE UK 271 The problem of the ‘welfare principle’ and children’s rights The principle that underpins decision-making in English law in respect of children is that the welfare of the child is paramount: the Children Act 1989 s.1(1) states, “When a court determines any question with respect to (a) the upbringing of a child: or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.” In adoption cases, the interests of the child currently have priority, and will become paramount when the Adoption and Children Bill 2001 is enacted. However, the principle is not always straightforward to apply. Examples of this are cases in which the interests of one child is in apparent conflict with the interests of other children such as siblings, or parents who are children themselves. In the 1994 Birmingham City Council case (Birmingham City Council v. H [1994] 2 WLR 31) the Court of Appeal considered that the interests of a mother under the age of majority and those of her baby should be weighed in the balance in an ‘evenly balanced pair of scales’. The House of Lords rejected this reasoning in favour of identifying one of the children, the baby, as the individual whose welfare interests should be paramount on the basis that it was the baby who was the subject of the proceedings. However, it has also been argued that the House of Lords did in fact perform a balancing exercise, despite holding that it was not necessary (Douglas, 1994). In the case of S (Re S (Contact: Application by sibling) [1999] 3 WLR 504), an application for contact with an adopted sibling by an adopted child, again, the needs of only one child could be paramount. Decisions may therefore be made based upon procedural considerations rather than a broader concept of justice or fairness: the welfare principle offers no means of balancing the interests of the different children involved. Cases such as these strain the limits of the welfare principle as a basis for decision-making. Bainham (1995) questions the justifiability and rationality of the ‘best interests’ principle as applied by the courts, suggesting that the real reason for judicial decisions in respect of whose interests should prevail in particular cases reflects ‘conscious policy preferences’ rather than decisions based on statute. As a principle on which to base cases involving competing interests of more than one child, the welfare principle is problematic. Further, it may not accord easily with children’s rights. Sclater and Piper comment, Despite the centrality of the welfare principle, however, it has been seen as a ‘concept in search of a meaning’ with no clear and specific content. Its meaning . . . is fluid, indeterminate, value-laden and can, potentially, provide a convenient cloak for ‘bias, paternalism and capricious decision-making’. The indeterminacy of the [principle] also helps 272 PENELOPE WELBOURNE to avoid the need to draft more unambiguous – but politically contentious – statutory provisions. It is perhaps not surprising, then, that there has been comparatively little professional or political will to make the ‘content’ of the best interests principle more concrete. (Sclater and Piper, 2001, p. 411) There are judicial reflections of this awareness that decisions about children’s best interests are inherently subjective, being based on analysis of the “. . . uncertainties involved in what, after all, is an attempt to peer into the future . . .” “(c)ses relating to children tend to be towards the edge of the spectrum [of vagueness of standards to be applied by the law] where an appellate court is particularly reluctant to interfere with the judge’s decision” (Lord Nicholls of Birkenhead in Re S and others: Re W and others 2002 2 All ER 192 [2002] paras. 16 and 19). Piper (2000) argues that “(t) current, untheorised approach to family justice has led to an uncritical over-reliance on assumptions about the child’s best interests, not just by legal professionals but also by ‘welfare’ professionals operating within the family and youth justice systems.” Theories about children’s best interests imported from disciplines external to law become part of ‘the law’, a system to which non-lawyers such as social workers contribute. The problematic nature of the concept of ‘welfare’ would indicate a need to be very cautious in taking decisions that might violate any of the child’s rights in the interests of achieving a goal defined purely in terms of welfare. If there are professional and political reasons for preferring a welfare rather than rights-based approach to decision-making in respect of children, Smith (1997) argues a wider social resistance to a rights-based approach: [E]ven the most convincing evidence about children’s competence to decide and even the most thorough philosophical challenge to presumptions about capacity and autonomy, will not achieve fundamental changes in the way the law thinks about children . . . change will not go so far as to reject a legal distinction between children and adults or allow that rights will take precedence over welfare, for the law itself only reflects and confirms a particular social construction of childhood. No wonder we bump into children’s best interests at every turn – adults simply cannot manage without them. (Smith, 1997, p. 136) In the case of adoption, if courts were to apply a more rights-based approach to decision-making in respect of children, this would impact on the decisionmaking freedom currently enjoyed by adults, including adoptive parents. If, as has been suggested, the phrase, ‘this case turns on its own particular facts’ is a common adjunct to decisions in children’s cases, this may reflect the welfare principle’s indeterminacy about how the ‘best interests’ ADOPTION AND THE RIGHTS OF CHILDREN IN THE UK 273 of a child are to be identified (Sclater and Piper, 2001, p. 411). It is also an impediment to developing consistency and fairness in decision making, because case-specific decision making does not readily generate general principles. We need a high degree of confidence in our ability to make accurate predictions about outcomes for children to justify terminating relationships that are significant for