Does Article 8 survive adoption?
6 October 2015
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.