Other Countries

Children’s wishes and feelings about their habitual residence.

This is a post by Sarah Phillimore

What happens if a local authority wants to make an application for a care order regarding a child who comes from another country? The Courts of England and Wales only have jurisdiction to make care orders if children are ‘habitually resident’ in the UK – mere physical presence is not enough. Although the Supreme Court have repeatedly said this is a ‘simple matter of fact’ it is clear that in practice it is not always easy to establish a child’s habitual residence.

I have no idea what the impact of Brexit will be on any of this; watch this space. – EDIT post Brexit we will rely on the Hague Convention 1996.

What power does the court have to make orders about children who come from another country?

Jurisdiction derives from habitual residence.

The following basic principles can be derived from these authorities Re F (A Child) [2014] EWCA Civ 789; Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] FLR:

the jurisdictional reach of the courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision.
Jurisdiction was normally determined by the habitual residence or physical presence of the child.
However, this was fundamentally modified by the Regulation Brussels II revised (BIIR) which applies to determine the jurisdiction of the English court in care proceedings, irrespective of whether the other country is a Member State of the European Union: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, para 30, and In re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2013] 3 WLR 1597, para 18..
The basic principle, set out in Article 8(1) of BIIR is that jurisdiction is founded on habitual residence. It follows that the courts do not have jurisdiction to make a care order simply because a child is physically present.
The court must deal with this matter at the outset. The court should set out explicitly the basis upon which it has accepted or rejected jurisdiction. A declaration with regard to habitual residence cannot be made by default, concession or agreement but only if the court is satisfied by evidence.
If it is necessary to address the issue before there is time for proper investigation and determination, the following suggested recital should be used: “Upon it provisionally appearing that the child is habitually resident…”.

Habitual residence is a ‘matter of fact’.

The Supreme Court have repeatedly declared that ‘habitual residence’ is no more than a ‘simple fact’ which should be determined without any gloss. That arguably optimistic declaration has to be set against the number of times in fairly recent history that cases involving habitual residence have come before the Supreme Court – suggesting that determination of this ‘simple fact’ is a far from simple exercise and reflects the greater mobility of people in recent times and the wide variety of circumstances which impact on families, their composition and their location.

The basic proposition is that habitual residence is established by the degree of integration by the child is a ‘social and family environment’. See A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] ‘

habitual residence can in principle be lost and another habitual residence acquired on the same day.
habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
the test adopted by the European Court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question. This is the preferred test.
Factors to take into account when assessing integration are
i. The duration, regularity, conditions and reasons for being in the country
ii. The child’s nationality
iii. The place and conditions of attendance at school
iv. Linguistic knowledge
v. Family and social relationships in the country
The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
it is possible that a child may have no country of habitual residence at a particular point in time.
For those children who have no habitual residence, Article 13 of Brussels II provides that where a child’s habitual residence cannot be established and jurisdiction cannot be determined under Article 12, the courts of the Member State where the child is present have jurisdiction.

Habitual residence requires physical presence.

Physical presence is a clear necessary precursor to a finding of habitual residence. In In the Matter of A (Children) (AP) [2013] UKSC 60 the Supreme Court by a majority agreed that a new born baby could not claim habitual residence in the UK even though it was his mother’s place of habitual residence and she had been coerced into leaving the country to give birth. However the Supreme Court agreed it was possible in such extreme circumstances to order the child’s return to the UK using the inherent jurisdiction. See also W v X Case C‐499/15, [2017] Fam 305, [2017] 2 FCR 389.

The Court of Justice of the European Union (CJEU) ruled in 2017 that Article 11(1) of the Brussels II bis Regulation:

must be interpreted as meaning that, in a situation in which a child was born and has been continuously residing with his or her mother for several months in accordance with the joint agreement of the parents in a Greece, while in Italy they had their habitual residence before birth, the initial intention of the parents as to the return of the mother accompanied by the child in Italy cannot allow the child to be regarded as having his or her habitual residence in Italy. The CJEU concludes that in such a situation the refusal of the mother to return to Italy accompanied by the child cannot be regarded as an ‘unlawful displacement or non-return’ within the meaning of Article 11(1).

This case seems to resolve the dilemma, dividing national courts, as to whether the physical presence of the child in the territory of a state is a necessary precondition for establishing the child’s habitual residence

Children only recently present or intermittently present in the jurisdiction

These situations require closer examination in light of the requirement of integration into a social or family environment as necessary to establish the ‘fact’ of habitual residence. It is clear that the position of young and dependent children cannot easily be seen in isolation from the position of their primary carer. See A v A (Children: Habitual Residence) [2013] UKSC 60: “The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent.”

However this does not mean that the perceptions of older children about where they habitually reside are irrelevant. See Re: LC (Reunite: International Child Abduction Centre intervening) [2014] UKSC 1.[43] Lord Wilson: It will be clear from my formulation of the question in para 1 above that in my view it is, in principle, the state of mind of adolescent children during their residence in a place that may affect whether it was habitual.

However, judicial dicta from other authorities does not support ‘state of mind’ as determinative.

See Re R (A Child) [2015] EWCA Civ 674 where the Court of Appeal considered the circumstances of a 4 year old girl S. She was born in 2010 in Morocco to an American mother, who had lived in England since the age of 13, and a Moroccan father. Shortly, after her birth, the mother travelled to England and fraudulently registered the birth in Kent. Thereafter, she travelled to and from various locations before returning to the UK in March 2013. In October 2013 S suffered serious injuries and was placed in foster care. The local authority did not commence care proceedings until April 2014.

Given by the time protective measures had been taken S and her mother had been living in the UK for over a year, there seems little doubt as a matter of fact that S was habitually resident ‘at the relevant time’ i.e. the making of the care order application but it was argued on behalf of the father that S’s life had been so unhappy with a neglectful mother, that it could not be said she was ‘integrated’ into a social environment and therefore her habitual residence was in fact Morocco.

Mr Justice Hayden decided that the court had jurisdiction to make a care order with respect to S on the basis that S’s habitual residence was, and had been throughout her life, the United Kingdom. The father’s appeal was dismissed. The CoA were critical of the judge’s finding that S had been ‘habitually resident in the UK all her life’ as all that was needed was a finding that S had habitual residence at the relevant time. However, his decision was not ‘perverse’ given the complexities of this case, including the dishonesty of the parents and the mother’s ‘frequent and erratic’ changes of location.

Mr Justice Hayden at first instance said this about integration

‘Integration’ as a concept involves a fusion of both the factual and the emotional, it is where a child feels settled, secure, happy and where the focus of his interests and attachments lie. It is not merely geographical, identifying habitual residence requires much greater nuance than that, drawing inferences from facts, the parents’ conduct, the feelings a child communicates and what the child may say. Lord Wilson encapsulated the point in Re LC (supra) at para 37 emphasising that integration encompasses more than the ‘surface features’ of a child’s life.”

This did not entirely meet with the approval of the Court of Appeal: McFarlane LJ commented:

“When determining habitual residence there is no requirement that, to be sufficient to support a finding, the individual needs to be happy, well cared for or free from abuse. The ‘social and family environment’ into which a child might be integrated may include both positive and negative factors. These will not be irrelevant.”

Thus it is conceded that it is not possible to claim that any period of time spent in another country during which a child was unhappy must then automatically preclude a finding of habitual residence in that country.

Date to determine habitual residence

See the decision of Moylan LJ in London Borough of Hackney v P & Ors (Jurisdiction : 1996 Hague Child Protection Convention) (Rev1) [2023] EWCA Civ 121, which sets out that in order to provide clarity and certainty, this should initially be determined by reference to the date on which proceedings were commenced.

Law regarding the habitual residence of a baby

The relevant legal framework following the UK’s departure from the European Union is set out in the Hague Convention. The relevant provisions for the purposes of this decision are Articles 5 and 7.

Article 5 provides:

1 The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property.

2 Subject to Article 7, in case of a change of the child’s habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.

Article 7 states:

1 In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and

each person, institution or other body having rights of custody has acquiesced in the removal or retention; or

the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.

2 The removal or the retention of a child is to be considered wrongful where:

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

3 So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.

There have been a large number of reported decisions on the question of habitual residence. Mr Austin refers to the case of Re B (A Minor) (Habitual Residence) [2016] EWHC 2174, and Miss Phillimore to A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC60.

The relevance of both authorities was confirmed in the more recent Court of Appeal decision of Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659 where it was said

Habitual Residence

I have referred above to what Hayden J said in Re B, at [17(i)] and [17(x)]. The former derives from what was said in A v A which, in turn, derived from what was said by the CJEU in Proceedings brought by A [2010] Fam 42, at [44], namely that:

“the concept of “habitual residence” under article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment.”