children that would be the subject of legal protection under any circumstances other than adoption. Recognising that a significant minority of adoptions, particularly of older children, may fail, a more rightsbased approach to continuity of relationships would seem more appropriate for children considered for adoption. It would also be consistent with Article 8 of the European Convention on Human Rights 1998, discussed below. The presumption that children have a right to have significant family relationships protected, in the absence of evidence that the resulting continuity of birth family relationships would be likely to be harmful for the child and his or her new relationships, would be a protection for children against having their family life interfered with by the state in a way that is disproportionate to the needs of the child for protection from harm. Casey and Gibberd (2001) express the view that “orders allowing the local authority to terminate contact are being made prematurely, when the emphasis is on child protection and short-term planning for the child. The long term needs of the child in terms of contact with the birth family are not prioritised at that stage.” They argue that introduction of an obligation to apply the welfare principle in adoption cases when considering contact ‘should bring to an end the current practice of allowing the views of prospective adopters to determine whether contact takes place or not.’ These observations appear to be based on professional experience rather than random sampling of cases, but if there is validity to these concerns in even a minority of cases, this gives grounds for concern. An alternative approach would be to terminate contact only when, taking all the circumstances into consideration, including the child’s wishes, there is evidence that contact would be likely to be damaging and/or unwelcome for the child, outweighing any potential benefit for the child. This would effectively change the level of evidence required from ‘balance of probability’ in relation to the child’s future welfare, to an onus on those who support termination of contact to demonstrate how termination is necessary, proportionate, and in the best interests of the child. Children’s rights to contact: The European convention on human rights (ECHR) and the Children Act 1989 Contact with parents is a right of children as well as parents (Children Act 1989 s.34(1), Article 8 European Convention on Human Rights Act, K. and 274 PENELOPE WELBOURNE T. v. Finland ECHR 12/07/01). The end of legal parenthood through the termination of parental responsibility (PR) in adoption represents the end of birth parents’ right to contact, although parents who never had PR cannot, of course, have it extinguished. Children who had rights to contact with members of their birth family prior to the extinction of birth parents’ PR (Beckett and Hershman, 2001) have those rights regarded as if extinguished by the making of the adoption order and the end of birth parents’ parental responsibility. S. 39(2) 1976 Adoption Act states that adopted children are not to be treated as the children of anyone other than the adoptive parent(s); the Adoption and Children Bill 2001 s.4(c) describes the child as ‘ceasing to be a member of their original family’. Having contact with someone is not the same as being treated as their child, or being a part of their family. Through the acquisition of parental responsibility, adoptive parents gain the right to determine who the child sees and what the child knows about their history and heritage before adoption (Re S (Contact: Application by Sibling) [1999] 3 WLR 504). If, based on Article 8 ECHR, children have a right to ‘family life’ that includes contact that is neither injurious nor unwelcome with birth parents, siblings, etc., prior to the extinction of birth parents’ parental responsibility, what happens to those rights on adoption? Since they are not explicitly taken away by the court when birth parents’ parental responsibility ends, they might reasonably be seen as persisting after the adoption order is made, independent of the loss of birth parents’ rights. If children and birth parents have rights in respect of contact with each other that are independent of the possession of parental responsibility, as appears to be the case, children’s rights arguably persist even if the parents’ rights end at the point of adoption. In adoption, a case will have been made for ending the parents’ rights, frequently related to parental fault and significant harm to the child. The same is self-evidently not true for the children, whose family relationships may include non-abusive, positive ones. Working from the basis that children have a prima facie right to the maintenance of links with their birth family and culture would represent a significant shift in emphasis from present and planned legislation and policy. The current position in the UK places the child’s welfare at the heart of the decision-making process, which theoretically safeguards the child from the prioritisation of other interests, such as those of adopters, birth parents, or the State, over the child’s welfare (see for example, Gilmore, 2001; Davis and Pearce, 1999; King, 1987). The presumption that the child has a right to the preservation of such links as would be non-injurious to the child would not be incompatible with protection of the child’s welfare interests, but would oblige those involved in decision-making on behalf of the child to be clear about the reason for ending relationships that were significant for the child prior ADOPTION AND THE RIGHTS OF CHILDREN IN THE UK 275 to adoption. This approach also has potential implications for non-adopted children in the community and care system. For example, it would indicate revision of s.34(1) of the Children Act 1989, which states that when a child is looked after by a local authority, it is the duty of the authority to allow the child reasonable contact with his or her parents, guardian or person or anyone who had care of the child by virtue of a court order immediately before the child came in to care: other family members are not mentioned. The