Recommendations to the institutions of the European Union

Set out below are the recommendations of Dr Claire Fenton-Glynn in her study submitted to the European Parliament in June 2015; ‘Adoption without consent’

The full study is an excellent and clear guide to existing law and practice.

Recommendations to the institutions of the European Union

Co-operation between member states in cross border cases

• That a guide to good practice be drawn up by the European Union concerning cooperation between Member States under the “Brussels II a” Regulation, and in particular focusing on:
  • Guidance for child protection services in dealing with cross-border cases;
  • Providing information on the workings of child protection systems in different Member States;
  • Setting out guidance as to the correct test for asking another state to assume jurisdiction under article 15.

• That consideration be given to strengthening the provisions of the “Brussels II a” Regulation, including:
  • Placing a duty to inform foreign authorities of child protection proceedings before the court be made mandatory, unless the safety or welfare of the child demands otherwise;
  • Including a common, autonomous understanding of habitual residence, as defined by the Court of Justice of the European Union;
• Strengthening cooperation in cases of placement of a child in another jurisdiction under article 56, including:
  • Creating a specific mechanism for a request for transfer to be made under the Convention;
  • Setting clear rules for when a transfer should take place, and what factors should be considered.

To encourage greater understanding between Member States

• That a greater understanding is encouraged between Member States of the different approaches to child protection. In particular:
  • That research be undertaken concerning different forms of public care be used in each jurisdiction, including both short-term and long-term care options;
  • That statistics and information be compiled concerning the outcomes for children in different forms of public care in different jurisdictions;
  • That statistics be compiled concerning the number of adoptions in each jurisdiction, disaggregated by age, gender, reasons for adoption, ethnic and religious minority status, immigration status and socio-economic background, and whether parental consent had been given;
  • That statistics be compiled concerning successful reunifications of the child with their birth family, following a period in state care.

Recommendations to the UK Government

Proper allocation of resources, training and staffing

• That adequate financial and human resources be allocated to local authorities to be able to fulfil their duties in relation to child protection, and that such services be protected in times of austerity.
• The government must ensure that social services are adequately staffed with qualified personnel who are paid appropriately for their work. That families continue to be provided with assistance where they are experiencing difficulty, in order to prevent, where possible, children being taken into public care. In particular:
  • Authorities should ensure that all families are able to practically access offered services, and that language is not a barrier in this respect.That the right of the child to communicate in their own language with their family be recognised, including: that children be permitted to communicate with their parents and family members in their native language; that adequate resources be allocated to ensure that appropriately qualified interpreters are available for the purposes of the social worker.

Improve the outcomes for children in care and promote open adoption

• That greater emphasis be placed on improving the outcomes for children in public care, and developing alternatives to adoption for children who cannot return to their families.
• Where adoption is necessary, emphasis should be placed on establishing open adoptions, and ensuring post-adoption contact between the child and his or her birth family, unless this is contrary to the child’s best interests.
• The complete severance of all legal and social ties between a child and their birth family should only be considered in the most severe and exceptional circumstances, which are not necessarily present in all cases where a child cannot return to their birth family.
• That despite the removal of the explicit requirement to consider the child’s cultural and linguistic origins, local authorities continue to give due consideration to the child’s needs and background, and place the child in a compatible placement wherever possible. This factor should be given particular importance where the child has a connection with another jurisdiction.
• That disaggregated data be compiled concerning the frequency with which children from other EU member states are taken into public care, and the rate at which they are placed for adoption.

Development of good practice regarding co-operation with foreign authorities

• That the good practice set out by the President of the Family Division in relation to cooperation with foreign authorities be included in Practice Directions for the court. In particular, the following should be emphasised:
  • That there should be no obstacle imposed on free communication and access between a party who is a foreign national, and the authorities of the relevant foreign state;
  • That permission be granted for accredited consular officials to be present at hearings as observers in a non-participatory capacity;
  • That permission be granted for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.
  • That social workers be given training on the appropriate steps to be taken when working on a case involving a child, parents, or potential carers in another jurisdiction. Such training should include knowledge of the relevant guidance set out by the Department of Education, and involve:
    • Ensuring that when carrying out an assessment of a child, where he or she has links to a foreign country, local authorities consider engaging with social work authorities in the other jurisdiction in order to understand the child’s case history and/or to help them to engage with the family;
    • When a child with links to a foreign country becomes the subject of a child protection plan, has required immediate protection, or is made subject to care proceedings, the social worker should consider informing the relevant foreign authority, unless doing so is likely to place the child or family in danger; and
    • Ensuring that potential carers and care in the foreign jurisdiction are adequately considered.
  • That greater knowledge of the provisions of the “Brussels II a” Regulation be promoted amongst legal and child protection professionals, in particular concerning the division of responsibilities under that instrument, including:
    • That requests under the Regulation must be clearly focused on one or more of its provisions and must be distinguished from requests for evidence which must be made under the Evidence Regulation;
    • That the agency given primary responsibility for cooperation and communication under the Regulation is the Central Authority;
    • That Central Authorities, and other foreign State Agencies, are under no obligation, and cannot be placed under any obligation, to comment on or become engaged in proceedings in England;
    • That courts of other Member States are under no obligation to make a request under article 15, the obligation being on the courts of England and Wales;
    • That embassies and consular officials are given no role under this Regulation, and should not be used as proxies for Central Authorities.

Continuing recognition of the importance of transparency

• That there continues to be recognition of the importance of transparency in the family justice system, including:
  • Ensuring open and public debate in the media;
  • Allowing parents to express their views publicly about their experiences, while recognising the need to protect the child’s best interests;
  • Providing clear and easily accessible information to parents concerning their rights in this respect, while also highlighting the reasons why the child’s identity cannot, and should not, be revealed.