It is also right to note that Lady Hale referred to this in A v A, at [54(iii)], as being the “test adopted by the European Court”.

It is clear, however, not only from Proceedings brought by A itself but also from many other authorities, that this is a shorthand summary of the approach which the court should take and that “some degree of integration” is not itself determinative of the question of habitual residence. Habitual residence is an issue of fact which requires consideration of all relevant factors. There is an open-ended, not a closed, list of potentially relevant factors.

In Proceedings brought by A, the CJEU had earlier dealt with the issue at greater length, as follows:

“[37] The “habitual residence” of a child, within the meaning of article 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case.

[38] In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.

[39] In particular, the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.

[40] As the Advocate General pointed out in para 44 of her opinion, the parents’ intention to settle permanently with the child in another member state, manifested by certain tangible steps such as the purchase or lease of a residence in the host member state, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that state.

[41] By contrast, the fact that the children are staying in a member state where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that state.

[42] In the light of the criteria laid down in paras 38-41 of this judgment and according to an overall assessment, it is for the national court to establish the place of the children’s habitual residence.”

The broad nature of the analysis can also be seen from Lady Hale’s later comments (in a minority judgment but reflecting, on this issue, the majority judgment of Lord Wilson) in In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] AC 1038, when she referred, at [59], to whether the residence had “the necessary degree of stability” and when she said, at [60]:

“All of these factors feed into the essential question, which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed “habitual”.” (emphasis added)

The same can be seen from what Lord Reed said in Re R:

“[17] As Baroness Hale DPSC observed at para 54 of A v A, habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses on the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question. The social and family environment of an infant or young child is shared with those (whether parents or others) on whom she is dependent. Hence it is necessary, in such a case, to assess the integration of that person or persons in the social and family environment of the country concerned. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.”

I refer to the above, not to put forward any gloss on the meaning of habitual residence, which the Supreme Court cautioned against in In re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 (“Re B 2016”), at [46], but simply to demonstrate that “some degree of integration” is not a substitute for the required global analysis.

I would add that, self-evidently, a test of whether a child had “some degree of integration” in any one country cannot be sufficient when a child might be said to have some degree of integration in more than one State. This is why, as referred to in my judgment in Re G-E (Children) (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] 2 FLR 17 (“Re G-E”), at [59], the “comparative nature of the exercise” requires the court to consider the factors which connect the child to each State where they are alleged to be habitually resident. This is reflected in Mr Tyler’s written submissions when he referred to the relevance of a child’s “degree of connection” with the State in which he/she resided before they arrived in the new State.

In Re G-E, I also quoted the “expectations” set out by Lord Wilson in Re B 2016, at [46], which bear repeating, namely:

“(a) the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;

(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and

(c) were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.”

I have already dealt with the legal approach to habitual residence at some length in this judgment but, finally, I would refer to In re B (A Child) (International Centre for Family Law, Policy and Practice intervening) [2020] 4 WLR 149 when, at [83]-[89], in addition to Re B 2016, I referred to the CJEU’s decision of Proceedings brought by HR (with the participation of KO) (Case C-512/17) [2018] Fam 385 and to Black LJ’s (as she then was) judgment in In re J (A Child) (Finland) (Habitual Residence) [2017] 2 FCR 542 (“Re J”). Black LJ, at [57], referred to “the relevance of the circumstances of a child’s life in the country he has left as well as the circumstances of his life in his new country” and, at [62], she said:

“What is important is that the judge demonstrates sufficiently that he or she has had in mind the factors in the old and new lives of the child, and the family, which might have a bearing on this particular child’s habitual residence.”

51 In J v E (Habitual Residence) [2024] EWHC 196 MacDonald J attempted to distil these principles for the benefit of “the busy judge”:

Each of the decisions summarised above makes clear the importance of the court examining the degree of integration of the child into a social and family environment when determining habitual residence. The judgment of the Court of Appeal in this case simply recognises that although, in circumstances where full integration is not required, some degree of integration can establish habitual residence, it must still be demonstrated to the satisfaction of the court that the degree of integration contended for in the given case is sufficient to reach that conclusion. In short, “some degree of integration” must still be demonstrated to be sufficient integration if it is to establish habitual residence. Determining whether that is the position requires a global analysis of all of the relevant circumstances specific to the individual case.

Where then does this plethora of authority on the concept of habitual residence leave the busy judge who is required to determine the preliminary issue of jurisdiction, without that determination “becoming an unworkable obstacle course, through which the judge must pick his or her way by a prescribed route or risk being said to have made an unsustainable finding?” Reading the foregoing authorities together, it is tolerably clear that the task of determining habitual residence falls to be discharged by the court asking itself whether, having regard to all the relevant circumstances and as a matter of fact, the subject child has achieved a degree of integration in a social and family environment in the country in question sufficient for the child to be habitually resident there. That is the test I have adopted in this case.

The authorities further make clear that in deciding in a given case whether the degree of integration is sufficient to establish habitual residence, i.e. whether the “some” is enough, certain matters may inform the court’s global analysis of the child’s situation in, and connections with, the state in which he or she is said to be habitually resident for the purpose of determining whether a sufficient degree of integration exists. These non-exhaustive considerations, to paraphrase Lord Wilson in Re B (A Child) (Reunite International Child Abduction Centre Intervening), may include the following:

i) The factual inquiry is centred throughout on the circumstances of the child’s life that are most likely to illuminate his or her habitual residence. It is the child’s habitual residence which is in question and the child’s integration which is under consideration.

ii) The meaning of habitual residence is shaped in the light of the best interests of the child, in particular on the criterion of proximity. Proximity in this context means the practical connection between the child and the country concerned.

iii) It is not necessary for a child to be fully integrated in a social and family environment before becoming habitually resident.

iv) The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day. There is no requirement that the child should have been resident in the country in question for a particular period of time.

v) It is the stability of a child’s residence as opposed to its permanence which is relevant. This is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.

vi) Relevant matters can include the duration, regularity and conditions for the stay in the country in question; the reasons for the parents move to and the stay in the jurisdiction in question; the child’s nationality; the place and conditions of attendance at school; the child’s linguistic knowledge; the family and social relationships the child has; whether possessions were brought; whether there is a right of abode; and whether there are durable ties with the country of residence or intended residence.

vii) Where there are competing jurisdictions advanced as the child’s habitual residence, the comparative nature of the exercise requires the court to consider the factors which connect the child to each State where they are alleged to be habitually resident.

viii) Where there are competing jurisdictions advanced as the child’s habitual residence, the circumstances of the child’s life in the country he or she has left as well as the circumstances of his or her life in the new country will be relevant. What is important is that the court demonstrates sufficiently that it has in mind the factors in the old and new lives of the child, and the family, which might have a bearing on the subject child’s habitual residence.

ix) The deeper the child’s integration in the old state, probably the less fast his or her achievement of the requisite degree of integration in the new state. Likewise, the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his or her achievement of that requisite degree.

x) In circumstances where all of the central members of the child’s life in the old state to have moved with him or her, probably the faster his or her achievement of habitual residence. Conversely, where any of the central family members have remained behind and thus represent for the child a continuing link with the old state, probably the less fast his or her achievement of habitual residence.

xi) In circumstances where the social and family environment of an infant or young child is shared with those on whom he or she is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents) in the social and family environment of the country concerned. In respect of a pre-school child, the circumstances to be considered will include the geographic and family origins of the parents who effected the move.

xii) A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for her. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused.

xiii) Parental intention is relevant to the assessment, but not determinative. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely. Parental intent is only one factor, along with all other relevant factors, that must be taken into account when determining the issue of habitual residence. It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent.

Conclusions

All of these discussions, while interesting, serve most usefully in my submissions to reflect the profound difficulties of applying general principles to the probably infinite variety of circumstances in which families find themselves.

I suggest that a pragmatic approach must be taken. The importance of habitual residence is clearly underpinned by asking ‘what jurisdiction is best able to make decisions about a child’s welfare’. And that jurisdiction is usually the one where the child actually lives or has spent the most time. However, the court will need to look beyond this starting point and the wishes and feelings, particularly of older children, may well be relevant.

A.H. and Others v the Russian Federation

A case about adoption and the best interests of children.

Application no. 6033/13

Judgment in this case was circulated on 17th January 2017. It involved 16 applications against the Russian Federation by 45 US citizens and involved 27 children. The claimants had all been in the final process of adopting Russian children when in 2013 the Russian Federation imposed an unexpected and swift ban on any adoption by US Citizens.