level of protection offered to parents and children in respect of contact appears to vary according to context. For children in care, the standard is ‘reasonable contact’, although case law has effectively modified s.34 Children Act to make it more consistent with Article 8 ECHR: parents’ and children’s rights to contact are only to be interfered with when the overriding necessity of the interests of the child justify this (Re C and B (Children) [2001] 1 FLR 611). In civil proceedings under the Children Act 1989, the test as to whether or not contact with non-resident parents should be protected by a court order was defined as, ‘whether the fundamental need of every child to have an enduring relationship with both his parents (s1(3)(b)) is outweighed by the depth of harm which, in the light, inter alia, of his wishes and feelings (s1(3)(a)), this child could be at risk of suffering (s1(3)(e)) by virtue of a contact order’ (Re M (Contact: Welfare Test) [1995] 1 FLR 274). The Charter of Fundamental Rights of the European Union (‘the Charter’) is due to be ratified by the UK in 2002. It is binding on the Member States when they act in the context of Community law (The Wachauf Case 5/88 [1989] ECR 2609 18 June 1991) and is binding on Member States when implementing Community rules (Charter of Fundamental Rights of the European Union, Article 51). Article 24(3) of the Charter states that, “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.” As with civil law contact decisions in the UK, what is protected is a level of contact of that can support a personal relationship. Charter rights cannot exceed the rights that would be extended to citizens in their own state (Baumbast and R [2001] (Advocate General’s Opinion) Case C-413/99 para. 80). It is therefore of some interest that the Charter right of children to continuing contact with parents sufficient to maintain a personal relationship seems to go further, with greater specificity than the Children Act 1989 s.34 duty on local authorities in respect of contact for children in care. Herring (1999) explored the issue of the difference between an approach based on parental rights derived from Article 8 of the ECHR versus one based on the Children Act 1989 ‘welfare principle’. In the context of contact with children looked after by the local authority, he argues that, 276 PENELOPE WELBOURNE In a case based on the Convention, concerning, say, denying a parent access to a child, the starting point is the parent’s right to contact. In order to justify a breach there must be clear and convincing evidence that the contact would infringe the rights and interests of the child to such an extent as to make the infringement necessary and proportionate. However an approach based on the Children Act’s welfare principle might start with a factual presumption that the welfare of the child is promoted by contact with parents, but this could be rebutted by the evidence that the welfare is not thus enhanced in the particular case. In adoption cases the same argument might be held to apply: contact with anyone who is a parent or other significant member of the child’s family should be protected (possibly to the extent that a meaningful relationship is possible) unless there is evidence that to protect it would jeopardise other rights of the child, thus making the infringement of the child’s rights necessary and proportionate. Vine (2000) analyses case material and concludes that the margin of appreciation that the Convention allows member states permits them to give paramountcy to children’s best interests, and that this requirement is consistent with Convention case-law. This does not of course mean that children’s Convention rights may be disregarded in the interests of ‘welfare’, which, if Casey and Gibberd (2001) are right, appears to be the case in at least some adoption cases. There would seem to be a pressing need for clarification regarding the status of children’s Article 8 rights following adoption, and the basis on which those rights may be infringed. Two critical issues: Parenthood and proportionality These two issues are dealt with separately since they are critical to any interpretation of children’s Article 8 rights. Unless a biological parent is a parent for the purposes of the court, the child may have difficulty claiming Article 8 rights in respect of that person. Once it is established that a person, whether adult or child, has Article 8 rights the question becomes whether they should be protected, how far they may be limited. and according to what principles. (i) Adopted children and parenthood In relation to adopted children, an issue that is of critical significance in determining the applicability of Article 8 ECHR is the most reasonable interpretation of the term ‘parent’. Once a child has been adopted the birth parents of that child cease to have PR for him or her. They do not of course cease to be parents in the biological sense, nor in the more inclusive common ADOPTION AND THE RIGHTS OF CHILDREN IN THE UK 277 use of the term ‘parent’. The terms ‘birth parents’ and ‘natural parent’ are commonly used to describe the relationship between adopted children and their biological parents. Biological parenthood, PR, and fulfilling a parental role in relation to a child are elements that interact in determining parental status and adult rights in respect of children (Eekelaar, 2001). Even in the extreme case of fathers who are unaware of the existence of children, it has been stated that, ‘(t)he child is in any event, and independently of parental responsibility, a full member of his family’ (Hale LJ in Re B (Adoption by one natural parent to the exclusion of the other) [2001] 1 FLR 589). The case of H and G (Re H and G (Children)(Adoption: disclosure) [2001] 1 FLR 646) also stressed the importance of considering parents who do not have PR as parents in adoption cases. Regarding H, an Article 8 ECHR right to family life for the father existed because of a ‘close family tie’ between parent and child. A relationship, past or present, between the child’s father and mother and siblings is sufficient to warrant a prima facie assumption of Article 8 