Adoption Law and Human Rights

International Perspectives

Kerry O'Halloran

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317309543
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

In recent decades, there have been many changes to adoption law and practice, such as a sharp decline in the voluntary relinquishment of children, an increase in the number consigned to public care, and an abrupt decrease in those made available on an intercountry basis. Additionally, human rights are becoming more prominent, particularly in relation to issues such as: non-consensual adoption; the ethics of intercountry adoption; the eligibility of LGBT adopters; the impact of commercial surrogacy; and the sometimes conflicting rights of birth parents and adoptees when accessing agency birth records.

In this book, O'Halloran presents a comparative analysis of the interaction between adoption law and human rights in common law (England and the US), civil law (France and Germany), and Asiatic traditions (Japan and China), while also developing a matrix of legal functions to assist in identifying and analysing areas of tension between human rights and adoption.

This book is intended for a lawyer readership, whether professional, student or academic: researchers and postgraduate students in subjects such as social work, social policy and politics may also find it helpful.

Part I

Background

1 Human rights and the concepts, principles and social construct of adoption

Introduction

This chapter begins by identifying those human rights that would seem to have a particular relevance for adoption. By way of a broad introduction it discusses the challenges and conflicts involved in the relationship between these two bodies of law. To that extent it prepares the ground for the more functional analysis that follows in Chapter 4. It then turns to focus on the social role of adoption and does so by tracing its genesis in the law, policy and practice of England. It considers the concept and its culture-specific determinants. It considers values and taboos, the ‘blood link’ and boundaries. It examines the purposes served by adoption: dealing with inheritance, kinship, welfare, step-parents and the needs of childless couples. It distinguishes adoption from other legally authorised forms of alternative parenting (e.g. guardianship and kafala): giving particular attention to the concept of ‘permanency’ and the relative merits of adoption or long-term foster care.

The chapter then explains and differentiates each of the three main types of modern adoption as experienced in England and elsewhere – family, childcare and intercountry. It identifies the different permutations that constitute each type, assesses their relative strengths and weaknesses, taking into account the related governing principles. It notes the extent to which adoption has, in England as in many other countries, become a discretionary adjunct to matrimonial and childcare proceedings. In particular, it considers childcare and intercountry adoptions (ICAs) and the controversies they generate.

Human rights and adoption

While many of the 30 rights enumerated in the Universal Declaration of Human Rights (UDHR) and endorsed by the United Nations General Assembly in 1948 have relevance for adoption, a few are of particular importance. This cluster of core rights has long since been amplified and added to by subsequent international treaties, conventions, protocols, etc. (see further Chapter 3) and extended by rulings of the European Court of Human Rights (ECtHR) (see Chapter 4). As is readily apparent, the list contains different groupings of rights and freedoms: some with implications for the adoption process and the legal system it operates within; others with direct implications for the child concerned; others for the parties and countries involved; and finally some have a relevance for adoption outcomes.

The legal system and regulatory procedures

The UDHR provisions that seem most relevant in this context are those relating to: equality; legal protection, representation and access to a fair legal system; and to freedoms of association and assembly.

Independent forum

For the rights of the parties concerned to be protected, issues resolved and for an adoption application to be determined, an independent forum with powers to scrutinise all aspects of a proposed adoption, and with discretion to make an order other than the one sought, is a fundamental necessity. This requires that such a forum has access to the professional expertise needed to provide reports and assessments on the circumstances of all parties.

Representation

While equal representation for the parties involved in any legal proceedings is always at least desirable, it is arguably essential when such proceedings concern lifelong changes for a vulnerable child.

Due process

Again, a process designed to permanently and irrevocably change the legal status of the parties is one that requires clear and transparent grounds for initiating proceedings, for decision-making and for appeal. The procedures, grounds, rules governing participation, the orders that may be made and their effects must be statutorily stated and enforced.

Discretion and choice in decision-making

Adoption should never be a rubber-stamping administrative exercise. Unless the grounds for issuing an adoption order can be fully satisfied, and such an order would be in the best interests of the child concerned, then other disposal options must be available.

Adoption agencies

The right to freedom of association is as important in the context of adoption as in other fields. Independent adoption societies or agencies established to improve practice, advocate on behalf of the interests of the parties, raise issues and lobby for changes in legislation have historically played a significant role in developing the adoption process. The presence or absence of such organisations can be a revealing indicator of the prevailing policy governing State intervention in family affairs.

Circumstances giving rise to adoption

In this context the most relevant UDHR provisions are those relating to: life, security and freedom from inhuman treatment; protection for the mother and child relationship, whether marital or not; family life, an adequate standard of living, recreation and education; freedom of movement; and the freedoms of expression, religious belief and culture.