The case ended with the ECtHR agreeing that US parents had been discriminated against and awarding a small amount of damages as ‘just satisfaction’. The arguments about the rights and wrongs of the ban on adoption by US citizens were wide ranging and illustrate, yet again, that the rights of individual children are very often lost in the competing political and social arguments made by adults.

The saddest part of the judgment is where the court notes that the peremptory ban on adoption lead to many of the children remaining in orphanages for months, even years. Some remain in orphanages still.

Background to the claim

The death of Dima Yakovlev in 2008 had led to an outcry in Russia and concern over ill-treatment of other Russian children who had been adopted by American citizens. Dima died after being left in a car for 9 hours by his American adoptive father, who was later acquitted of involuntary manslaughter. On 1st January 2013 the Russian Federation introduced a law prohibiting any further adoption by US nationals of Russian children. The US parents argued that preventing them from completing their adoption applications because of their nationality was unlawful discrimination and claimed breach of Article 14 of the ECHR in conjunction with Article 8. They also made a claim arguing breach of Article 3 because the children, many of whom had disabilities, had been deprived of medical treatment in the US.

At the time of the ban, the US State Department issued a statement highlighting its regret, pointing out that some children who had already formed bonds with their potential new families would now not be able to live with them. There was further serious criticism from various human rights agencies such as Amnesty international, who said it was politically motivated and not in the best interests of the children concerned.

Judge Dedov had the following view of the political background to the ban:

Obviously, the impugned Law was a reaction to the political pressure constantly exercised by the US authorities in relation to Russia since 2002, when the Russian authorities started taking steps to reinforce the independence and sovereignty of the country. Finally, in 2015 Russia was officially declared to be one of the most serious threats (together with ISIS and Ebola) to the USA. The US strategy was implemented through political and economic sanctions, cultural isolation, intensive political propaganda demonising the so-called “political regime” in Russia and establishment of military bases surrounding Russian territory.

Inter-country adoption is recognised as a mechanism to promote the welfare of children who cannot otherwise remain with their birth family by Art 21 of the 1989 UN Convention of the Rights of the Child, which was ratified by Russia in 1990. In 2013 the OSCE Parliamentary Assembly adopted a Resolution on Inter Country Adoptions (see jmt para 301) which recognised that ‘a bond forms rapidly between the child and prospective adopters during the adoption process but before legal parent-child relationship has been effected’ and urged participating States to resolve its disputes about inter-country adoption in a way that did not harm the best interests of the child or damage this ‘nascent family’.

Article 8 and the right to a family and private life/ Article 14 prohibition on discrimination

All parties agreed that Article 8 right to a family life did not protect a mere wish to start a family (see para 376); it presupposes the existence of a family thus does not support a ‘right’ to adopt. The US applicants had initiated the inter-country adoption processes in 2010-12 so most of them had met the child they were seeking to adopt, had spent time with him or her, and had either submitted the adoption application to a Russian court or had their file ready for submission. They were all therefore in the ‘final stages’ of the adoption procedure (para 422).

Some applicants were clearly further down the road to establish ‘familial ties’ with the children – for example, one family had already adopted the sibling of one of the children and thus had a clear argument on both right to family life and right to a private life.

The court noted at para 383 that the US applicants had a genuine intention to become parents by applying for inter country adoption when it was still lawful in Russia. Therefore the issue was their decision to become parents and ‘their personal development through the role of parents that they wished to assume’. This fell within the scope of ‘private life’ protected by Article 8.

The Court therefore agreed that Article 14 and Article 8 applied and dismissed the arguments of the Russian Federation to the contrary. However, Article 14 could only apply to the US potential parents, who were discriminated against on the grounds of nationality. It could not apply to the children.

Russian Government – ban on adoption by US nationals was ‘measure of last resort’ to protect children

The Russian Government argued that the ban on the adoption of Russian children by US nationals was not discriminatory but based on objective and reasonable grounds and the children’s best interests (See para 392). The US citizens could still adopt from elsewhere and other countries had implemented similar blanket bans – for example the UK banned adoption from Cambodia in 2005. Other countries permit inter-country adoption only in exceptional circumstances or subject to strict requirements.

There was also concern that parents in the US had failed to provide reports about the wellbeing of 653 Russian children over the past 3 years and the Russian Government further relied upon reports from NGOs and the US Department of Health and Human Services, of a hidden ‘epidemic of violence’ against children in the USA, citing 5 children who died every day because of abuse or negligence perpetrated by adults (in 80% of cases being biological or adoptive parents). The Russian Government were concerned that at least 20 children adopted from Russia had been killed by American adoptive parents, although they did not have precise statistics to support this figure (para 396).

Thus a ban on adoption of Russian children by US nationals was not discrimination but a measure of last resort, prompted not only by instances of death, injury and sexual abuse of Russian adopted children but also by the lack of co-operation by the US to help ensure their safety and psychological well being (para 398). Also cited was the desire to increase adoptions by Russian nationals.

US parents response – no objective justification for ban

The claimants responded (para 403) that death and serious injury to Russian adoptive children comprised on a tiny proportion of the overall number of Russian children so adopted and that the Russian Government had not provided any information that the situation was any better for Russian children in any other country, or indeed in Russian orphanages. The claimants rejected the argument that one of the aims behind the ban was to encourage adoption by Russian families as adoption by foreign nationals was only permitted when it was ‘impossible’ to find a Russian family willing to adopt. The claimants argued that the Russian response was disproportionate and excluded an entire category of potentially loving parents for children for whom no adoptive family could be found in Russia (para 405).

The Decision of the Court – in imposing ban on adoption, no consideration given to the interests of the children

The Court agreed that American nationals were being treated differently. Did that have an objective and reasonable justification (para 412)? The Court noted that the ban on adoption came only two months after the introduction of the Bilateral Agreement on Adoption between Russia and the US which was aimed at providing stronger legal safeguards for such inter-country adoptions. Most of the concerning incidents involving Russian children in the US had occurred before the entry into force of that Bilateral Agreement. Thus it was doubtful that the ban on adoption had a reasonable justification (para 420).

The claimants were all in the final stages of the adoption process and their proceedings were brought to an abrupt end because of the automatic ineligibility provided by the ban on adoption that unexpectedly came into force over ten days.

The Court found at para 425:

‘No consideration was given to the interests of the children concerned, and those of them who were eventually placed in a different adoptive or foster family were obliged to stay in the orphanage for additional periods ranging from several months to several years. At the date of this judgment, some of them are still in orphanages.

The Russian Government had thus failed to show that there were compelling reasons to justify a blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from the US (para 426). The difference in treatment was thus discriminatory in breach of Article 14, in conjunction with Article 8. There was thus no need to examine a separate complaint under Article 8.

The Article 3 breach

The claimants further alleged that most of the children concerned needed specialist medical care that was only available in the US and depriving them of that treatment was a breach of their Article 3 rights, which protects against inhuman or degrading treatment. The Court considered this at para 432 onwards. The Russian Government provided evidence about medical treatment available and conditions in Russian orphanages and rejected the argument that the Russian state could not provide suitable medical care for the children. The claimants relied upon expert statements and academic works concerning the general situation in Russia as the medical files relating to the children were in the Russian Government’s possession.

Submissions of third party intervenors about the importance of early permanence for children.

At para 440 onwards the Court heard argument from the intervenors. The Harvard Law School’s Child Advocacy Program (CAP) and the Bucharest Early Intervention Project (BEIP) argued that extensive research over many years demonstrated the importance of placing children in permanent adoptive homes as early as possible. Nurturing parenting in child’s early months and years is vital to normal physical, emotional and intellectual development. CAP cited particular concerns about Russian orphanages, saying ‘95% of Russian children who grow up in orphanages end up on the streets… and are likely to die shortly after their 18th birthday’. As the world became more global, the idea ‘that children belonged in some essentialist sense with their racial or national groups of origin was outdated’ (para 443).

The Russian Government countered that Article 8 of the UN Convention on the Rights of the Child protected the child’s right to preservation of his or her identity, including nationality. They rejected the arguments about dire outcomes for children in Russian orphanages as ‘unsubstantiated and untrue’ (para 446).

The Court ruled that the complaint based on Article 3 was inadmissible as manifestly ill founded. The information provided by the claimants was largely of a general nature and the evidence from the Russian Government showed that these particular children received adequate medical care in Russia.

Damages

The Court awarded the applicants EUR 3,000 in respect of non-pecuniary damage and around $600 dollars for costs and expenses of the court proceedings.

The Partly Concurring Opinion of Judge Dedov

This raises a sad and salient point:

There is a more serious problem in Russia. The Russian Government informed the Court that there were still more than 66,000 children abandoned by their parents and subsequently placed in orphanages. The total number of such children who have been accommodated in orphanages during the last 25 years may be close to 300,000. Obviously this is the result of a structural social problem caused by the deterioration of values and lack of social responsibility. This problem cannot be resolved either by inter-country adoption or by political pressure’.

For what reasons do other countries allow adoption without consent?

We are grateful for this helpful summary of the position in other EU Member states from Claire Fenton – Glynn. See further her post, We are not alone: Every European country permits adoption without parental consent.

ANNEX III: COMPARISON OF GROUNDS FOR ADOPTION WITHOUT CONSENT IN EU MEMBER STATES

Abandonment or Lack of Contact with Child

Deprivation of Parental Rights

Dispensing with Consent

AUSTRIA Whereabouts or residence unknown (6 months) Refusal of consent without justification
BELGIUM Parent has lost interest in the child, deprivation of parental rights; has compromised his or her health, safety or morals
BULGARIA Resident in a foster home or institutional care, and parent has not requested the termination or modification of this measure and the return of the child (6 months) Parents continuously fail to provide care for the child, do not provide financial support, or raise and educate the child in a manner harmful to its development.
CROATIA Abandoned the child, lost the right to parental care
CYPRUS Abandoned or neglected the child, neglect or persistent mistreatment. Unreasonably withholding consent
CZECH REPUBLIC Not manifested a proper interest (6 months) Not trying to rectify their family and social condition within the limits of their possibilities so that they can personally care of the child (6 months)
DENMARK Deprivation of parental rights If dispensing with consent it is of decisive importance to the welfare of the child
ENGLAND AND WALES If dispensing with consent is in the best interests of the child
ESTONIA Whereabouts or residence unknown (for “an extended period of time”) Deprivation of parental rights
FINLAND If the refusal is not sufficiently justified taking into account the best interests of the child
FRANCE Manifest disinterest (12 months) Risk of compromising the child’s health or morals Abusively withholding consent
GERMANY Shown through conduct to be indifferent to the child Persistently grossly violating parental duties Where it would be disproportionately disadvantageous to the child if the adoption did not take place
GREECE Deprivation of parental rights
HUNGARY Not contacting the child (12 months)
IRELAND Parents failed in their duty towards the child (12 months)
ITALY Abandonment: lacking the moral and material care of their parents
LATVIA Treat the child especially badly or does not care of the child or does not ensure the supervision of the child and it may endanger the physical, mental or moral development of the child.
LITHUANIA Parental authority restricted for an unlimited period
LUXEMBOURG Manifest disinterest (12 months) Lost their parental rights
MALTA Unjustifiably not having contact (18 months) Neglect or persistent mistreatment Unreasonably withholding consent
NETHERLANDS Have not, or hardly, lived together, abuse of parental authority or grossly neglected duties to care for the child
NORTHERN IRELAND Abandoned or neglected the child, persistently failed in duties towards the child, has persistently ill-treated, or seriously ill-treated the child, withholding consent unreasonably
POLAND Deprived of parental authority If refusal is clearly contrary to the child’s welfare
PORTUGAL Not showing interest (3 months) Deprived of parental authority
ROMANIA Abusively refusing to give consent, and adoption is in the child’s best interests
SCOTLAND Unable to satisfactorily discharge parental duties
SLOVAKIA Systematically did not manifest proper interest (6 months) Deprivation of parental rights
SLOVENIA Whereabouts or residence unknown (12 months) Parental rights have been take away
SPAIN Deprived of parental authority
SWEDEN Where a parent has no share in custody

We are not alone – every European country permits adoption without parental consent.

So we can see that England really is not alone in allowing adoption without parental consent – every country has some mechanism for doing so. What makes England unique, however, is the extent to which this mechanism is used.

We are grateful for this post by Claire Fenton-Glynn, author of ‘Adoption without consent’ which was presented to the European Parliament in July 2015. She was cited by the President of the Family Division in the case of Re N (Children) (Adoption: Jurisdiction) [2015].

Claire Fenton-Glynn is a Lecturer in Law at Cambridge University. Her research lies in the field of human rights and the protection of children. She has published on a wide range of issues including inter-country adoption, parental child abduction, and international surrogacy, as well as the right of the child to identity, and child participation in family law proceedings. At the core of this research is the way in which private international law instruments interact with human rights norms, and the protection of children and youth in regional and international instruments.

Are we alone in Europe?

It is a popular myth, perpetuated even by the upper echelons of the English judiciary, that England is alone in Europe in permitting adoption without parental consent.

In Re D (a Child) [2014], Mostyn J states that only 3 out of 28 European Countries permits ‘forced adoption’, while Lady Hale in Down Lisburn Health and Social Services Trust v H [2006] suggested that:

The United Kingdom is unusual amongst members of the Council of Europe in permitting the total severance of family ties without parental consent. (Professor Triseliotis thought that only Portugal and perhaps one other European country allowed this.)

On the other hand, a 2015 report by the Council of Europe, stated that such adoptions are permitted in Andorra, Croatia, Cyprus, Estonia, Georgia, Germany, Hungary, Italy, Lithuania, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovenia, Sweden, Switzerland, and Turkey. However, it maintained that such adoptions were not possible in France, Greece, Luxembourg and Spain.

As such, there appears to be considerable confusion concerning the extent to which adoption without parental consent – pejoratively named “forced adoption” by some – is permitted throughout Europe.

Every country in Europe permits ‘forced adoption’

As this post will make clear, despite assertions to the contrary, EVERY country in Europe has a mechanism for permitting adoption without parental consent, in certain circumstances. (“Europe” can be defined in a number of different ways, but for these purposes, I mean all 47 Member States of the Council of Europe).

Three different mechanisms – abandonment, parental misconduct, child’s welfare

When looking at ways in which an adoption order can be made without parental consent, I have identified three different mechanisms that are used throughout Europe:

Where parental consent is not necessary because of abandonment or lack of interest in the child;
Where consent is not necessary because of parental misconduct or deprivation of parental rights;
Where consent is dispensed with because the parents have refused consent unjustifiably, or because it is in the child’s best interests.

Some States use a combination of these approaches, allowing consent to be dispensed with in a number of different ways.

Child has been abandoned

One mechanism for permitting adoption without parental consent is where a child who has been deemed abandoned by their parents. The precise grounds for not requiring consent in this area vary significantly, including:

abandonment (Albania, Cyprus, Italy);
not contacting the child (Hungary, Malta);
not showing interest (Portugal);
being manifestly disinterested (France);
not participating in his or her upbringing (Azerbaijan, Czech Republic);
parents’ whereabouts or residence is unknown (Austria, Estonia, Hungary, Montenegro, Slovenia, Switzerland).

Different time limits are also placed on authorities before they can dispense with consent for these reasons, ranging from:

three months (Montenegro, Portugal);
six months (Austria, Azerbaijan, Czech Republic, Hungary, Moldova, Montenegro, Ukraine);
twelve months (Albania, Andorra, Armenia, France, Hungary, Luxembourg, Slovenia);
eighteen months (Malta);
“an extended period of time” (Estonia, Switzerland).

Parental misconduct

Parental consent is not necessary because parents have been deprived of parental rights or on the grounds of parental misconduct. The most common way in which consent is dispensed with is where the parents have been deprived of parental rights.

This is the case in:
• Armenia;
• Belgium;
• Croatia;
• Denmark;
• Estonia;
• Greece;
• Latvia;
• Liechtenstein;
• Lithuania;
• Luxembourg;
• Moldova;
• Monaco;
• Montenegro;
• Poland;
• Serbia;
• Slovakia;
• Slovenia;
• Spain;
• Russia.

Other countries do not require deprivation of parental rights for consent to be dispensed with, but instead focus on the specific conduct of the parents. This focus varies:

neglect or persistent mistreatment (Cyprus, Malta);
abuse of parental authority (Netherlands);
risk of compromising the child’s health or morals (France);
persistently grossly violating parental duties (Germany);
not caring for the child to any meaningful degree (Switzerland).

In some countries, the deprivation of rights must have lasted for a set period of time before an adoption can be granted, for example:

where the parents have been deprived of parental rights for longer than six months six months (Russia);
where the parents have been deprived of parental rights for a period of one year (Azerbaijan, Georgia, Slovenia);

Dispensing with parental consent by overriding an unjustified refusal, or in the child’s best interests

Another common mechanism for allowing adoption without consent is where the parents’ refusal is overridden in certain circumstances:

if the court adjudges the consent to be “unreasonably” withheld (Cyprus, Malta);
“refusal without justification” (Austria, Liechtenstein);
if the refusal is “abusive”, (France) or consent is “abusively denied” (Greece)

However, in Romania, even if parents are deprived of parental rights, their consent is still needed.