rights for fathers, although this assumption is rebuttable by evidence concerning the relationship in question. The legal test of ‘parenthood’ is not whether PR is vested in the parent, nor even whether the parent and child know each other, although these are relevant considerations. Although under the Adoption Act 1976, a father without PR is not a ‘parent’ for the purposes of consenting to the adoption, after H and G, placing a child for adoption without taking all reasonable steps to give notice to the birth father would be a breach of his rights under Article 8(1). Failing to make him aware of the proceedings or giving him the opportunity to take part would be a breach of his rights to a fair hearing under Article 6 ECHR. The existence of a biological relationship and a (broadly defined) close family tie with a child are sufficient to qualify as a parent for the purposes of the ECHR and the Human Rights Act 1998 (Keegan v. Ireland [1994] 3 FCR 165). These factors must also define the people in respect of whom a child has Article 8 rights. It hardly seems reasonable to hold that Article 8 rights are conferred on a parent because of a biological relationship and/or family tie, without conferring similar rights on the child. If the extinction of parental rights in adoption does not bring parenthood to an end, because being a parent is more than having PR or even contact with a child, this supports the argument that children retain rights in respect of the parent even when the parent has lost his or her rights in respect of the child. If these arguments are accepted then it would appear that denying an adopted child contact with parents in the absence of considered evidence that this is a proportionate and necessary course of action would be a breach of the child’s rights. If birth parents are still parents, albeit without PR, a reasonable interpretation of Article 8 ECHR is that there is prima facie duty on the State to demonstrate that it is contrary to the child’s interests to maintain direct 278 PENELOPE WELBOURNE contact with birth parents in every case in which the plan is to terminate contact after adoption. (ii) Contact and proportionality In the case of B, a father obtained an adoption order in respect of his natural child. The Court of Appeal set this aside on the grounds that it was not in B’s interest to deprive her of her legal relationship with half her family, and this was a disproportionate response to the child’s needs. B’s mother was unlikely to intervene in her life, showing no interest in caring for or having contact with her (Re B (Adoption by one natural parent to the exclusion of the other) [2001] 1 FLR 589). The House of Lords reinstated the adoption. Considering B’s Article 8 rights in respect of her mother, the House of Lords concluded that they were not capable of being infringed by an adoption order properly made once the court has carried out the ‘balancing exercise’ inherent in the Convention concepts of social need and proportionality. The adoption order must be a necessary and proportionate response to the child’s needs, having considered the advantages and disadvantages adoption would have for the child (Re B (A Minor)(Respondent) [2001] UKHL 70 para. 31). This appears to deal in one stroke with two issues. The first is whether an adoption order can itself be a contravention of a child’s Article 8 rights – to which the court’s answer was, ‘no, not if it is made lawfully’. With this there would seem to be no difficulty. The second issue, whether or not a child’s Article 8 rights might be infringed by the specific terms of her adoption seems to have been answered in the same terms. However, the second issue is rather more complex: an adoption order may be necessary and proportionate for the child, but in some cases the child’s Article 8 rights may require specific additional protection – for example, through an order for contact with specified relatives. If all contact issues that concern relationships of the child’s that might qualify for Article 8 protection are not evaluated using the same test of necessity and proportionality, and protection or termination of contact considered in light of this test, then the Article 8 rights of a properly adopted child would appear to be vulnerable to violation. The House of Lords in Re B confirmed that legislation must be interpreted in such a way as to avoid courts making adoption orders that represent a disproportionate interference with the child’s needs – needs rather than rights are specified – by excluding one parent. The ‘balancing exercise inherent in the principles of the Convention’ referred to in the judgement in Re B perhaps implies that all of a child’s relationships, parental and otherwise, that might reasonably be seen as covered by Article 8 should be reviewed in the light of proportionality and need before they are excluded from the child’s life by the making of an adoption order. ADOPTION AND THE RIGHTS OF CHILDREN IN THE UK 279 Contact with parents: The new guidance and the ECHR The 1998 UK government guidance in respect of contact for children leading up to and following adoption was that “. . . for some [adopted] children, contact may provide a positive aid to a successful placement with their new family. Making contact arrangements is a skilful task, balancing the needs and wishes of the child with the importance of preserving the stability of the adoptive family.” ‘Mutually agreed’ arrangements are commended as having the best chance of success (DOH, 1999, para. 7). When a decision has been made that the plan for a child is adoption, plans for the child should include a recommendation as to whether and how the child should have continuing contact with their birth family. LAC(98)20 recognised that ‘(t)he majority of children who are having to live with new families have clear memories of their birth families and relatives (DOH, 1998, para. 57). For many children, relationships with members of their family, previous carers and others are valued. Consequently, for some children, contact may provide a positive aid to a successful placement with their new family.’ Contact is ‘primarily for the benefit of the child’. Whatever the value of such statements within a ‘welfare’ framework, they are a very long way from an approach based on a concept of children’s individual rights as the driving principle in the formulation of policy relating to children. The National Adoption Standards (DOH, 2001b, Section A 10, para. 35) states that existing contact arrangements for children for whom adoption is the plan may have been designed to support rehabilitation and should be reviewed, considering whether it meets the child’s needs to have direct contact, and whether it meets the child’s needs to have indirect contact. This approach is based on a very different approach from that applied by courts considering ‘depth of harm’ in Children Act s.8 applications in respect of contact with non-resident parents. The Draft Practice Guidance to Support the Adoption Standards 2001 states: The assessment of birth parent involvement should include: whether the parents have requested that their child be adopted . . . [a]n assessment of the parents’ capacity to focus on their child’s interests . . . [a]n assessment of past behaviour towards the child. The decision will not usually be a simple yes or no, but rather a continuum which allows the birth parents to have appropriate levels of involvement . . . [t]he professionals’ task is to ensure that they respect the rights and maximise the involvement of birth parents within the context of the responsibility to safeguard and promote the welfare of the child’. (DOH, 2001a, Chapter D, paras. 2–3) 280 PENELOPE WELBOURNE Parents’ rights are mentioned, but not defined. The termination on adoption of birth parents’ PR without substitution of any other legal right makes this use of the term ‘right’ without further explanation unsatisfactory. Such rights as children may have in respect of family membership are not defined. This does not however mean they do not exist prior to adoption (Beckett and Hershman, 2001), and the status of those rights post-adoption is far from clear. This makes the Guidance’s position that the rights of parents, but not children, should be considered in making decisions about future contact in planning for children in this context somewhat surprising. Adopted children and contact with siblings and other family: Re S and the ECHR It is acknowledged that many children placed for adoption are likely to have come from families characterised by problematic family relationships. Article 8 [ECHR] rights may have been forfeited by many of these parents by their own choice or because of their failings as parents, but problematic parent-child relationships may not be reflected in all the child’s family relationships. Siblings are part of a child’s family, and there is a prima facie case that their relationships should qualify for protection under Article 8. However, a case involving siblings (Re S (Contact: application by sibling) [1999] 3WLR 504) highlights the difficult issues raised when family members other than parents wish to maintain their relationship with a child no longer cared for by the child’s parents. In an application by an adopted nine year old child for leave to bring proceedings under ss. 8 and 10 of the Children Act 1989 in order to see her separately adopted seven year old half brother, leave was refused on the grounds that the adoptive mother of the younger child had the freedom and discretion to decide what was in the boy’s best interests. Since her refusal of contact was not outside the range of decisions a reasonable parent might make, the application for leave was refused. Expert evidence regarding the ‘profound and harmful’ effect of the distress the separation without contact had caused the applicant child was not persuasive. The child’s application was further doomed to failure by the decision of the court that the child whose best interests should be paramount was the younger child, whose interests were by implication to be decided by the adoptive parent opposing contact. Balancing the children’s competing interests – if they truly did compete – was deemed to be contrary to the interests of both children. The test was grounded in concepts of welfare, not rights – other than the right of the adoptive mother to exercise her discretion within ‘reasonable’ limits. Adopted children are not identical to non-adopted children in respect of family composition, however closely the legal relationship with their adoptive ADOPTION AND THE RIGHTS OF CHILDREN IN THE UK 281 family resembles non-adoptive family legal relationships. It may be questioned whether it is reasonable to respond in every case to adoptive parents’ wishes as though the children were so identical, as arguably happened in the case of Re S. The court’s prioritisation of the right of the adoptive parent to make decisions about sibling contact was arguably only possible within a framework that attaches an unreasonable and disproportionately more weight to legally created adoptive parental rights compared with rights based on those biological and family relationships that remain after an adoption order has been made, with the ‘welfare of the child’ the vehicle for this prioritisation. It remains to be seen whether the European Convention on the Exercise of Children’s Rights will strengthen children’s procedural rights enough to make any difference in such cases (Smith, 1997, p. 143). Article 1.2 of this Convention, which is yet to be ratified, states its aims as ‘. . . ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in proceedings affecting them before a judicial authority.’ The younger child in Re S was the subject of the proceedings: it is arguable in future he might qualify for participation through a guardian ad litem who does not have any potentially conflicting interests (Article 9 of this Convention will make provision for the judiciary to have power to appoint a separate representative for children where there is potential conflict of interest between the child and the holders of PR). Separation of siblings by adoption is a breach of Article 8 of the ECHR. Beckett and Hershman (2001) argue that in such cases, ‘(i)n simple terms, it must be shown that the breach is justified as being necessary for the welfare of the child concerned and a proper balance between the rights of all concerned is maintained’, when a decision is being made to separate siblings. Following Re S, balancing of the rights and welfare of individual siblings is not an appropriate test. The parental responsibility of adoptive parents and their perception of the welfare of their adopted children effectively over-rides the Article 8 rights of any of the children involved. However, should arguments based on the right to family life in Article 8 be raised in such cases in the future, there would seem to be at least the possibility of success, despite the courts’ evident reluctance to make decisions that infringe upon the PR of adoptive parents. The issues raised by cases such as Re S have further relevance for other birth family relationships of adopted children where there have been significant family ties prior to adoption. We have, I would argue, historically accepted an approach to adoption that places the interests of adults high on the agenda. Adopted children may be seen as fortunate children with new legal parents, children who lost a problematic family to gain a better one. It is also an arguable proposition 282 PENELOPE WELBOURNE that the test as to whether contact should be available and how, and how the various parties’ rights and interests are to be weighed, should be the same for all children, whether they are adopted or not, taking their individual circumstances into consideration. The evidence about children’s need for information and/or continuity of contact with the birth family is beginning to be collected, but it is still a fairly new and developing area of knowledge (Berridge, 2000; Howe et al., 2000; Quinton et al., 1997, 1998). Research is of critical importance to inform balancing the harm that could be caused by intrusive contact against the harm that might be caused by unnecessarily restrictive contact arrangements or termination of contact. However, a rightsbased approach implies a presumption that contact with birth parents and other significant family such as siblings with whom the child has non-abusive family relationships will be protected, or be infringed only insofar as is proportionate and necessary to safeguard some other right of the child. It is established that Article 8 of the ECHR covers ‘at least the ties between near relatives, for instance those between grandparents and grandchildren’ (Scozzari and Giunta v. Italy [2000] para. 221, ECHR 1707 13/07/2000). Insofar as Article 8 applies to children’s rights in adoption cases, it must apply to a range of the child’s close relationships, not only relationships with parents, and siblings. Although much case law relates to contact between parents and children, given the problematic parenting experienced by many children adopted from care it is frequently relatives other than parents who will have the strongest claim to continuing contact with adopted children. ‘Lawful deprivation of identity’ and adoption: The United Nations convention on the rights of the child Treacher and Katz (2000) support the idea that children have a prima facie moral right to know about their biological and cultural origins. Article 8 of the United Nations Convention on the Rights of the Child states that, “Parties undertake to respect the rights of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference” and “(w)hen the child is unlawfully deprived of some or all of the elements of his or her identity, the state has a duty to take steps aimed at speedily re-establishing his or her identity”. The UK is one of 191 countries that have ratified the Convention, which may therefore be seen as representing a benchmark for international standards for children’s rights. Adoption appears to be excluded from the provisions of Article 8 UNCRC because it is a lawful ‘deprivation of identity’ in which the child’s birth name, nationality and family relations may all be lawfully removed. However, the domestic courts are under a duty to construe earlier statutory provisions in a ADOPTION AND THE RIGHTS OF CHILDREN IN THE UK 283 manner compatible with the ECHR, and statutes are now exposed to the ‘challenge’ of the Human Rights Act 1989 (Re S and others: Re W and others 2002 2 All ER 192). The extent to which identity as broadly defined in Article 8 UNCRC is lost varies from one adopted child to another, but some such loss is inevitable. Adherence to the letter and spirit of earlier legislation may not of itself be a guarantee of legitimacy, so a deprivation of family information and/or relationships that would be capable of supporting a child’s identity in the absence of necessary and proportionate cause could arguably be an illegal act. There is a marked contrast between the level of protection given to birth family contact for children in continuing local authority care and children who are adopted. The Children Act 1989 (s. 31) makes compulsory intervention in children’s family life legal, and a duty, in specific circumstances when to fail to do so would be to risk significant harm to the child. Subsequent intervention, if it is to be compliant with the Human Rights Act, must be proportionate to the risk to the child, including the future development of the child, and take account of the child’s wishes and the rights of child and parents. This includes long term planning for the child. For children in care, unless severance or severe restriction of contact is proportionate to the risk to the child or clearly against the child’s wishes it may be hard to demonstrate in what way such interference is necessary (Herring, 1999). Actions which are in accordance with domestic law but not proportionate or ‘necessary in a democratic society’ may be open to challenge in the European courts: The court thus recognises that the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the rights of parents and children to respect for their family life. (K. and T. v. Finland ECHR 12/07/01) Parents cannot however be entitled under Article 8 of the ECHR to have such measures taken as would harm the child’s health or development (Johansen v. Norway 7/08/1996 ECHR