Adoption: Post-Legislative Scrutiny - Select Committee on Adoption Legislation Contents

Chapter 3: The Rights of Children and Families

35.  One of the most significant changes contained within the Adoption and Children Act 2002 was to bring the law on adoption into line with the Children Act 1989 by making the child's welfare the paramount,[27] rather than just the first, consideration when making adoption decisions.[28] This change to the law reflects the United Kingdom's international obligations under the United Nations Convention on the Rights of the Child 1989 which includes, in Article 21, specific provision as to the paramountcy of the child's welfare.[29]

36.  English law, however, begins from the premise that children should, whenever possible, be raised within their families of birth. Under section 17 of the Children Act 1989 local authorities are under a duty to "safeguard and promote the welfare of children within their area who are in need; and so far as is consistent with that duty, to promote the upbringing of such children by their families."[30] District Judge Nicholas Crichton put it more succinctly: "Children do belong in [birth] families, if we can achieve that for them."[31] We agree with this sentiment.

37.  The importance of keeping birth families together wherever possible is enshrined in Article 9 of the United Nations Convention on the Rights of the Child[32], as well as in Article 8 of the European Convention on Human Rights (ECHR), which states: "Everyone has the right to respect for his private and family life, his home and his correspondence."

38.  The rights conferred under Article 8 are not, however, without limit. Children have a right to be safe; to live their lives free from neglect and abuse. Under Article 3 of the ECHR, the State has a clear duty to ensure that no child is "subjected to torture or to inhuman or degrading treatment or punishment." The European Court of Human Rights has held that this includes an obligation to remove children from situations of known risk where appropriate. Furthermore, once removed from immediate danger, children cannot be expected to wait indefinitely for their parents to address successfully their harmful behaviour. When children cannot safely be returned to their birth parents and are in need of permanent alternative care outside of the family, it is recognised by the courts that adoption constitutes the most serious interference with the birth parents' right to respect for their family life.[33] The decision that it is in the child's best interests to be placed for adoption therefore merits the most careful scrutiny. A fair balance will need to be drawn between the rights and interests of the birth parents in maintaining their existing family life on the one hand and the conflicting rights and interests of the child in favour of adoption on the other.

39.  This required balancing of interests is secured in the Adoption and Children Act 2002 by two key provisions. First, the welfare checklist enshrined in section 1(4) of the legislation gives specific consideration to the importance of the child's relationship with his or her birth family. Thus, whenever a court or adoption agency comes to a decision relating to the adoption of a child it must have regard, amongst other matters, to the likely effect on the child (throughout his life) of having ceased to be a member of the original family;[34] and the relationship which the child has with relatives, including the likelihood of any such relationship continuing and the value to the child of its so doing, and the wishes and feelings of the child's relatives.[35] Moreover, a child's adoption can only proceed in the absence of parental consent,[36] if the court is satisfied, in accordance with section 52(1) of the Adoption and Children Act 2002, that the parent or guardian cannot be found or is incapable of giving consent, or the welfare of the child requires parental consent to be dispensed with.

40.  We strongly endorse the importance accorded to the right of a child to be raised within his or her family of birth whenever possible. This right is similarly enjoyed by the birth parents. However, the right of the birth parents must not be secured at the expense of the child's safety, health and development. The welfare of the child is, and should remain, the focus of concern.

27   Children Act 1989, section 1 Back

28   The previous welfare test in adoption law had been contained within the Adoption Act 1976, section 6.  Back

29   It is notable that this differs from Article 3 of the UNCRC where the child's welfare, more generally, is made a 'primary consideration'. Back

30   Children Act 1989, section 17 (1) Back

31   Q 697 Back

32   Article 9 of the UNCRC states that: "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence". Back

33   See, for example, Re P (a child) [2008] EWCA Civ 535, where Wall LJ notes that "adoption without parental consent is an extreme-indeed the most extreme-interference with family life."  Back

34   Adoption and Children Act 2002, section 1(4)(c) Back

35   Adoption and Children Act 2002, section 1(4)(f) Back

36   Only the consent of a parent holding parental responsibility is required: see Adoption and Children Act 2002, section 52(6) Back

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