The Blog

Adoptions Without Consent: Children's Rights Are Paramount

It was the introduction of the English Adoption and Children Act, passed in 2002, that placed the rights of the child front and centre of the English legal approach to child protection and brought English adoption practices in line with international legislation.

In the 2000s the names Baby P and Victoria Climbie became synonymous with some of the worst cases of child abuse exposed in Britain in recent years. The subsequent inquiries exposed serious gaps in how local social services approached child protection, in particular the failure to take action to protect each child, resulting in a glut of "missed opportunities" to do something before it was finally too late.

Both cases acted as a zeitgeist that changed the way society thought about child protection and called on social services to be more vigilant and more proactive in protecting children. But it was the introduction of the English Adoption and Children Act, passed in 2002, that placed the rights of the child front and centre of the English legal approach to child protection and brought English adoption practices in line with international legislation. Local authorities were placed under a duty to safeguard their children "in need", and children's right to protection from abuse, neglect and harm were to henceforth supersede all other considerations, and the requirement for "consent" to adoption from birth parents dispensed with.

A whole body of research supported the move to legislative change: in 1999, children who had grown up in care were four times more likely to be unemployed, sixty times more likely to be homeless and constituted a quarter of the entire adult prison population. A Prime Ministerial Review of Adoption in 2000 suggested that the UK system was failing its most vulnerable youngsters and that decisions about how best to provide familial stability, security and permanence were taking too long. In this context, adoption was seen to be a way of preventing prolonged and early trauma and to be beneficial to the young and society alike. A millennial White Paper spelled out the British government's plan to promote the wider use of the measure, with the target of increasing adoption by as much as 50% by 2004-5.

This target was not reached, however the ensuing years saw a rise of 38% in the number of adoptions. Likewise, the use of adoption continues to have broad support in Parliament and in the charity sector. In the year ending 31 March 2014, a peak 5,050 children were adopted from public care, up 26% compared to 2013 and 57% from 2010. Of these, 4,870 - or 96% - were completed without the consent of the child's birth parents, an increase of 11% since 2010. Nearly three quarters of these adoptions occurred due to abuse or neglect of the child.

However, serious concerns have been raised about the conduct of local authorities and courts in their use of adoption with consent in the Court of Appeal, by politicians and by aggrieved campaign groups, who fear that the UK system of family courts and targets on adoption are resulting in the unnecessary and at times unjustified breakup of families through "forced adoptions."

A number of petitions on this issue have been brought forward to the European Parliament's Petitions Committee, on which I sit as a member, and in November 2014 a number of parents came to Brussels to explain their plight to its MEPs. It was harrowing to listen to parents display their anguish for all to see at having their child removed from them without their consent. Particularly difficult to hear were cases involving cross border elements where parents, whose first language is not English, have found it difficult to communicate with social services leading to increased distress for child and parent alike.

This is why I called for a fact-finding visit to be undertaken by the Petitions Committee. Meetings with the Rt. Hon. Sir James Munby, President of the Family Division for England and Wales UK Children, representatives from Family Court Advisory and Support Service, police responsible for prevention of child abuse, politicians and family lawyers. The visit will result in a published working document, with recommendations, to present to the European Parliament.

Yet it must be remembered that the EU is very limited when it comes to influencing adoption law, and very little regulation and guidance exists over the process of adoption at European level. An exception to this rule is the so-called "Brussels IIa" Regulation, which sets out the rules on all jurisdiction and cooperation between central authorities with regards to familial disputes and parental responsibility, with specific rules on child abduction and access rights.

Nevertheless, adoption law in all 28 member states is solely the competence of each EU country. So, for example, although mechanisms exist in all 28 members' states to remove children without consent from their parents, few, if any, are believed to exercise this power to the extent to which the English courts do, a lack of data means a concrete understanding of the bigger picture is hard to decipher.

Despite this, English legislation on adoption and parental consent has been found by the European Court of Human Rights to meet key requirements of European Human Rights Law: that pertain to the right to respect private and family life. As such, adoption in the absence of parental consent is used only in exceptional cases, and necessary for the protection of the child's health and development. Indeed, in the year ending 31 March last year, only 16% of children who left the English care system were adopted.

Children's rights for many years faced an uphill struggle for recognition in the United Kingdom. The Royal Society for the Protection of Animals was set up a full 60 years before a society to protect children's rights (National Society for the Prevention of Cruelty to Children) was established in the UK in 1884. There is certainly a need to review the processes involved in adoption without consent, particularly those with cross-border elements to them. However, we must not lose sight of what should be the key pillar of child protection: preventing cases like Baby P and Victoria Climbie from ever happening again.