The Politics of Adoption: International Perspectives on Law, Policy & Practice

510 Pages·2009·26.88 MB·English

by  Kerry O'Halloran

Kerry O'Halloran
The Politics of Adoption
International Perspectives on Law,
Policy & Practice
Second edition
Springer
The Politics of Adoption
Second edition
Kerry O'Halloran
Australian Centre of Philanthropy and Nonprofit Studies
Queensland University of Technology
Brisbane, QLD
Australia
[email protected]
ISBN: 978-1-4020-9151-3 e-ISBN: 978-1-4020-9152-0
Library of Congress Control Number: 2008937453
© 2009 Springer Science + Business Media B.V.
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To Molly
Acknowledgements
That The Politics of Adoption made it into a second edition owes a great deal to
Professor Myles McGregor-Lowndes1 and to my other colleagues at the Australian
Centre of Philanthropy and Nonprofit Studies. For their support and companionship
I remain extremely grateful.
The many academics, senior managers and others, whose contribution to the first
edition did much to ensure the appearance of the second, have previously been
acknowledged but the debt of gratitude for their efforts continues.2 This edition has
similarly benefited from the kindness of those who took the time and trouble to read
chapters and offer comments. The geographic and cultural spread of their contribu-
tions bears testimony to the international nature of this exercise. The sense of a
shared collegiate endeavour, of time and effort selflessly invested by busy people to
help me get this right, was very encouraging. While not suggesting that they have
in any way 'signed off' these chapters, I do acknowledge that their contributions
were enormously helpful. Although it is not possible to render a full account of the
debt owed to so many it would be quite wrong not to acknowledge the particular
contribution of a few.
Ursula Kilkelly3 did much to broaden my outlook with her observations relating
to the chapters on human rights and intercountry adoption. Geoffrey Shannon4
made very helpful comments in respect of the chapter on Ireland, as he had done in
1 Professor and Director, Australian Centre of Philanthropy and Nonprofit Studies, Queensland
University of Technology, Brisbane, Australia.
2 Including the following: Deborah Cullen, Secretary of the Legal Group, British Association for
Adoption & Fostering (BAAF), London; Greg Kelly, Senior Lecturer, School of Social Work,
Queens University, Belfast, Northern Ireland; Patrick Parkinson, Professor and Associate Dean,
Faculty of Law, University of Sydney, Australia; Lee Ann Basser, Associate Professor, La Trobe
University, Bundoora, Victoria, Australia; Ann Estin, Professor of Law, University of Iowa, US;
Charles Putnam, JD and Co-Director, Justiceworks, University of New Hampshire, US; and
Barbara Woodhouse, David H. Levin Chair in Family Law, University of Florida and John
Triseliotis, Emeritus Professor, University of Edinburgh, both of whom were particularly
supportive.
3 Senior Lecturer, Faculty of Law, University College Cork, Ireland.
4 Chairman, Adoption Board, Shelbourne House, Shelbourne Rd., Ballsbridge, Dublin 4, Ireland.
vii
viii Acknowledgements
the previous edition. Stephen Cretney5 brought his wealth of family law knowledge
to bear on the chapter dealing with the adoption process in England & Wales while
the expertise of Joan Heifetz Hollinger6 on adoption law and practice greatly
assisted completion of the U.S. chapter. For their assistance in improving the
chapter on adoption in Australia I am indebted to Frank Bates,7 who commented
from a hospital bed, and to his colleague Neville Turner.8 I owe much to Khylee
Quince9 for enlightening me in relation to adoption in the context of Indigenous
Peoples. Werner Menski10 patiently corrected my assessment of adoption in an
Islamic context while Satoshi Minamikata11 was assiduous in his struggle to ensure
that I grasped some of the intricacies of the law relating to adoption in Japan. My
thanks also to Anna Singer12 and Laurence Francoz-Terminal13 for their advice on
adoption in Sweden and France respectively.
Despite the best efforts of all the above, there will nevertheless be inaccuracies,
gaps and inconsistencies. These, together with all views expressed are, sadly,
inescapably attributable to the author who apologises unreservedly for lack of due
diligence and for any confusion or offence inadvertently caused.
Thanks, Elizabeth, for once again tolerating this self indulgence.