Reports 1996 III). While a child is in care the law permits only such intervention as is necessary for the protection of the child. For children who are being adopted, the issue is whether the state may lawfully make any arrangements for the child that are assessed as consistent with the child’s welfare without such limitation. If a plan for adoption without family contact is not justified by the risk posed by members of a child’s family and is contrary to the child’s wishes, then it is arguable that the balance between the State’s powers to intervene and the child’s Article 8 rights is 284 PENELOPE WELBOURNE skewed against the protection of the child’s rights. Adoption without contact may be a ‘lawful deprivation’ of prior identity where this is proportionate to the risk to the child, but only when this proportionality exists. The UNCRC provides that identity should be vigorously protected. Following from this, even the extinction of birth parents’ PR should not imply a loss by the child of the right to such aspects of identity as may be preserved without significant risk to the child. The difference between being adopted and being in longterm foster care may be less distinct than previously. Some fostered children are adopted by their foster carers, some adoptive placements break down and the children return to ‘care’. The proportion of adopted children whose adoption breaks down may increase if the proportion of children adopted from care increases, because of the probable change in the profile of children placed for adoption to include children who are ‘harder to place’ (Douglas, 2001). A proposed increase in the speed with which adoptions are arranged may have a positive or negative impact on the success rate of placement (DOH, 2002, para. 12). ‘Permanence’ is a relative term. The importance of a clear ethical and legal basis for severing links that may not be recreated if adoption fails is therefore as pressing as it has ever been. Adult expectations in respect of fostering and adoption may be very different, but it may be questioned whether the difference in circumstances between children who are fostered and those who are adopted is sufficient to warrant such different approaches to protection of birth family relationships. Given the difficulty of predicting which children will end their childhood in foster care and which with adoptive parents, the argument for a more consistent rights-based approach for all children facing alternative long-term care would seem to have some persuasive force, particularly for later adopted children where the rate of adoption breakdown is higher. The Draft National Adoption Standards document lists factors to be taken into account in considering children’s post-adoption ‘links or contact with birth parents, wider birth family members and other people who are significant to them’: the child’s needs, wishes, feelings, welfare and safety (DOH, 2001b, para. 10). No mention is made here of rights, the child’s or the family’s, although the same document does also state that ‘(c)hildren’s welfare and safety will be put first, and their rights, needs and wishes, elicited, recorded and taken into account at all times’ (DOH, 2001b, Appendix F, para. 1). The rights that are to be recorded and taken into account are not specified. The best interests principle is still central in adoption planning, children’s rights having an unclear subsidiary role. Siblings who are in care together may be placed together, but siblings may be separated by legal ‘care’ status as well as by the placement decisions of local authorities (Re M (Contact: Welfare Test) [1995] 1 FLR 274, Re S ADOPTION AND THE RIGHTS OF CHILDREN IN THE UK 285 (Contact: Application by Sibling) [1999] 3 WLR 504). Further, when one considers the over-representation of children whose culture is not that of the dominant white UK population in the ‘care’ population (Barn, 1993), and difficulties recruiting ethnic minority adopters, the issue of the child’s right to preservation of identity is an issue of cultural significance. A target of increasing adoption from care by up to 50 per cent by 2004/5 (DOH, 2001d, LAC 2001(33)) means that the pressure to assess approved families as able to meet a child’s needs in respect of ethnicity, cultural and religious identity and sibling relationships could be considerable. For children adopted by families who do not share the child’s background, the issue of right to maintenance of relationships formed prior to adoption has additional significance related to culture. ‘Identity’ and the new practice guidance Identity and access to birth family information for adopted children are associated in Government guidance. The Local Authority Circular (98)20 ‘Adoption – Achieving the Right Balance’, ended with a quotation from Simon Brown LJ, in which he sets out four reasons for considering contact for adopted children (DOH, 1998). These relate to the child’s security in knowing that his birth parents love him and are interested in his welfare, avoiding a sense of abandonment on the part of the child, enabling the child to commit himself to the substitute family with the seal of approval of the natural parents, and, lastly, ‘giving the child a necessary sense of family and personal identity’ (Re E (A Minor)(Care Order: Contact) [1994] 1FLR 146 at pp154H–155B, cited in DOH, 1998). Two premises underpin the discussion of selecting information to be shared with adopted children: the welfare of the child as the primary consideration, and the significance of birth family information in the development of identity for adopted children. On the reasons for sharing information, the Draft Practice Guidance says, “It can be reassuring to give a child a strong link with their past by providing information about family members and their well being. It can also provide a strong link with their own identity. Contact can also be unsettling or even disturbing” (DOH, 2001a, A9 and A10, para. 32). The Draft Guidance also states, “Where information exists that may be difficult for a child to comprehend, or where it may damage the placement stability or the child’s self esteem or identity, the agency