Welfare interests of the child

In circumstances where a child has been orphaned, abandoned or voluntarily relinquished, is a disaster victim, or has become the subject of grievous parental abuse or neglect – and no kinship care arrangements are possible – then it is readily apparent that adoption would be an appropriate means of ensuring life, security and freedom from inhuman treatment for that child. In all other circumstances, justification for adoption remains to be proven. Moreover, adoption cannot be viewed solely in an immediate time frame, it is important that it can be justified by projecting the welfare test into the future to show that it will continue to be satisfied on a lifelong basis.

Parental rights

Studies in developmental psychology show that, absent any untoward factors, the bonding relationship provided by a birth parent is an intrinsic element of the welfare interests of a child and affords the best means of safeguarding and promoting those interests. While the concept of ‘parental rights’ no longer has validity in law, having been displaced by ‘parental responsibilities’, it still requires a convincing weight of evidence to divest a parent of the rights/responsibilities inherent to that role and there is a presumption that a birth parent would be best placed to continue as holder of such rights/responsibilities following a divorce. Whether parenting arrangements have been disputed in public or private family law proceedings, there is also a presumption that if parental rights/responsibilities have to be transferred then it would be most conducive to facilitating the development of a child’s identity if that transfer were conducted on a kinship basis.

State intervention

The grounds justifying State intervention, to exclusively and permanently transfer the care of a child from the birth parent/s to others, is a matter of crucial importance in any democratic society. Whether in the context of private family law or public childcare law, this issue is of profound significance for the human rights of all concerned.

Adoption outcomes

Following completion of an adoption process the most relevant UDHR rights are those that address the changed legal status of the parties involved, namely: the recognition due to an individual; to privacy; and the right to nationality.

Change to the legal status of the parties

The absolute, exclusive and permanent nature of adoption – and its wider and intergenerational implications for the families involved – means that if successful the outcome of proceedings have a very real and lasting significance. Essentially the importance of adoption lies in the fact that it alters the legal status of the parties relative to each other. Most importantly, it provides a legal framework within which the adoptee will have the opportunity to acquire a new identity with accompanying rights to citizenship and inheritance. The privacy rights of the parties involved may be safeguarded by laws regulating the disclosure of identifying information.

At the heart of adoption, and represented in the new legal arrangements that come into effect on the granting of an adoption order, is the right of a child to a family rather than any reverse right of a person or couple to a child. The adoption process – and this book – is basically about how the checks and balances in the laws of different jurisdictions, as measured against human rights indicators, play out amid the conflicts and complexities involved in ensuring that for the children concerned the prospect of family life with adopters is a justifiable alternative to family life with their birth parents. The above classification of human rights offers a guide for exploring such matters.

Adoption and cultural context

Adoption has been acclaimed as the chosen means of providing homes for children in need.¹ However, while this may have become one of its current social functions, it was acquired relatively recently.

In agricultural societies the modern problem of unwanted children did not seem to arise, as an extra pair of hands was always useful in societies tied to the land, but when 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. Abandoning children to the workhouse was the only option available to the many poverty-stricken parents who had not benefited from the Industrial Revolution and this was the fate of very many children. Neither in this society nor in others has adoption necessarily always related to the needs of children: in some societies, adults were the preferred adoptees; in others it was designed specifically to serve the interests of adults in need of children. The tension between altruism and self-interest has been a constant feature.

The reasons for recourse to adoption depend on the significance attached to ‘family’, which in turn have always been determined by cultural context, reflecting the nature of different societies and the changes in the same society over time.

Inheritance

Adoption has its legal origins in the law relating to the ownership and inheritance of property.² 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 or tribal societies. In China, India and Africa adoption has long served this purpose.³ This function transferred in time to western societies to accommodate the inheritance of estates, other assets and social status.

Roman law

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, for example, could adopt only if he did not have an heir, was aged at least 60 and the adopted was no longer a minor.⁴ Heir adoption, therefore, owed its origins to an ‘inheritance’ motive and all other factors being favourable found early acknowledgment in law.

Community solidarity

Closely linked to this property based social role is the practice of kinship adoption.⁵ For some agricultural societies, such as those of India and China, these were synonymous as a relative was the preferred adoptee. Ethnic groups such as Native Americans and the Indigenous People in Australia 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.⁶ The importance of this social function is illustrated by the fact that for the Hindus of India adoption outside the caste is prohibited⁷ while for the Polynesians the adoption of anyone other than a relative is an insult to the extended family.⁸ Kinship adoption in such a cultural context seems to 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.

Social advancement

In some cases, the purpose of adoption is to secure social advancement for the adopted.⁹ 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.¹⁰ In Japan, also, the adoption of non-relatives was traditionally seen as a means of allying with the fortunes of the ruling family.¹¹ 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.¹² It bears a strong resemblance to the feudal practice in England of paying fealty and showing allegiance to a lord by placing a child for court service.

Concepts and constructs

The concept of ‘adoption’ addresses the act of the adopter, an act which sets in mot...