Does Article 8 survive adoption?

6 October 2015 by

Image: Guardian

Image: Guardian

H H Keith Hollis

There has been further consideration of potential post-adoption Article 8 rights for natural parents in a judgment by Peter Jackson J in the case of Seddon v Oldham MBC. There are no surprises in the conclusions he reaches.

The judge succinctly deals with the relevant issues in his opening, saying that:

  • The making of an adoption order always brings pre-existing Art. 8 rights as between a birth parent and an adopted child to an end. Those rights arose from and co-existed with the parent-child relationship, which was extinguished by adoption.
  • 51A ACA 2002 does not create or maintain an Art. 8 right as between a birth parent and an adopted child.
  • 52A(4) ACA 2002 is not incompatible with the ECHR.
  • But a public body running a post-adoption letterbox service is obliged under Art. 8 to respect correspondence between a birth parent and an adopted child and adopters, the obligation arising from the nature of the correspondence and not from the former parent-child relationship.

The sad history will not be unfamiliar to practitioners: the mother had spent much of her own childhood in care, in a succession of foster homes. Her child was born when she was 20, the father playing little or no part in the child’s life (although he was part of the mother’s wider family). The mother soon had difficulty coping. There was an unsuccessful residential assessment, and, following an interim care order, the child (by now around 6 months old) was placed with foster parents in a concurrency programme.

Eight months later, care and placement orders were made. There was “sustained” opposition to the adoption on the mother’s part and annual letter box contact was approved, although no contact order was made at the time of the subsequent adoption order. Two subsequent attempts to appeal the orders failed.

Three months after the adoption order an application by the mother for leave to apply for a contact order was refused. Her application for leave to appeal that order was subsequently dismissed by Lord Justice Thorpe.

In the meantime the mother had gone to the European Court of Human Rights, but her petition was ruled inadmissible (KS v United Kingdom Application No. 62110/10)

She made a first application to the High Court for Article 8 declarations. These were dismissed. She brought civil proceedings against the Council for breach of statutory duty and negligence, relating to her own time in care. The proceedings were dismissed, and a subsequent application for leave to appeal refused.

There were problems over the letter box contact detailed in the judgment, and it seems that it was these that precipitated the present proceedings. There was clearly no doubt about this mother’s determination to try and overturn the care arrangements that had been ordered by the court.

The judgment contains a useful and succinct analysis of the status of s.67 ACA 2002. As well as the ECHR, Peter Jackson J considered The European Conventions on the adoption of children, and a number of decisions from the ECHR, concluding that “these decisions [accordingly] make clear that the termination of the legal relationship as between the birth parent and the child also ends their family life under Art. 8”.

Perhaps the most useful part of that section of the judgment relating to Article 8 rights is when the judge gets to grips with the notion of family life as it existed in this particular case: he dismissed the mother’s notion that – it seems due to the blood tie – the child in fact now had three parents, saying that the child;

“has two parents, not three. Family life between [the mother and the child] came to an end with the adoption and has certainly not been recreated since then. [The child] is now aged six and has not had contact with [the mother] for five years. There are no ties of any kind between them. There cannot be any interference with family life that does not exist.”

The judge does not appear to have been referred to the ECtHR case of I.S v Germany (31021/08), where the final judgment was handed down in October 2014. The ECtHR reiterated “that biological kinship between a natural parent and a child alone, without any further legal or factual elements indicating the existence of a close personal relationship, might be insufficient to attract the protection of Article 8” but they raised the possibility that what subsists or remains after adoption could merely be considered as “intended family life” and as such goes no further than being an aspect of “private life”.

All this we have come to learn, but, as so often before, both courts find themselves having to skirt round that direct point, so often at the forefront of the thinking of natural parents (and, one may add, adopting parents): where does this leave the blood tie? What is the legal significance after adoption of “biological kinship”?

In the present case, it followed from the judge’s answers that he dismissed the mother’s application for declarations:
(a) That she and the child have a right to respect for their private and family life and correspondence, notwithstanding the making of an adoption order.

(b) That the relevant local authority, as a public body exercising a public function, can be held accountable when running its post-adoption letterbox service, and that it acted unlawfully on one occasion by redacting and refusing to forward her correspondence via its letterbox service, and should be replaced by another service provider.

(c) And that s. 51A(4) ACA 2002 is incompatible with the ECHR.

The judge indeed declared (if such declaration was indeed necessary) that:

(a) All pre-existing Art. 8 rights between the natural mother and the child were extinguished by the child’s adoption.

(b) In running its post-adoption contact service, the Council, as it (surely inevitably) conceded at the hearing, is performing a public function but that in redacting or not forwarding correspondence sent via its letterbox service on one occasion its actions were lawful.

His Honour Keith Hollis is a retired Circuit Judge and an accredited mediator at 1 Crown Office Row.

5 comments


  1. Adopter X says:

    Reblogged this on Adopter X.

  2. But the problem is that Article 8 extends beyond simply ‘family life’ to include private life, psychological integrity – the right to identity, to know ourselves etc. I did not see any discussion of this element of Article 8 in the judgment.

    Adoption changes a person’s legal status. It does not change their biology. It does not change the fact that when they look in the mirror, the face that looks out is not one they find reflected in the faces of their adoptive parents. We know that many people have a strong drive to know their origins and where they come from – if we don’t know this, why do we have such a focus on ‘life story’ work for looked after children, why do we permit people to register their details so that they can find each other later in life?

    It may be that had the Judge considered this child’s right to psychological integrity he would have dismissed it as without weight in the general scheme of things. But he did not even consider it, as I read the judgment.

    If something is not even considered, then we cannot know on reading the judgment what weight was given to this, if any. How can we then have confidence that the Judge has made a decision that is proportionate?

    And I simply cannot understand why it was thought appropriate to name this mother in the way that was done, unless it was to ‘shame’ her into ending her campaigning.

  3. daveyone1 says:

    Reblogged this on World4Justice : NOW! Lobby Forum..

  4. truthaholics says:

    Reblogged this on | truthaholics and commented:
    “But a public body running a post-adoption letterbox service is obliged under Art. 8 to respect correspondence between a birth parent and an adopted child and adopters, the obligation arising from the nature of the correspondence and not from the former parent-child relationship.”

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: