Adoption & Human Rights Seminar Paper

Posted On: 04 March 2008

Author: Janys M Scott QC

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This paper was originally delivered on 25 February 2008 at a seminar organised jointly by the Legal Services Agency and Murray Stable and is reproduced with their kind permission.


How well has adoption stood up to the challenge posed by the European Convention for the Protection of Human Rights and Fundamental Freedoms?  Can adoption survive in the brave new world of human rights?  Does the law require to change its approach to unmarried birth fathers, to adopters, to dispensation with parental agreement, to procedure or to post-adoption contact?  How effective are the new provisions of the Adoption and Children (Scotland) Act 2007 in meeting the challenges of human rights.  Time alone will answer some of these questions, but in the meantime we can make a start.

Adoption and the Convention
Article 8 of the European Convention on Human Rights provides:
1. Everyone has the right to respect for his private and family life …
2. There shall be no interference by a public authority with the exercise of this right except such as 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.

Article 6 enshrines the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal.

The Human Rights Act 1998 (in force since 2 October 2000) has provided the opportunity to test Scottish adoption law against the standard of the European Convention on Human Rights.   The 1998 Act was designed to give effect to the Convention in domestic law.  The result is that the law itself may be tested against the standard of the Convention.  It requires to be interpreted, so far as possible, in a way that is compatible with Convention rights (section 3).  If it is not compatible with Convention rights, then the Court of Session, or the House of Lords, may make a declaration to this effect (section 4).  A declaration of incompatibility will not affect the validity, operation or enforcement of the existing law, but acts as a clear marker to the relevant Parliament that action is required.  Further the law must be applied in a manner that complies with the Convention.  It is unlawful for public authorities to act in a way that is incompatible with Convention rights (section 6).  Public authorities include courts and persons with functions of a public nature.  Local authorities and registered adoption services are also public authorities. 

Adoption in the European Court of Human Rights
At first sight the European Court of Human Rights took a restrictive approach to adoption.  This is perhaps best exemplified in the case of Johansen v Norway (1996) 23 EHRR 33.   In Johansen a mother had a long history of difficulties.  She had been involved with a violent and drug abusing partner.  Her first child had special needs and mental health problems.  He was placed in a children's home.  The mother's lifestyle was chaotic.  She rejected help. She did not attend to her own health needs. When a second baby was born the authorities decided that the child would be at risk if not taken into care immediately.  The mother had access twice a week.  Her situation improved.  Her son returned to live with her.  Nevertheless when the younger child was six months old the authorities decided that she should be placed permanently with another family and the mother's access was terminated.

The European Court of Human Rights analysed the case in the way that has become standard. 

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