I am also most grateful to Springer, particularly to Natalie Reiborn, editor, for
the vote of confidence that resulted in this second edition.
5 Emeritus Fellow, All Souls College, University of Oxford, England.
6 Lecturer in Residence, Berkley Law, University of California, USA.
7 Professor of Law, Faculty of Business and Law, University of Newcastle, Australia.
8 Professor of Law, Monash University, Melbourne, Australia.
9 Lecturer, Faculty of Law, University of Auckland, New Zealand.
10 Professor of South Asian Laws, School of Oriental and African Studies, University of London,
England.
11 Professor of Law, Faculty of Law, Niigata 950-218, Japan.
12 Universitetslektor/Associate Professor, Uppsala Universitet, Faculty of Law, Uppsala, Sweden.
13 Faculty of Law, Universite Jean Moulin, Lyon 3, France.
Contents
Introduction 1
1 Adoption: Concept, Principles, and Social Construct 7
1.1 Introduction 7
1.2 Definitional Matters and Related Concepts 7
1.2.1 Legal Definition 8
1.2.2 Concepts 8
1.3 Social Construct 10
1.3.1 Adoption and the Inheritance Motive 10
1.3.2 Adoption and the Kinship Motive 11
1.3.3 Adoption and the Allegiance Motive 11
1.3.4 Adoption and the 'Extra Pair of Hands' Motive 12
1.3.5 Adoption and the Welfare Motive 12
1.3.6 Adoption and the Childless Couple Motive 13
1.4 Adoption in England: Historical Context 13
1.4.1 The Common Law: Parental Rights and Duties 14
1.4.2 The Poor Laws 17
1.4.3 Pressures for Change; End of the 19th Century 18
1.5 Adoption Legislation: Evolving Principles and Policy 20
1.5.1 The Adoption Act 1926 21
1.5.2 The Adoption of Children (Regulation) Act 1939 22
1.5.3 The Adoption Act 1949 22
1.5.4 The Children Act 1975 23
1.5.5 The Adoption Act 1976 23
1.5.6 The Children Act 1989 24
1.5.7 Adoption (Intercountry Aspects) Act 1999 24
1.5.8 The Adoption and Children Act 2002 24
1.6 Legal Context: Evolution of a Modern Statutory Process 26
1.6.1 The 'Contract' 27
1.6.2 The Parties 28
1.6.3 The Principles 33
1.6.4 Contract or Gift Relationship 38
1.7 Conclusion 39
ix
x Contents
2 The Changing Face of Adoption in the United Kingdom 41
2.1 Introduction 41
2.2 Modern Adoption Trends in the United Kingdom 42
2.2.1 From Traditional Model to Modern Variants 42
2.2.2 Causes of Change 47
2.2.3 Consequences for the Adoption Process 50
2.3 Family Adoption 54
2.3.1 Trends in Annual Orders 54
2.3.2 Adoption by Birth Parent and Spouse 55
2.3.3 Adoption by Grandparent 56
2.3.4 Other Relative Adoptions 56
2.3.5 The Welfare Principle, the Blood Link
and Family Adoptions 57
2.4 Agency Adoption 59
2.4.1 Trends in Annual Orders 59
2.4.2 Voluntary Society Adoptions 60
2.4.3 Child Care Adoptions 60
2.4.4 The Welfare Principle and Agency Adoptions 66
2.5 Intercountry Adoptions 66
2.5.1 Trends in Annual Orders 67
2.5.2 Transracial Adoptions 67
2.5.3 The Welfare Principle and Intercountry Adoptions 67
2.6 A Coherent Legal Model for Adoption Practice 69
2.6.1 Classification of Adoption by Type 69
2.6.2 Social Role 70
2.6.3 Legal Functions 71
2.7 Conclusion 71
3 The Legal Functions of Adoption 73
3.1 Introduction 73
3.2 Regulating the Adoption Process 74
3.2.1 The Adoption Process 74
3.2.2 Role of the Judiciary or Other Determining Body 76
3.2.3 Role of Administrative Agencies 76
3.3 Thresholds for Entering the Adoption Process: Eligibility
and Suitability Criteria 78
3.3.1 The Child 78
3.3.2 The Birth Parent/s 80
3.3.3 The Adopters 81
3.4 Pre-placement Counselling 82
3.4.1 The Birth Parent/s 83
3.4.2 The Child 83
3.4.3 The Adopters 84
Contents xi
