Are we unusual in permitting non-consensual adoption?

Published: 2nd Nov 2015

In brief

Claim

Adoption without parental consent is unusual outside England and Wales.

Conclusion

Research suggests that all or most other European countries do allow non-consensual adoption in some circumstances. But it seems much rarer in practice than in England and Wales.

"England is unusual in Europe in even permitting adoption without parental consent, indeed in the teeth of parental opposition—what I shall refer to as 'non-consensual adoption'—and even more unusual in the degree to which it has recourse to non-consensual adoption"

Sir James Munby, President of the Family Division, 2 November 2015

"Only three out of 28 European Union countries allow forced or non-consensual adoption."

Sir Nicholas Mostyn, High Court judge, 18 September 2014

Orders for adoption, Sir James Munby once wrote, are "amongst the most drastic that any judge in any jurisdiction is ever empowered to make".

Particularly sensitive is the issue of children adopted without parental consent. That can happen where parents aren't capable or available to give consent, but also over an explicit parental refusal when a child's welfare requires it.

This is "the last resort", only allowed "where nothing else will do".

In the Court of Appeal today, the same judge claimed that such "non-consensual" or "forced" adoptions are rarely possible outside the legal system of England and Wales.

This idea has found its way from the pronouncements of respected family court judges into newspapers. But academic researchers have challenged it.

Research suggests that non-consensual adoption is theoretically possible across Europe

"Contrary to popular opinion, every country in Europe has a mechanism for permitting adoption without parental consent, in certain circumstances", according to Dr Claire Fenton-Glynn in a study published earlier this year.

A separate report from 2014 disagrees that it is universally possible, but accepts that there are at least 20 European countries where adoption can take place without consent.

We don't know where Mr Justice Mostyn sourced the figure of three out of 28 EU countries. ITV has reported along similar lines in the past, saying that "the United Kingdom is one of only two countries in the European Union to allow forced adoption—the other is Croatia".

But Dr Fenton-Glynn lists a dozen countries that are similar to Croatia in that adoption without consent is permitted where parents have had their "parental rights" taken away. In other places, consent isn't necessary where the child has been abandoned by their parents.

As this suggests, lack of consent doesn't necessarily mean resistance, which seems to be what campaigners have in mind when they talk about "forced adoption". Overruling the express wishes of parents may also be what the President of the Family Division (who cited this research to back up his claim) meant by "in the teeth of parental opposition".

In 10 jurisdictions, including England and Wales, there are circumstances where active parental refusal can be overridden in granting the adoption order, according to Dr Fenton-Glynn.

It seems fair to say that these countries are in the minority, although not necessarily unusual.

Experts think England and Wales uses non-consensual adoption a lot more in practice

Whatever about the theoretical possibilities, England and Wales certainly seems unusual in "the degree to which it has recourse to non-consensual adoption". Dr Fenton-Glynn says that "few—if any—States exercise this power to the extent to which the English courts do" (although there don't appear to be comparable statistics available).

As a result, there have been complaints from other European countries about how our care system works. The case that the Court of Appeal decided today, for instance, was about a Hungarian family.

A lot more detail on "forced adoption" is available at the Child Protection Resource.


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