R. and H. v. United Kingdom (no. 35348/06) – Read judgment
This ruling from Strasbourg sheds little light on how Article 8 can help adoption procedure, but it does illustrate how courts and agencies are having to square up to the deepening crisis in adoption rates.
Newspaper and charity campaigns are vocal about this issue but little attention is paid to the very difficult business of balancing the needs of children against those of the biological or (prospective) adoptive parents.
Article 8 is of limited assistance since it requires only that the state should respect the right to family life. All shall have prizes, whether it be the biological parents, the prospective adoptive family, the siblings, or the child in question. This is of course no help to the agencies responsible for assessing children at risk nor to the courts adjudicating the competing interests. Strasbourg has tried to come up with a solution by declaring that where the interests of the child and the interests of the biological parents conflict, the rights of the child should always prevail - Yousef v The Netherlands  1 FLR 210 – but this only reflects the “paramountcy” principle in national law. It doesn’t explain how paramountcy can be found in the interstices of Article 8 itself. So the best Strasbourg can do is to stay its hand and let national authorities get on with it, as it has done in this case.
Adoption: changing trends
The current logjam is usually blamed on public authority ideologues bent on their own programmes of social manipulation. But the problem is due to wider historical developments leading up to the Adoption Act was passed in 1976. The availability of infants for adoption has sunk with the changing attitude to children born out of wedlock, and the number of older children has increased dramatically. It used to be thought that adoption (of an infant or a very young child) should be a “clean break”, and any contact with the natural parents was to be discouraged, to assist in the development of family bonds between the child and its new parents . Now so many more potential adoptees have already formed bonds with their biological parents, however inadequate, a shift in opinion has occurred towards what is termed “openness,” favouring the continuation of contact between the natural parents and the child following adoption.
“Freeing orders”, the pre-adoption process at the centre of this dispute, were brought in as part of this changing climate. It was considered that there was a strong imperative to reduce the prospect of a contest between the prospective adopters and the parents at the adoption stage, which would tend to discourage adopting parents from accepting the children. It was recognised that it was easier to find adoptive parents after a child had been freed. So a mechanism was introduced whereby a court can take action in relation to the adoption of a child where the child’s best interest requires that the parents’ consent be dispensed with. (These orders are still available in Northern Ireland but have been replaced in England and Wales by “placement orders”, which can only be made with the consent of the parent, unless the court considers that consent should be dispensed with). The Northern Irish regime allows for a freeing order to be granted more readily, for example if the court considers that the parents are withholding their consent from the adoption procedure “unreasonably”.
The intervention by Down Lisburn Health and Social Services Trust
The applicants R and H are the biological parents of N, born in Northern Ireland in 2002. H, the mother, had a long history of alcohol problems, including when she was pregnant with N, resulting in the child being removed as H was admitted to an addictions centre. The Trust did this by seeking a freeing order which dispensed with the parents’ consent for adoption proceedings. The trial judge declined to consider the question of post-adoption contact, which he considered should appropriately be left for the judge who heard the application for an adoption order. The applicants contested the freeing order in the High Court, but lost their appeals both to the Court of Appeal and the House of Lords.
The Court of Appeal, rejecting the applicant’s appeal, was satisfied that a freeing order was a proportionate response to the legitimate aim of ensuring the welfare of N, bearing in mind her rights and the rights of H and R and N’s siblings under Article 8. The House of Lords also dismissed the appeal, agreeing with the trial judge that the Trust’s response had been proportionate in the pursuit of the legitimate aim of protecting the welfare and interests of the child.
The UK courts ultimately ordered N’s adoption in April 2007. Despite the freeing order, the parents were joined to proceedings for the adoption order hearing.
Relying in particular on Article 8 , the applicants complained about N’s adoption. They also argued that, procedurally, it was improper for a freeing order to have been made in advance of an adoption order. They contended that it prejudiced their participation in the adoption order hearing
The Court dismissed their application, finding that the freeing order and the subsequent adoption proceedings were a proportionate interference with the applicant’s rights.
The Court’s Reasoning
There was no dispute between the parties that the proceedings described above amounted to an interference with the applicants’ family life within the meaning of Article 8. Nor was it disputed that the interference was in accordance with the law and pursued a legitimate aim, the protection of N’s rights and well-being . The principal issue before the Court was the question whether the domestic authorities’ actions were necessary in a democratic society, in other words whether a fair balance had been struck between the competing interests which were at stake in the domestic proceedings.
As Baroness Hale pointed out in her dissent in the HL, the UK is “unusual” amongst signatory states of the Convention in permitting these freeing orders. The Court of Appeal did rule in 2005 that the exclusion of a mother’s views in similar proceedings was a proportionate response to the child’s best interests, but there seems to be no comparative jurisprudence questioning the very principle of freeing for adoption, or indeed compulsory adoption generally.
The approach of the Strasbourg Court in these cases is to accord states a wide margin of appreciation and it recognises that the need to maintain family ties at all costs cannot always prevail over circumstances. There are occasions when the interests of the child, siblings and parents all conflict, and in such cases the Strasbourg Court has said that the interests of the child must prevail (see ref. to Yousef above).
Two aspects of Article 8′s requirements fell to be considered. First, the procedural requirement that the parents were properly involved in the proceedings involving the child. Second, the substantive obligation that the state respected the parties’ right to family life in making its decisions in regard to the child.
In view of the fact that the Trust had taken all reasonable steps to afford the mother professional and expert help for her alcohol addiction and that the parents had been able to participate in both the freeing order and adoption proceedings, the Court found that the procedural requirements of Article 8 had been fulfilled.
As far as the substantive obligation to respect family life was concerned, the Court concluded that the authorities had not exceeded their margin of appreciation in proceeding with the adoption as they did. Whilst strict scrutiny is called for in a state’s decision to take a child into care and impose further restrictions on parents’ rights (Elsholz v. Germany no. 25735/94, ECHR 371), nevertheless Article 8 does not require that domestic authorities make endless attempts at family reunification; it only requires that they take all the necessary steps that can reasonably be demanded to facilitate the reunion of the child and his or her parents (Pini and Others v. Romania, nos. 78028/01 and 78030/01,  ECHR 275).
If it is in the child’s interests to be adopted, and if the chances of a successful adoption would be maximised by a freeing order, then the interests of the biological parents must inevitably give way to that of the child. The Northern Ireland statutory scheme, as interpreted by the Northern Irish courts, allows for that balance to be struck between those interests in a manner which shows appropriate respect for all those concerned. As such, it is capable of being applied compatibly with Article 8.
In her brief dissent, Judge Kaladyieva doubted whether it is either “necessary and proportionate to sever the links with the family of birth if a new (adoptive) family has not yet been identified”:
From such a viewpoint a “freeing order” seems to facilitate primarily the authorities’ search for candidate-adoptive parents but not necessarily the proper assessment of the child’s best interests or the applicants’ rights under Article 8 as to the moment of the decision for adoption.
That may be so but time is of the essence in these decisions and too much deference to the parties’ conflicting interests under Article 8 should not be allowed to prejudice what is, in the end, an arrangement determining the destiny of the child.
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