Under the Adoption Act 1976, the welfare of a child to be adopted was merely the first consideration in adoption decisions in England and Wales. The child‘s welfare became the paramount consideration when the Adoption and Children Act 2002 was commenced in 2005. This ostensibly brought English Law into line with Article 21 of the United Nations Convention on the Rights of the Child (the UNCRC or the Convention), which requires states inter alia to ensure that the best interests of the child shall be the paramount consideration in the context of adoption. Of course the Convention as a whole has not yet been incorporated into English Law, a state of affairs that continues to cause concern for the UN Committee on the Rights of the Child. But Baroness Hale has recently emphasised in the Supreme Court that the Convention imposes binding obligation[s] in international law. Moreover, the UNCRC is cited by the European Court of Human Rights when applying the European Convention on Human Rights (the ECHR), which has been incorporated into English Law, and the Convention is an important measure of the protection afforded to children‘s rights in national law.
This article considers the scheme of the 2002 Act and conducts a survey of the domestic adoption case law under it in the light of some of the requirements of the UNCRC, with particular reference to the implications of the Act for the prospective adopted child‘s relationship with his birth family. It is particularly appropriate to consider the overall consistency of the Act with the UNCRC (as distinct from the ECHR, where the focus of scholarly discussion often tends to lie) given that the terminology of the Act appears explicitly to ensure compatibility and may thereby generate political advantage for the Government of the day.
The article argues, however, that the judiciary‘s understanding of the paramountcy‘ of best interests when applying the Act, their treatment of the child‘s birth parents and his relationship with those parents and their frequent emphasis on achieving a secure adoption placement irrespective of the other interests involved may risk infringing certain provisions of the Convention. Those provisions include Article 21 itself, which requires that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians‘ and makes specific reference to the informed consent to the adoption‘ of relevant persons. Other pertinent provisions of the Convention include Article 7, which protects the right of the child to know and to be cared for by his parents as far as possible; and Article 8, under which the child has a right to preserve his identity and family relations.
It is not contended in this article that the additional rights protected by the UNCRC should be given priority over the child's judicially-determined individual and immediate best interests in every adoption decision. But the article highlights the fact that the implementation of the UNCRC in the field of adoption law is far from straightforward. It begins by examining the paramountcy of best interests under the Convention and English Law and analysing the implications of other aspects of the Convention. It then considers English Law‘s compatibility with the Convention in view of the child‘s relationship with the natural parents both pre- and post-adoption.
Throughout the discussion, reference is made to the Concluding Comments issued by the UN Committee on the Rights of the Child, which is said to be recognized as the highest authority for interpretation of the Convention, in response to national reports submitted by state parties. Another invaluable tool is UNICEF's Implementation Handbook for the Convention on the Rights of the Child, which aims to synthesise the Committee's views and provide a detailed reference for the implementation of law, policy and practice to promote and protect the rights of children‘.
23 September 2011
'Conflicting Rights: English Adoption Law and the Implementation of the UNCRC' (University of Cambridge Faculty of Law Research Paper No. 30/2011) by Brian Sloan comments that -