A shift to a process based on the welfare of the child

On the other hand, some jurisdictions have shifted to a process that is more explicitly based on the welfare of the child. This position is in line with the requirement under the UN Convention on the Rights of the Child. Article 21 of this Convention, which deals with adoption, is the only article under which the child’s rights must be the paramount, rather than merely the primary, consideration.

Such legislation can be seen in the following jurisdictions:

if the parents’ refusal of consent is clearly contradictory to the child’s welfare (Poland);
if the refusal is not sufficiently justified taking into account the best interests of the child (Finland);
if it is of decisive importance to the welfare of the child (Denmark);
if it is in the best interests of the child (Malta, England and Wales).

But what makes us unique is the extent to which we rely on ‘forced adoption’.

What does all this mean?

So we can see that England really is not alone in allowing adoption without parental consent – every country has some mechanism for doing so. What makes England unique, however, is the extent to which this mechanism is used.

Governmental statistics indicate that of the child placed for adoption in England in the year ending March 2014, 4,870 were completed without parental consent, with only 130 the result of voluntary placements on the part of the parents. This constituted 96% of all adoptions. (Department for Education, “Statistics: looked-after children” (30 September 2014))

Statistics in this area are difficult to come by from other jurisdictions, and in particular statistics disaggregated in this way are not easily accessible. Research indicates that the Netherlands only have about 20 adoptions per year in total (though it is unclear whether these are with or without parental consent), while France generally has around 700, however, 600 of these are as a result of an anonymous birth (“accouchement sous X”).

So what is happening to the children in other countries? And why are outcomes for children in care in the UK so bad?

So the question we really should be asking is: what is happening to all the children in these countries who would be placed in adoption in the England? Are they staying with their parents, with support from the authorities? Or are they placed in another form of alternative care? If so, what are the outcomes for this?

One of the difficulties we face in England is that the outcomes for children in state care are dire. In 2014, the Department of Education noted that looked after children continue to have poorer educational outcomes than other children, and 66.6% have special educational needs. In the year prior to March 2014, 5.2% of looked after children from 10-17 had been convicted or subject to a final warning or reprimand, while 3.5% of all looked after children had a substance misuse problem. Of children aged 16 and 17, the rate of conviction, final warning or reprimand raised to 10%, and the rate of substance abuse 10.8%. Statistics also showed that looked after children were also twice as likely to have been excluded from school, and around only 50.4% of looked after children had emotional and behavioural health that was considered “normal”, with 12.8% more “borderline”, and 36.7% “cause for concern”.

We can thus see that there is a tension between leaving children in public care, where the outcomes for children are simply unacceptable, and the placement of children for adoption without parental consent. There is no doubt that many children do not thrive in public care in England, and thus leaving them in this environment is detrimental to their welfare. The response has been to place more children in adoption, rather than to address the reasons why public care is so harmful, and seek better alternatives. In this respect, we need to look to other jurisdictions, and learn from each other. There are always going to be children who need to be separated from their families – the question is how best to provide long-term care for them that gives them stability, security, and all of life’s chances. Currently, we are not achieving this.

How you do anything is how you do everything – the view from Finland #Nordic2015

Heading to Helsinki to take the leap of co-working

This is a post by Sarah Phillimore. You may also be interested in this post about child protection in Finland.

From 9 – 13 June I went to Helsinki to be part of the conference #Nordic2015. The theme was Courage in Social Work. Wearing my CPR hat, I gave a presentation about ‘The Courage to Communicate’ and heard presentations from Finnish groups who worked with families to support them in the community.

I also took the opportunity to have a look round Helskinki. It was interesting to note that at the cafes you would often find jugs of water and glasses. The thirsty traveller can refresh himself without cost. In England – at least in my experience – water is rarely freely offered and when requested often brought grudgingly or not at all. It struck me that this little thing was actually emblematic of a much wider gulf between our two societies, and that these different attitudes must inevitably play out in our respective approaches to child protection.

In England, the message seems to be – take responsibility for your own thirst. Buy some water or carry it with you. Why should you expect anyone else to bail you out for your own laziness or lack of foresight? If you are thirsty, that is your fault and you must take the blame.

Whereas in Helsinki there seems to be more of a recognition that life is simply nicer for everyone if we come out of our individualistic bubbles and work collectively to take care of each other. Rather than waste energy arguing over who should have provided the water, just make it available without fuss.

If you think my example is too whimsical, have a look at how Norway deals with children who kill children and compare and contrast with the response to the children who killed James Bulger. Consider again the relentless hunt for ‘someone to blame’ after Peter Connolley was killed – that ‘someone’ being exclusively amongst the social workers. As the Guardian commented about the killing of Silje Redergard in 1994:

But perhaps the most significant difference was that, in Britain, the authorities decided to let the nation judge the child killers. Trying Thompson and Venables as adults and releasing names and mugshots unleashed a countrywide roar of anguish that can still be heard today – much to the disadvantage of any damaged child who behaves badly to another, and who needs help rather than “justice”.

We are out of step with Europe

There is little doubt in my mind that the UK is increasingly out of step with other European countries and our approach to protecting children and supporting families, and there is a real risk that we end up doing precious little of either.

The courage to communicate

I first spoke on behalf of the CPR site about the courage to communicate. To say that it takes courage to speak the truth is both distorting and inhibiting, it makes the truth something to be feared. However, when that distortion and inhibition has already taken hold, courage is needed because you are trying to speak hard truths, that your listener may not want to hear.

I spoke of Atul Gawande, the American surgeon who recognised that as a young doctor he did not have the courage needed to tell his terminally ill patients that they were going to die and instead risked giving them false hope by talking of possible treatments which in reality would not help at all. I suspect the same fear – of not wanting to upset someone or make them angry with you, or having to admit that we just don’t have the resources available to help – is behind the cloaking of much of our attempts to communicate in the child protection field in terms of jargon and euphemism, which parents just cannot understand.

Social work and the work of family lawyers, is about human beings talking to other human beings, being interested in and concerned for the welfare of those other humans. If we cannot communicate, distrust arises, which leads to fear and anger. All hope of a constructive relationship is lost. I spoke about the work of the CPR site and what we were trying to do to improve communication – by speaking hard truths plainly but hopefully with compassion.

The culmination of this work was of course the conference on June 1st – is the Child Protection System Fit for Purpose? I spoke about how surprised and pleased I had been at the number of people who came from such different walks of life and how the parents who came were also so happy to be able to speak in a room full of professionals without feeling judged or ashamed.

I hoped that what we had discussed at this conference would continue to be part of an ever forward moving project to promote continued communication and continued change for the better. It was very interesting to hear from some of the parents that the conference had made them think about their own attitudes to social workers and what they needed to change. But it sadly confirmed just how deep are the current levels of distrust and fear between families and professionals.

What’s happening in Finland to improve communication between parents and professionals?

I then listened to very interesting presentations from two groups that work with parents and children in Finland. The key message was how parents and children are engaged to work with the process.

Children

Finland seems far ahead of the UK in its willingness to recognise the continuing importance in the child’s life of loved family members. The view is that care away from families should be for a short time and that children should go home – adoption is currently not possible in Finland.

(EDIT – this is what I was told by the Finnish delegates, but it does not seem to be true! Please see this post by Claire Fenton Glynn. I will attempt to find out more and clarify this position. Edit 9th August 2015, Claire Fenton Glynn clarifies the position in this post.)

But if a child can’t go home, the family remains important. There was also recognition that professionals should not be ‘gate keepers’ to a child’s participation in the system; they should ask the child if he/she is ready to participate.

The Lahemmas (‘closer’) project is part of the Pesapuu organisation, which is a nationwide child welfare association bringing expertise to the field of child welfare. Lahemmas seeks to enhance the recognition of family relationships in child protection in Finland. Its goals are:

to promote the relationships of children and their loved ones and their right to be heard
to reinforce expertise of experience in developing child protection
to provide support for children and families to cope with the help of relatives and other important people
to find solutions in child protection based on the help and support of people close to the child.
to create new child-orientated methods in social work which take parents, relatives and people close to a child into account.

Parents

With regard to parents, the group Voikukkia (‘Dandelions’ or ‘can bloom’) was set up in the early 2000s when it was discovered that the parents of placed children often remained without support and were left alone to deal with the crisis of that removal. The group recognises the shame parents can feel when their child is in care and are determined that no one should feel alone in the process.

