Adoption through a human rights lens

Questioning adoption does not mean arguing that children should never be removed from unsafe families. Sometimes they must be, but why must that child also cease, in law, to belong to the family they were born into?

English adoption law does more than place a child with new parents, it creates one legal family while extinguishing another. That is an over-reach that deserves more scrutiny than it gets.

Adoption debates are often presented as a contest between the rights of birth parents and the welfare of children. There is rarely recognition that the child has rights too. Article 8 of the European Convention on Human Rights (and of the UK-wide Human Rights Act) protects private and family life. Adoption makes a profound and permanent intervention into a person’s family relationships and legal identity, usually at an age when they have no meaningful ability to consent to it. We are comfortable asking whether removing a child from their parents is necessary. We should also be asking, how much legal severance is necessary?

This becomes more pertinent as the child grows up. A court may conclude that a five-year-old cannot safely live with their parents and needs permanence elsewhere. Should that decision hold at 18, 30 or 60, with no meaningful way for the now adult to reconsider it themselves?

The Supreme Court’s recent judgment in In the matter of X and Y (Children: Adoption Order: Setting Aside) brings the issue into sharp focus. X and Y were adopted when they were four and five. Later, both left their adoptive mother’s home and returned to members of their natural family. Their adoptive mother applied to revoke the adoption orders. Their natural mother supported the application and so did both adoptees.

The Supreme Court held unanimously that the High Court has no inherent power to revoke a valid adoption order on welfare grounds. Adoption was deliberately constructed by Parliament to be final and permanent.

The Judgment rehearses familiar policy reasons for keeping adoption irrevocable. If adoption can later be challenged, it might damage adopters’ sense of lifelong commitment and deter them from coming forward. It also might affect adopted children’s sense of security. Yet adopted children have no real security, as the recent publicity about the numbers of adoption ‘disruptions’ and ‘breakdowns’ shows.

There is something deeply flawed about a system which insists that adoption must be permanent so that adults feel secure enough to enter it, while giving the person who is subject to it no power to leave. Why should protecting confidence in the institution of adoption automatically outweigh the right of an adult to take up their natural and inherent identity?

The history of adoption should make us wary of certainty. Previous generations were confident that secrecy, sealed records and severed relationships were best for children. We now understand the profound harm that resulted. The lesson is not that adoption has changed since then. It is that whole systems can become convinced that what they are doing is both necessary and good while causing serious and lasting injury.

We should be asking whether lifelong legal severance and irrevocability are necessary to achieve a safe early environment. Can different forms of permanence protect children while preserving their original legal identity and family relationships?

And, most fundamentally, if adoption is genuinely designed around the lifelong welfare of the adoptee, why is the adoptee the one person who can never decide that it should end?