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.

 

Further reading

Information on comparative systems for adoption without consent can be found in the following report for the European Parliament

Further comparative information concerning other areas of adoption law can be found in: Claire Fenton-Glynn, Children’s Rights in Intercountry Adoption: A European Perspective.