The group’s objectives are:

to justify and convince others about why parental support after custody removals is important and worthwhile. The parent’s own voice is a crucial element in this.
to disseminate their proven peer support group methods, so that Voikukkia peer support groups would be available to all who need it.
to train professionals and experienced parents of the group to become the peer support group facilitators, as well as better identify the need for assistance of families in crisis.

Voikukkia now has more than 200 trained instructors in different parts of Finland and has published a book about parents’ experiences.

Take the leap of co-working

Both groups promote engagement between children, parents and professionals. At first, ‘co-working’ with families had seemed like an impossible step but now in Finland it is difficult to think of developing the child protection system without the parents and children having input and we were urged to ‘take the leap of co-working’ – this struck an immediate chord with those following the CPR twitter feed in the UK and was the most re-tweeted comment from the session.

This is very far from my own experience as a lawyer at the adversarial end of the child protection system but clearly brings with it enormous benefits. I am interested to keep exploring the Finnish model and hope to bring some of the speakers over to #CPConf2016 – watch this space.

OPCA – Organised Pseudolegal Commercial Argument; the Canadian Perspective

We are grateful to this post from our Canadian contributor who goes by the alias of “Hilfskreuzer Möwe” and who can be found on http://www.quatloos.com/Q-Forum/

For a general summary of OPCA litigation and the Freeman on the Land phenomenon, see our post here.

OPCA litigation – the Canadian Perspective

Most of us Freeman/Sovereign/OPCA commentators are cautious about out revealing our identities. The Canadian variety of these folks are not as much of a threat as their U.S. counterparts, but there still are very real risks.

Freeman philosophy as a ‘virus’ : the epidemiological model.

I tend to approach Freeman/OPCA ideas from a meme basis. These are a parasitic, highly pathogenic strain of ideas that rapidly transmit in susceptible peer groups. Emphasis there on “susceptible”. Our experience in Canada is that Freeman concepts are tightly concentrated in certain peer groups, where their ‘hosts’ reinforce one-another’s preconceptions and preoccupations. The preferred ‘hosts’ are those who usually are poorly educated but believe themselves highly sophisticated, typically with ‘alternative’, non-conformist, leftist, eco-nik, occupista views. This can both be ‘old hippies’ and their younger anti-authoritarian counterparts.

These persons are thoroughly indoctrinated that state and corporate actors are malevolent, or at least controlled. That facilitates the idea of hidden controlling parties that use false law as the basis for their authority. Another problematic aspect of this ‘host’ group is that they have typically been taught to follow leaders who appear incredibly flakey to the average person.

The epidemiological model for these ideas actually works very well. Once OPCA ideas reach a susceptible but uninfected population they spread very rapidly, though social peer relationships. This is a period where gurus, old and new, surge their activities and obtain many subscribers. The combination of guru promotion and peer encouragement results in numerous attempts to apply these ideas.

The next stage is collapse. After a certain number of failures the peer groups abandon OPCA ideas, and move on to something else. The time to collapse is affected by whether there is a perception that the OPCA scheme is already complete, or if instead there is a need to adapt or grow ideas – a kind of “let’s do a trial and error” period. ‘Pre-fab’ schemes grow and collapse fast – an excellent example was an outfit called the One People’s Public Trust. It appeared in late 2012, attracted massive attention, but by summer 2013 had all but collapsed.

Another key ‘time to collapse’ factor is knowledge of in-court and other failures. OPCA litigants are notorious for lying and misrepresenting their degree of success. They also tend to interpret delay as success. Media, court judgment, and ‘skeptic’ reporting is very efficient at this stage.

That in part is what myself and a few collaborators are doing on Quatloos at present with Dean Clifford. It’s costing us some cash but we’re ordering court materials and putting them online to demonstrate that his claims and what is actually going on do not match. Nothing wrecks a guru like proof of failure – and that’s where online groups like Quatloos and (in the past) the James Randi Educational Foundation forums have proven very effective. JREF has declined as a useful agent, sad to say.

The Three Waves of OPCA belief

Post-collapse a small number of die-hard believers will usually persist and attempt to carry on their OPCA ideas. In Canada we have had three waves of OPCA belief – a racist anti-tax group that is not well characterized at present, the anti-tax “Detaxers”, and now the Freemen. The first two are extinct, except for the holdouts. There’s not much that can be done about them – they just keep coming on, no matter the degree of state, court, and social sanction. They are very few in number, so as a threat that can be contained.

The interesting thing about the holdouts is that they are the pool from which the next wave of gurus emerge – they are the ‘disease carriers’ – once they find another susceptible and hitherto unexposed potential host population for their memes. Epidemiology really is a very effective model for this phenomenon!

Review of Canadian Jurisprudence

I found this large review of Canadian OPCA jurisprudence which was prepared as part of a bar association education session:

http://www.cba.org/cba/clc/pdf/clc13_2-7_paper_supplementary.pdf

It’s written by a staff lawyer from the Edmonton Court of Queen’s Bench, the same court that generated Meads v. Meads. Looks like they keep pretty close track of these things!

McKenzie friends

We too are having issues with those. The rules of whether or not a person can represent another in court vary jurisdiction to jurisdiction and court to court. In some instances the rule is strict – a lawyer or nobody. But others are more flexible.  On the Freeman-type front that is less of an issue since now that the courts know what to look for, when a suspect agent appears the judges intervene and exclude that person.

That’s been going on for over a decade – our judges are pretty aggressive on that point, but so far the process is rather informal. Again, the proliferation of written judgments seems to help since the stereotypical ‘bad agent’ is often a former vexatious litigant. Point to the judgment that declared that person vexatious, and you have grounds to remove the problematic McKenzie friend.

Academic Commentary

As I previously mentioned our most useful Freeman commentary is in the reported jurisprudence. There are a very few other useful resources – to date academic commentary has not been very helpful, but there are a few exceptions. In my opinion this couple of papers by a Canadian sociologist offer some useful overview and background.

  Stephen A. Kent & Robin D. Willey, “Sects, Cults and the Attack on Jurisprudence”, (2013) 14 Rutgers Journal of Law & Religion 309.
Stephen A. Kent, “Freemen, Sovereign Citizens, and the Threat to Public Order in British Heritage Countries” (seminar paper)

The Canadian experience of Freeman and Family law

In the Canadian experience many of the worst cases are family law matters, usually scenarios that involve custody or access. It’s sad because in many instances I suspect the parent who is pushing these actions could have at least some access or role in the child’s life, but the use of Freeman tactics almost guarantees that will not be the result.

Putting together the pieces, it usually looks like the parent(s) who adopt Freeman strategies have some kind of issues – drugs, homelessness, violence, criminal activities. My suspicion has long been that these people have limited success when they try to use lawyers or the ‘legal’ procedures to gain access/custody of their children. Their desperation leads them to use Freeman schemes which just make things worse. That then cycles up.

There aren’t a lot of reported cases of this kind in Canada but our little Canadian observer group has tracked a few via media sources and the parent’s own websites.

The Categories of OPCA in Canadian Family Law

It is an evolving phenomenon. It seems the most common ways in which Freeman/OPCA type ideas appear are:

as an excuse to evade payment of child and spousal support,
as a mechanism to challenge child custody, and
as a response to child seizure by state authorities.

These are ways that Freeman concepts are used ‘offensively’.  The first one is kind of basic – a parent claims they have some magic method to exclude themselves from the usual support enforcement procedures. The most comic variation is where the delinquent parent/spouse claims to make their payments from a huge secret bank account operated by state actors. This is a U.S. concept called “Acceptance for Value” (“A4V” for short) or “Redemption”. There’s a nice commentary on that in the Meads decision as Dennis Larry Meads (oops – sorry, :::Dennis-Larry :: of the Meads Family::: ) tried to use that mechanism to pay off his spousal and child support obligations.

In theory, a Freeman should not say “I opt out of my obligations that flow from marriage”, because Freemen say they honour contracts between people – and marriage is usually seen as a contract or contract-like. Well, that’s not to say Freemen don’t still try to work around that.

Here is quite a recent example of that:   Curle v. Curle, 2014 ONSC 1077.

At para. 8 it explains how the father in this case claims his marriage never existed because the state’s authority over him was fraudulent.

This case is also a good example of the second category – where Freeman/OPCA ideas are used to claim a superior interest by one parent in children. Here the father claims he has “full title (legal and equitable)” to his children, which trumps the interest of the mother.

  Another example of that is found here:   A.N.B. v. Hancock, 2013 ABQB 97. If you look at paras. 60-64 the father invokes old U.S. slavery-period legal principles to claim his children as property!

