Human Rights and Adoption

This is a post by Sarah Phillimore

It’s what we don’t know we don’t know that gets us every time

I was asked to speak at the recent Open Nest Collaborative Conference on Monday 14th October in York – just five minutes on human rights. O easy I thought, just a quick chat about Article 8, job done.

But then Amanda Boorman, founder of the Open Nest Charity showed me what she had written down as important to get across to the audience.

Protocol 1 Article 1 of the ECHR provides

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

Amanda, rightly, thought this was very important from the perspective of the child in the care system, who finds their treasured possessions lost or thrown away as they are moved about from placement to placement.

She also wanted to talk about Article 14 

The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

This was clearly very important in light of the growing concern about the impact of poverty on how likely it was to find yourself referred for a child protection concern.

I was shocked to consider that it had simply not occurred to me – the lawyer – to discuss either of those two issues. I was content to trot out our old favourite Article 8 – the right to a family and private life, to psychological integrity – but the right that cuts both ways for the child in the care system; their ‘right’ to retain some kind of link with their birth family, considered of less or even no importance when balanced against their need for a ‘warm, loving forever family’.

So I had to confess my embarrassment that it had not even occurred to me to examine either of these rights, despite the impact both had on children and families in care and adoption proceedings.

I recalled earlier unease when I discussed  the ECHR with social workers on Twitter and found that they did not seem aware of the importance of such rights- I wrote about that here. 

This concern had also been stated by Brid Featherstone that day, in her talk about the BASW Inquiry into the role of the social worker in adoption

She asked the audience what do YOU think we need in this framework? At every stage of process, to ask – what should social workers be doing?

Andy Bilson then raised the UN Convention on the Rights of the Child -this has has 54 articles setting out the civil, political, economic, social and cultural rights that all children everywhere are entitled to.  It is ‘the most complete statement of children’s rights ever produced and is the most widely-ratified international human rights treaty in history’ . The Social Services and Well Being (Wales) Act 2014 makes specific reference to the UN Convention in its ‘overriding duties’ at Part 7 –   a person exercising functions under this Act in relation to a child falling within section 6(1)(a), (b) or (c) must have due regard to Part 1 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (“the Convention”).

However I don’t think I have ever made reference to the UN Convention in any English case in my now 20 years of practice.  Hopefully the consideration by BASW of a new framework for social work education about human rights can bring the UN Convention more sharply into focus.

 

Why are Human Rights important?

But if I , the lawyer, couldn’t see the importance of Protocol 1 and Article 14 in the context of adoption,  without it being pointed out to me – how can I criticise social workers for not being as alive to the ECHR and its implications as I would wish?

So I thought it worth a reminder of why the human rights framework is so important when looking at State intervention in family life – particularly when the State intervenes to remove children permanently from their family of origin on a low standard of proof.

The European Convention on Human Rights (ECHR)

The European Convention on Human Rights (ECHR) protects the human rights of people in countries that belong to the Council of Europe – this is separate from the European Union and is larger, it has 47 members as opposed to the EU’s 28 (or shortly 27). Therefore it will NOT disappear if  Brexit actually happens.  This may be a disappointment to those who scoff at human rights as some kind of namby pamby pandering to snowflakes, but anyone who takes that view is revealing a disturbing ignorance about events still in living memory – when a European nation, home to great literature, music and scientific discovery, decided that it would categorise a number of its own citizens as ‘untermensch’, round them up, send them to concentration camps and kill them.

The ECHR was the response to the horrors of the German ‘Final Solution’ to eradicate the Jewish  people. It was largely drafted by British lawyers and came into force in 1953.

The Convention guarantees specific rights and freedoms and prohibits unfair and harmful practices.

  • the right to life (Article 2)
  • freedom from torture (Article 3)
  • freedom from slavery (Article 4)
  • the right to liberty (Article 5)
  • the right to a fair trial (Article 6)
  • the right not to be punished for something that wasn’t against the law at the time (Article 7)
  • the right to respect for family and private life (Article 8)
  • freedom of thought, conscience and religion (Article 9)
  • freedom of expression (Article 10)
  • freedom of assembly (Article 11)
  • the right to marry and start a family (Article 12)
  • the right not to be discriminated against in respect of these rights (Article 14)
  • the right to protection of property (Protocol 1, Article 1)
  • the right to education (Protocol 1, Article 2)
  • the right to participate in free elections (Protocol 1, Article 3)
  • the abolition of the death penalty (Protocol 13)

Although Article 6 and Article 8 will continue to be the rights of overarching importance in care and adoption proceedings, all of us who work in this field have an obligation to become familiar with ALL the rights and freedoms protected.  I note for example the right to education and the negative impact that care proceedings often bring to a child’s continuing education, ending up in a foster placement far from a much loved school.

As Elie Wiesel said, having survived the Holocaust – it is by denying our essential humanity that makes it easy to destroy another.   Taking someone’s child away is an act that strikes against the psychological integrity of both parent and child. That child may urgently need taking away, the sooner the better; but if we persist in mechanisms of removal that deny both parents and child their fundamental human dignity, then we do great harm.

We don’t fight to preserve the human rights of others simply for their sake – it is also for our own.

 

Further reading/listening

An interesting roundup of the day from the Adoption and Fostering Podcast. 

6 thoughts on “Human Rights and Adoption

  1. Angelo Granda

    A Parent’s View.

    I have waited a while with interest to see any response from other readers to this post. Nothing so far,alas. Any suggestions?