3.5 Placement Rights and Responsibilities 84
3.5.1 Placement Decision 84
3.5.2 Placement Supervision 85
3.6 The Hearing and Issue of Order/s 86
3.6.1 Where Consent Is Available 86
3.6.2 Where Consent Is Not Available 86
3.6.3 The Orders Available 87
3.7 Thresholds for Exiting the Adoption Process 88
3.7.1 The Welfare Interests of the Child 88
3.8 The Outcome of the Adoption Process 89
3.8.1 Adoption Orders and Third Party Applicants 89
3.8.2 Adoption Orders and First Party Applicants 90
3.8.3 Adoption Orders and Relatives 90
3.8.4 Other Orders 90
3.9 The Effect of an Adoption Order 90
3.9.1 Effect on the Child 91
3.9.2 Effect on the Birth Parent/s 91
3.9.3 Effect on the Adopters 92
3.10 Post-adoption Support Services 92
3.10.1 Child Care Adoptions 93
3.11 Information Disclosure, Tracing and Re-unification Services 93
3.11.1 Information Rights 94
3.11.2 Information Disclosure Duties 94
3.11.3 Tracing and Re-unification Services 95
3.12 Adoption Within Family Law 95
3.12.1 Adoption in Its Traditional Family Law Context 96
3.12.2 Adoption in the Context of Modern Public
Law Proceedings 96
3.12.3 Adoption in the Context of Modern Private
Law Proceedings 97
3.12.4 Adoption and Contemporary Family Law Principles 98
3.13 Conclusion 99
4 Adoption, the Conventions and the Impact of the European
Court of Human Rights 101
4.1 Introduction 101
4.2 The European Convention on the Adoption of Children 1967 102
4.2.1 The European Convention on the Adoption
of Children 2008 102
4.2.2 The Council of Europe 103
4.3 The United Nations Convention on the Rights of the Child 1989 103
4.3.1 Article 2—The Non-discrimination Principle 104
4.3.2 Article 3—The Best Interests of the Child
Is a Primary Consideration 104
xii Contents
4.3.3 Article 7—The Right of the Child to Know
Their Identity 104
4.3.4 Article 12—The Right of the Child to Express an
Opinion in Administrative and Judicial
Proceedings 105
4.3.5 Articles 13 and 14—The Right of the Child
to Self-determination, Dignity, Respect, Non-interference
and the Right to Make Informed Decisions 105
4.3.6 Article 18—The Primary Responsibility
for the Upbringing of a Child Rests with the Parent/s 106
4.3.7 Article 20—State Duty to Protect Child Without
Family 106
4.3.8 Article 21—Adoption Shall Ensure That the Best Interests
of the Child Shall Be the Paramount Consideration 107
4.3.9 Article 25—Adoption Placements Must Be Subject
to Periodic Review 107
4.3.10 Article 27—Every Child Is Entitled to a Reasonable
Standard of Living 108
4.3.11 Article 35—Prevention of Trafficking in Children 108
4.3.12 Articles 44 and 45—Every State Is Required to Audit,
Progress and Publish a Report 108
4.4 The Hague Convention on Protection of Children
and Co-operation in Respect of Intercountry Adoption 1993 109
4.5 The European Convention for the Protection of Human Rights
and Fundamental Freedoms 1950 109
4.5.1 Article 6—Everyone Is Entitled to a Fair and Public
Hearing Within a Reasonable Time by an Independent
and Impartial Tribunal Established by Law 110
4.5.2 Article 8—The Right to Respect for Private
and Family Life 113
4.5.3 Article 12—The Right to Marry and Found a Family 125
4.5.4 Article 14—Prohibition of Discrimination 126
4.6 Conclusion 127
5 Intercountry Adoption and the Hague Convention 129
5.1 Introduction 129
5.2 Definitions 130
5.2.1 Full and Simple Adoptions 130
5.2.2 Intercountry Adoption 130
5.2.3 Overseas Adoption 131
5.3 Background 132
5.3.1 Needs 133
5.3.2 The Countries 136
5.4 The Law: Developments Leading to an International Framework 139
5.4.1 The Common Law 140