The third category is probably the most alarming. Canada has seen a significant number of parents who lose custody of their children to the state and then adopt Freeman/OPCA tactics in court. In a way it’s understandable, as these are desperate, desperate people, who understandably may grasp at any straw. But it’s not helping them.

This is a growth area and a very troublesome one. Freeman theory says you can opt out of state authority or somehow have rights that trump everyone else. The logical endpoint of that is that if the state takes your child and does not comply with your demands then it is the state that is acting unlawfully – not you. The remedy? Litigation or force. In the A.N.B. v. Hancock matter that is exactly what happened. A second decision discusses A.N.B. trying to get bail after he began threatening family services lawyers and personnel:   R. v. A.N.B., 2012 ABQB 556

I’m pretty certain I have read A.N.B. ultimately pled guilty and received an eight month sentence – the decision is not reported.

Canadian approach – Freeman beliefs in and of themselves equal bad parenting

There is a new development on the family law/Freeman front – courts are starting to use Freeman affiliation against those who advance it. There are a couple trial level Canadian judgments where courts have determined that holding Freeman-type anti-government and anti-authoritarian belief is a basis to restrict child access and custody. Basically it comes to this; if you tell your child they are not subject to state and court authority then you are a bad parent.   S.H. v G.J., 2013 BCPC 242:

This is a new trend, so we’ll see how far our courts take things.

Robert Menard

But the most bizarre example of OPCA strategies in the Canadian experience of family law turns out to be founder and principle guru of the Freeman-on-the-Land community itself – Robert-Arthur: Menard.   Menard, back in the early 2000’s, was the one who collected a number of pre-existing OPCA ideas and combined those to create the characteristic Freeman-on-the-Land concept set: that everything is a contract, you are only controlled by the government through a ‘strawman’ legal entity attached to you, and that you can unilaterally ‘contract out’ of that strawman bond.

But that wasn’t his first obsession. It was his daughter. Menard claims to have a daughter he fathered with a underage street child he met in a bar. The newborn daughter, Elizabeth Anne Elaine, was then ‘abducted’ by child welfare services. Menard’s initial obsession was an idea that a parent signing a birth certificate turns a child into the government’s property. Here, the mother of his child did that, and that’s why Menard believes he could not keep his child.

Rather than provide more detail, I’d suggest those interested read Menard’s book on the subject “Your Child Or Her Life! DECEPTION AND EVIL IN THE Ministry of Children, Family and Community Development”, by Robert Arthur: – www.angelfire.com/planet/thinkfree/childorlife.pdf  

It’s pretty extraordinary.

Menard entered into a relationship with a much younger individual, probably a very troubled person. A child resulted. The mother appears to have voluntarily given up the child for adoption. So, Menard faces a challenge:  1. the nature of his relationship with the mother;  2. his inability to parent, his absence of any useful work or life skills, probable drug use and addictions, and lack of finances;  3. the fact the mother of his child wants him no-where near the kid, and probably herself; and  4. his genuine emotion and bond to his child and his wish to be a parent.

He has failed himself, his child, and the child’s mother. If he were honest to himself the consequences would be, at a minimum, grim. So he reverses the blame, and puts the fault outside himself. If only he had been given a chance. He’d have shown them all what he could do. It wasn’t his fault. He was denied that chance by sinister government authorities who enslave the Canadian population – and the vile mechanism by which they derived the authority to seize his child. Her mother had signed a birth certificate.   In Canada we have seen this particular drama revisited in various forms, with other troubled parents. These are, perhaps, the most difficult OPCA litigants to control and assist. I think it is because they know, on some level, their error.

There’s a weird symmetry that these desperate, traumatized parents will be the last Freemen – the ones who just won’t give up – and in that way they are precisely the same as the first.

Child Protection in Finland

We are grateful for this contribution from the Lähemmäs (Closer) project from Finland.

Lähemmäs believes that the child has the right to express who s/he feels close to and the aim is to get those people involved in supporting the child in all stages of child welfare procedures.

Another aim is to challenge the authorities to see the people around the child as positive resources when they prove to be such.

See more at www.pesapuu -a nationwide child welfare association bringing expertise to the field of child welfare.

Adoption is not the solution?

We can see that the important issues and questions being considered in Finland are very similar to those in England – particularly the core value of protecting the best interests of the child and looking at family care as the first resort for children.

The key distinction between UK and Finnish law is that Finland does not permit any kind of formal end to the legal relationship between parent and child although a child has been taken into long-term care. Thus in the Finnish system, children taken into care will NOT be adopted but rather will be in foster care or institutional care.

It would be interesting to compare and contrast in greater detail the different attitudes between the Finnish and the UK approach to what is considered the best long term outcomes for children in care.

See further The New Child Welfare Act in Finland, 2008

EDIT 9th August 2015: To say that Finland does not permit a formal end to the legal relationship between parent and child does not seem to be supported by legal analysis from others. Please see this post by Claire Fenton Glynn. I will attempt to find out more and clarify this position.

EDIT – 9th August 2015 Claire Fenton Glynn explains the position re Finland

The Finnish Adoption Act (22/2012) reads as follows:

Section 9
(1) The adoption of a child may not be granted unless his/her parents have consented thereto, with the exceptions provided in paragraphs (2) and (3) and section 36(2).
(2) For exceptional reasons, adoption may be granted even if the consent of the parents or one of them has not been obtained or if a previous consent has been withdrawn, if it is deemed that the adoption obviously and definitely is in the best interests of the child and that the refusal or withdrawal of consent by the parent(s) is not sufficiently justified, taking into account the best interests of the child and the interaction between the child and the parent(s), their mutual relationship and its nature.
… you are also correct that in Finland uses long term foster care as the preferred option, and I think the use of this section would be very rare (if you look at cases where Finland has been taken to the ECtHR, even in quite extreme cases foster care is preferred).

Unfortunately, I don’t know full details about how often it is used, and in what circumstances. I think this is the crucial issue, and it is why I don’t really think talking about the mechanisms for adoption in and of themselves is necessary helpful – the only reason I have been emphasising the legal frameworks is that I get annoyed that there is misinformation out there about it not being possible, when I think there needs to be a shift in the discussion – moving away from what is possible (because all frameworks are roughly similar in terms of some kind of parental misconduct or abandonment), to what is actually done.

What we need is a discussion of how these mechanisms are used, and when, and what reaction social services would have in different countries to the same scenario (eg. drug use of parents, developmental delays, problems at school etc). There was one attempt to do so in 2003 by Warman and Roberts, but as far as I am aware, nothing similar has been done since.

Main issues and questions in child protection at the moment in Finland

How is the information shared between various authorities?
Family care as primary option for the children in care.
The amount of work and customers per social worker ( e.g. the prime assessments of whether there is a need for child protective services are not always done in the timeline stated in the Child Welfare Act).
The need for a strategy plan for improving child welfare.
The experiences of the children, the young and the families who are/have been clients in child welfare services will be taken into account when assessing and improving the quality of child protection services.

Child welfare in Finland

Basic principles and procedures and what is going on

Statistics:

Growth in the number of children in care has stagnated

In 2012, the number of children placed in care, total of 10,675, stayed at the same level as the year before. The number of new cases of taking into care fell by 143 children, showing a decrease of 4 per cent on 2011.

The number of children in emergency placement has been increasing sharply since 2005, but now the growth has slowed down. There were 3,944 children in emergency placement in 2012, showing an increase of 1.5 per cent on 2011.

During the year, a total of 17,830 children and young people were placed outside the home, an increase of 1.6 per cent on the previous year. There were more boys placed outside the home than girls.

Half of the children in care at the end of 2012 were placed in foster families. Of these children, 11 per cent were placed with relatives or friends.

There were 1.6 child welfare notifications per child in 2012, and the notifications concerned altogether 64,391 children.

Around 87,200 children and young people received support in community care in 2011. This was 7 per cent more than in 2010. Some 7 000 clients in community care received after-care.

Source: Child welfare 2012. THL. http://www.julkari.fi/handle/10024/110691

Main principles of child welfare in Finland (Child Welfare Act: Chapter 1, Section 4)

to promote the child’s development and well-being

to support parents and other custodians in the child’s upbringing and care

to prevent problems and intervene when necessary

The centre of the focus is the child and the following points have to be ensured when considering various possibilities and decisions in child welfare:

a balanced development and wellbeing along with close and permanent relationships

an opportunity to get affection and understanding along with care and supervisionaccording to child’s age and level of maturity

an education consistent with the abilities and wishes of a child

a safe environment for growing up and the right for physical and mental integrity

a sense of responsibility in growing up and becoming independent

an opportunity to be involved and influence their own issues

the linguistic, cultural and religious background must be taken into account

Actions should be as discreet as possible and the open care services must be used as primary means of help unless the need of a child requires otherwise. When substitute care is in the best interest of a child it must be arranged without delay. The aim to re-unite the family must be taken into account in substitute care while keeping the best interest of a child in mind.