    I wonder if Amanda Boorman succeeded in getting her important points over to the audience and I wonder if it was receptive to Sarah’s comments about human rights conventions,why the convention was set up and historic abuses due to false ideology ,arrogance and dogma? Talking of which, we should never confuse voluntary adoption with enforced adoption.
    Are we all aware of the importance of these rights?
    There is a long list written down above through from Article 2 ECHR to Article 14 followed by further protocols but I doubt if they were studied in detail and with precision.
    All the time reformers are up against a system set in its ways. All the time , they are up against what can be termed homeostatic processes inherent in the system and all the time they are facing up against the dilitariness of those lawyers ,SW’s and other professionals with the POWER to instigate reforms. Vested interests and the politically inspired lean towards maintaining the status quo,obviously. When a system cries out for reform, it is always the case,let’s face reality and use our heads here! Those people have to be dealt with accordingly and changes must be discussed and set out by independents.

    If we look at the list right through from 2 to 14, they are all contravened and I think children and their parents who have suffered because of it have been complaining about it from time immemorial. Its about time something was done about it. Let lawyers quit ignoring them and cease pandering to the ‘evidence’ of the dilitary professionals presiding over all these conversations and Inquiries.
    Parents and children claim their rights are trodden on ! They should not be ignored ,especially not by the judiciary who are the ones charged with defending them.
    Why can’t we examine every article with precision one by one, point out exactly how they are contravened, undertake an error-detection process and then come up with precise safeguards and methods certain to correct errors? The current system is broken.

    For example, article 6. We should think about the provision of legal funding otherwise there will always be an imbalance of power and unfair trials. One precise suggestion to correct the imbalance in Public Law………….. the L.A. to fund both parties to a case not just the Complainant S.S. directorate.
    We should start at article 2 and go right through the lot of them,in my opinion.
    All constructive comments welcome.

    Reply
    1. Sarah Phillimore Post author

      I suspect people are probably just exhausted at the moment with Brexit etc. Either that or there is really very little interest in Human rights!

      Reply
  2. Angelo Granda

    A full PUBLIC iNQUIRY is needed preferably by Royal Commission.
    Imbalance of power means unfairness,doesn’t it?

    Interference with family life should not be ordered unless trials are fair ( and open) according to article 6. The right is contravened regularly.

    Reply
  3. Catt

    That is definetely an action that needs taking! Having been an adoptee (for the right reasons, partially voluntary, partially enforced) I ponder why why why has nothing been done about a system which is to all intents and purposes rehashing the same problems over and over generations with little change or concern. My conclusion is the issue is so big no one really has a beginning of a solution with which to start from. However, this sounds like a practical and sensible start. I’m intrigued. It’s not my profession but I will watch with interest and hope someone takes the idea and runs with it!!

    Reply
  4. Angelo Granda

    As Elie Wiesel said the problem is to a large extent indifference but ,in the case of many lawyers and Public officials ,in my opinion, it is collaboration and abject denial .
    Ordinary citizens are not indifferent but the actions and words of the powerful just do not add up. There is a lack of joined-up thinking in the cp system which is blatantly obvious to parents and child victims but irrationality amongst professionals is demonstrated by their failure to acknowledge human rights abuses particularly when they turn blind eyes and cover them up.

    Why don’t we all face the fact that there is a long-standing culture of abuse rife throughout the system . It is totally irrational for any CS department to advise or for any Judge to sanction the removal of children from family into the care-system .They are abused wickedly by the adult carers on a regular basis and even when the poor victims report it to higher authority , that authority ignores them.
    It is irrational because it is claimed to be in the children’s ‘best interests’. Rubbish.

    More revelations in the news today; this time Northern Ireland and it has been going on since the 1920’s at least.

    You will have not seen anything about it in your 20 years in Court ,Sarah, but surely it must cause us all to question the true motives of the powerful L.A. management.

    See this link:-
    https://hansard.parliament.uk/commons/2019-11-05/debates/CCC5DFA0-67BC-4FD2-B869-3222DCEECCAF/HistoricalInstitutionalAbuse(NorthernIreland)Bill(Lords)

    As usual,we can expect silence and no comment from the L.A’s and lawyers responsible for it all.

    Reply
  5. Angelo Granda

    More human rights abuse in respect of autistic children is described in detail by a Mum today on BBC radio. Here is the blurb:-

    Over the last month parents, as well as MPs and peers, have spoken out about autistic children and vulnerable adults being placed in hospitals for a long time and sometimes treated poorly. The Joint Committee of Human Rights said mental health hospitals can inflict “terrible suffering on those detained … causing anguish to their distraught family.” One mother in the West Midlands got in touch with us to tell us about her daughter. Her daughter has autism and other mental health conditions and went to hospital when she was 14. She’s now 28 and has never returned home. In fact, she’s in her sixth hospital, 80 miles from her family.

    In my opinion,this is deeply shocking but will have little effect on the child -protection and adult services professionals responsible for administering the injustice. I would stress to readers that not only are the autistic condemned to life in mental hospitals but many are assigned to privately-operated non-therapeutic secure placements with non-medically qualified carers at great cost to the NHS. These private companies,working together with Local Authorities only have to get a bozo doctor to sign a document that the child/young person lacks mental capacity and their goose is cooked for life. These ‘placements’ cost thousands of pounds a week. I have referred to Sacred Bulls before and I have little doubt that fortunes are made by entrepreneurs as a result of much suffering,misery and inhumanity.
    Sarah,once a d.o.l. order has been issued by the Court of Protection, how often must they be renewed? I am pretty sure the rules are ignored.

    Reply

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