should fully evaluate the circumstances and reach a decision on an appropriate course of action. Where the agency decides to withhold any information the reasons should be explained in the agency’s records” (DOH, 2001a, A7, para. 25). The presump- 286 PENELOPE WELBOURNE tion appears to be that information will be shared with the child, openness being limited only by considerations of the child’s welfare, including development of identity. As so interpreted, this is broadly consistent with an approach based on an assumption of the right to information, moderated by concern for the child’s welfare. The Draft Guidance also states, “Adopted parents will be encouraged to keep safe any information provided by birth families via agencies and provide this to the adopted child on request, or as they feel appropriate” (DOH, 2001a, Chapter C4). At this point, the principle that governs what children obtain in the way of information is clearly adoptive parents’ discretion: any hypothesised prior right to information on the part of the child is unenforceable once adoptive parents acquire sole PR. This may be contrasted with current concern about post-care order implementation of care plans (Re S and others: Re W and others [2002] 2 All ER 192). Effectively, for the period between adoption and adulthood, the child has lost the right to contact with birth family and to information about his or her family, unless specific provision has been made by a court. Where the courts have inclined to find a right to family information, it has been on the premise that such information is needed for the purposes of establishing or supporting an individual’s identity. In respect of contact, adopters are to be “encouraged to formally sign up to” agreed, but unenforceable, plans at the time of the adoption (DOH, 2001a, C4, para. 15). Adoptive parents are not under any obligation to ascertain the child’s wishes and feelings in respect of information sharing, take them into consideration, apply a test of competence or prioritise their welfare in making decisions, although most of them may do some or all of these things. Any inferred right to have all information that is not difficult for the child to comprehend nor potentially damaging to placement stability, selfesteem or identity, is diluted by scope for wide variation in interpretation of the Guidance, and the absence of any mechanism for supporting the child in implementing those rights post-adoption. If continuity of contact and/or information about family and culture of origin is of central importance for identity, and in the case of adoption the withholding of both contact and personal information is permissible, then adoption encompasses ‘lawful deprivation of identity’. If children are seen as retaining some rights to pre-adoption identity and birth family contact that should only be overridden when there are compelling grounds for doing so, and these are related to Convention rights to family life, this defines with increased specificity the range of circumstances under which such deprivation is lawful. Additionally, the circumstances under which such deprivation is legal would have to include consideration of proportionality. In any other circumstances the deprivation would be unlawful, and ADOPTION AND THE RIGHTS OF CHILDREN IN THE UK 287 the State would have a duty to resolve the unlawful deprivation ‘speedily’. Factors which make this a particularly consideration are the long-established over-representation of children from black and ethnic minority backgrounds in the ‘care’ system (Barn, 1993), and the explicit determination that the absence of ‘perfect’ match should not deter adoption agencies from seeking to match and place children within relatively short timescales (DOH, 2001a, 2002). Conclusion Both the developing adoption legislation and the Children Act 1989 are largely concerned with the allocation and regulation of PR. Changes in the parental rights of adults have wide-ranging impact on the rights of children. It is argued that, in adoption, children’s individual rights in respect of family membership currently have a subsidiary place in the decision-making process, despite, or perhaps because of, the primacy of their welfare. Our human rights obligations outside English law necessitate a review of this approach to decision-making in children’s cases. A rebuttable presumption could be introduced that direct contact will be facilitated with those interested and concerned members of the child’s family who do not present a threat to the child’s welfare, in accordance with the child’s ascertainable wishes. This would place the onus on local authorities and adoption agencies to state clearly how the plan for the child addresses the child’s rights as well as needs in respect of family and identity, with particular reference to Article 8 of the European Convention on Human Rights. It would represent a real commitment to the principles of Article 8 of the European Convention on Human Rights and Article 8 of the Convention on the Rights of the Child. Current policy and proposed legislation go a long way towards providing a more predictable and accountable service to children and adopters. It is argued that greater clarity about the content and practice implications of children’s rights in relation to adoption, as set out above, would strengthen that framework. It would be unfortunate were we to go too far in the direction of developing a system in which children grew up to tell of the damage they feel they have experienced as a result of maintenance of links they found difficult and disruptive but hard to resist. Research will undoubtedly help in striking the balance: in the meantime we need a legal and administrative/welfare system relating to adoption that incorporates as fully as possible the principles of human rights as well prioritisation of the rights of the child over other, adult interests. If adoption is to be a truly legitimate legal process in every case, 288 PENELOPE WELBOURNE the implications of children’s rights need to be considered explicitly at every stage of the care planning process. 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