New Directions: Help or Hindrance? - Seminar paper

Posted On: 24 June 2008

Author: Janys M Scott QC

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This paper was originally delivered at the British Association for Adoption and Fostering Scottish Legal Group Seminar in Dundee on 13 June 2008 and is reproduced with the author's permission.

“New Directions: Help or Hindrance?”

Today brings the opportunity to review the changing face of adoption and fostering in a new century.  The title for the day is “New Directions: Help or Hindrance?”  This begs the question.  For whom are the new directions a help or potential hindrance?  It is important to identify at the outset the person at the centre of our consideration.  That person is the child.  Not just any child, but each particular child.  Every child is an individual.  Each child is unique.  Each child we consider in social work practice, or legal proceedings is a person whose welfare may be advanced, or set back, by the interventions of social work services and legal services. 

Children should now have a voice.  This is the effect of article 12 of the United Nations Convention on the Rights of the Child. States Parties to the Convention are required to assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child.  Children’s welfare is to be paramount in relation to adoption. Article 21 provides that States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration.  Children do not however have a vote.  They are politically powerless.  It is therefore easy for their voice to be drowned and their welfare overlooked in relation to matters of policy and legal structure. 

If children were to have a “vote” in relation to policy and legal structure, what would they say? In 1999 BAAF published a book called “Adopted Children Speaking”.  Here are some of the things that children said:

“I wanted a family that would take care of me and not leave me alone. And when I wanted them, they always come.  And feed me properly, and look after me, and be kind …”

“I was worried whether I would be allowed to get adopted or not.  And if I was not, what would I do and where would I go?”

“I was three when I first went in there (a community home), I was eight when I came out.  So I had a long wait …I did not like it.  I think I had to wait too long.”

“I was scared because I had never seen a judge before – that’s the first time I ever did and I never know what it was going to be like.  So I was scared.”

The message from children to politicians, practitioners and lawyers is remarkably consistent.  They want secure and predictable relationships. They do not want to have to wait in limbo for too long.  They want to know that those making the decisions about them can be trusted.  These are not new considerations. 

Adoption is important to a small group of children who cannot look to their birth families to provide secure and predictable family life.  It is important that the criteria for identifying who those children are is clear and coherent, but at the same time the law must be sufficiently flexible to allow society to meet the needs of the individual child.  The process of adoption must be well managed to ensure that needs are met within a reasonable time. 

Consent to adoption

At the centre of most litigation about adoption is the question of whether a parent should give consent to adoption.  There are a number of grounds for dispensation of consent. One of the two most common grounds is that the parent is withholding agreement unreasonably .  The House of Lords has told us that this has to be viewed from the perspective of the “objective reasonable parent” .  The “objective reasonable parent” is also a creature of Scots adoption law . This person is frankly a fiction, or as the Court of Appeal in England has said “ a non-existent paragon”.  The Court of Appeal suggested that a judge might ask himself “whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents” .

The alternative most common ground for dispensing with consent is that the parent has persistently failed without reasonable cause to discharge parental responsibilities .  This involves picking over the parent’s past behaviour in a manner that is pejorative.  It invites “pantomime” litigation (“Oh yes you did….”).  It leaves the damaged parent even more damaged and writes up for the child’s future benefit just how bad is his or her genetic pedigree.  It risks a focus on the ills of the parent rather than the welfare of the child.

We needed a new test.  We needed a test that did not involve resort to fictional creatures.  We needed a test that focused on the child, while respecting the parent.  The Adoption Policy Review Group recommended a simple the test for dispensation with parental consent, on the basis that
(a) the parent or guardian cannot be found or is incapable of giving consent; or
(b) the child’s welfare requires consent to be dispensed with.

The Review Group report states that this test should be qualified by a provision that any court applying the test should have regard to article 8 of the European Convention on Human Rights.  It is debatable whether this required to be stated expressly, given the terms of section 6 of the Human Rights Act 1998, which requires public authorities, including social work authorities and courts to act in a way that is compatible with the Convention.  The proposed test was actually identical to that in the Adoption and Children Act 2002.   There is therefore some practical experience of it.   Ministers accepted the report.

(Continued. For full article please download using link at the top of the page.)