Child protection in practice – the procedures in child welfare in Finland

Source: Central Union of Child welfare

The services that aim to prevent problems

Some of them are available to all citizens and others are available when needed. For example:

prenatal care for all citizens
regular health and developmental check-ups for all children under seven for all citizens
day care and preschool services for all citizens
child guidance and family counselling services when needed
pupil welfare when needed
youth work when needed
family counselling clinics when needed
peer support groups when needed
home help services and working with families when they need help and support
family conciliation when needed

Child welfare notification if you are concerned about a child ́s well-being

who: anyone, the parent, the child, police, school, neighbour basically anyone who is concerned about a child but authorities working with children are obliged to report a concern about a child
where: the municipal office of social services
what happens: social workers have a duty to investigate every report
no measures are taken before the investigation unless the child is in immediate danger
sometimes the report is a mistake and the case is closed
if the child and the family need help, a client plan is made

The basic principle is to help the child and the family so that the children could live in their own homes with their families. These primary services are called support means in open care. They are voluntary and based on co-operation.

They can be for example:

family help at home
support person or support family for the child
financial aid for for example to help with hobby costs
peer group activities
therapy services
placement of the whole family in family or institutional care
holiday and recreational activities

Taking into Care

Sometimes parents are unable to take care of their child for one reason or another. Sometimes a child does something harmful to him/herself. If the problems are so severe that a child is not safe at home or the harm done by themselves is too risky and there is no other way to improve the situation, the only solution is to arrange the care away from home. Children must be taken into care and substitute care must be provided for them by the officials responsible for social services if:

their health or development in seriously endangered by lack of care or other circumstances in which they are being brought up
they seriously endanger their health or development by use of intoxicants, by committing an illegal act other than a minor offence or by any other comparable behaviour

Taking a child into care and substitute care may be resorted to if

the open care services would not be suitable or possible or have proved to be insufficient
substitute care is estimated to be in the best interest of a child

Substitute care

as family care (a foster family)
a professional family home
institutional care

The placement away from home may be a short-term solution to a difficult situation. Emergency placement is implemented if a child is in danger. Taking into care is the final option. Taking into care is prepared together with the family and may take a long time. Sometimes taking into care must be done even though the family opposes it. A child taken into care goes to live in a foster family or child protection institution. The child stays in care as long as it is needed but if the circumstances that led to placement away from home change for the better it is necessary to find out whether the child could return home.

After care

those who are taken into care have a right to after care if the placement has lasted more than six months
the purpose is to help the child to return home or a young person to become independent
it may include support for housing, livelihood, work or studies.

More information

Survivors Group in Pesäpuu

The Survivors’ focus group consists of young volunteers between the ages of 16-26 who are or have been in alternative care. The group was formed in 2008 as part of the Youth in Alternative Care project under the auspices of the Finnish NGO Pesäpuu – Centre of Expertise in Child Welfare which is financed by the Finnish Slot Machine Organisation (RAY).

See ‘Protect your Dreams – Safeguard the Hope: Children’s Contribution to Developing High Quality Alternative Care’ – the Ombudsman for Children in Finland.

We Believe in You, So Should You

The first handbook for children and youth in alternative care in Scandinavia was published in 2010 by the Selviytyjät Survivors Focus and Development Group. The title ‘We Believe in You, So Should You’ served as a basis to a seminar. From this the group developed a special tool to help others develop methods to better hear the needs of children.

There is more information about the guide here

About Family Policy in Finland

See Child and Family Policy in Finland – the aim of Finland’s family policy is to create a safe environment for children to grow up in and to provide parents with the material and psychological means to have and raise children. In recent years, the emphasis has been on reconciling paid employment and family life, strengthening fatherhood and ensuring an adequate level of income for families.

About Inter- Country Adoption Affairs

The Finnish Board of Inter-Country Adoption Affairs (Finnish Adoption Board) is the expert body in inter-country adoption affairs in Finland. It is subordinated to the Ministry of Social Affairs and Health. The Board was founded in 1985 and has since 1 July 1997 acted as the central authority meant in the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Convention). This is what we understand by adoption in Finland.

The Nordic perspective on child welfare.

See Social Welfare and Child Welfare politics through Nordic lenses

Children and families are at the heart of social work all over the world, but, until now Nordic perspectives have been rare in the body of English-language child welfare literature. Is there something that makes child welfare ideas and practices that are in use in the Nordic countries characteristically ‘Nordic’? If so, what kinds of challenges do the current globalization trends pose for Nordic child welfare practices, especially for social work with children and families?

Covering a broad range of child welfare issues, this edited collection provides examples of Nordic approaches to child welfare, looking at differences between Nordic states as well as the similarities. It considers, and critically examines, the particular features of the Nordic welfare model – including universal social care services that are available to all citizens and family policies that promote equality and individuality – as a resource for social work with children and families.

Drawing on contemporary research and debates from different Nordic countries, the book examines how social work and child welfare politics are produced and challenged as both global and local ideas and practices. “Social work and child welfare politics” is aimed at academics and researchers in social work, childhood studies, children’s policy and social policy, as well as social work practitioners, policy makers and service providers, all over the world who are interested in Nordic experiences of providing care and welfare for families with children.

What power does the court have to make orders about children who come from another country?

Jurisdiction derives from habitual residence.

Habitual residence is a ‘matter of fact’.

Habitual residence requires physical presence.

Children only recently present or intermittently present in the jurisdiction

Date to determine habitual residence

Law regarding the habitual residence of a baby

Conclusions

Further reading

A case about adoption and the best interests of children.

Background to the claim

Article 8 and the right to a family and private life/ Article 14 prohibition on discrimination

Russian Government – ban on adoption by US nationals was ‘measure of last resort’ to protect children

US parents response – no objective justification for ban

The Decision of the Court – in imposing ban on adoption, no consideration given to the interests of the children

The Article 3 breach

Submissions of third party intervenors about the importance of early permanence for children.

Damages

The Partly Concurring Opinion of Judge Dedov

ANNEX III: COMPARISON OF GROUNDS FOR ADOPTION WITHOUT CONSENT IN EU MEMBER STATES

Abandonment or Lack of Contact with Child

Deprivation of Parental Rights

Dispensing with Consent

So we can see that England really is not alone in allowing adoption without parental consent – every country has some mechanism for doing so. What makes England unique, however, is the extent to which this mechanism is used.

Are we alone in Europe?

Every country in Europe permits ‘forced adoption’

Three different mechanisms – abandonment, parental misconduct, child’s welfare

Child has been abandoned

Parental misconduct

Dispensing with parental consent by overriding an unjustified refusal, or in the child’s best interests

A shift to a process based on the welfare of the child

But what makes us unique is the extent to which we rely on ‘forced adoption’.

So what is happening to the children in other countries? And why are outcomes for children in care in the UK so bad?

Further reading

Heading to Helsinki to take the leap of co-working

We are out of step with Europe

The courage to communicate

What’s happening in Finland to improve communication between parents and professionals?

Children

Parents

Take the leap of co-working

OPCA litigation – the Canadian Perspective

Freeman philosophy as a ‘virus’ : the epidemiological model.

The Three Waves of OPCA belief

Review of Canadian Jurisprudence

McKenzie friends

Academic Commentary

The Canadian experience of Freeman and Family law

The Categories of OPCA in Canadian Family Law

Canadian approach – Freeman beliefs in and of themselves equal bad parenting

Robert Menard

There’s a weird symmetry that these desperate, traumatized parents will be the last Freemen – the ones who just won’t give up – and in that way they are precisely the same as the first.

Adoption is not the solution?

EDIT – 9th August 2015 Claire Fenton Glynn explains the position re Finland

Main issues and questions in child protection at the moment in Finland

Child welfare in Finland

Basic principles and procedures and what is going on

Main principles of child welfare in Finland (Child Welfare Act: Chapter 1, Section 4)

Child protection in practice – the procedures in child welfare in Finland

The services that aim to prevent problems

Child welfare notification if you are concerned about a child ́s well-being

Taking into Care

Substitute care

After care

More information

Survivors Group in Pesäpuu

We Believe in You, So Should You

About Family Policy in Finland

About Inter- Country Adoption Affairs

The Nordic perspective on child welfare.