Adoption Laws
Introduction
Parenting is a critical aspect of promoting a child’s overall growth and development. According to Klebanov and Travis, parents have legal rights and responsibilities that they are required to observe. However, there are some situations in which the parent’s rights over the child may be terminated legally through adoption. Adoption entails the legal process through which the adoptive parent becomes the parent of another person, the adoptee. Statsky asserts that ‘adoption culminates in the establishment of a permanent, legal parent-child relationship between the child and the person who is not the biological parent of the child.’ It is only the court can end the legal relationship established between the adoptive parent and the child by withdrawing the parental rights held. Laws and statutes on adoption vary across states.
Brayne, Carr, and Goosey assert that concerns about the child’s family rights are in some situations outweighed by the need and urgency to protect a child. For example, adoption in some states is based on the Uniform Adoption Act, which provides the step-parent the power to adopt a child without having to seek the consent of the non-custodial biological parent. However, this aspect is only possible if the non-custodial parent fails to provide the requisite support to the child. Adoption proceedings in the Court of Appeal in Re B-S (Children) EWCA Civ 1146 [2013] held that the consent of the parent can be dispensed with if ‘nothing else will do’. In this case, the Court of Appeal dismissed a mother’s appeal for the court to grant leave under s.47 (S) in a case whereby she was opposed to a court’s decision for her two children to be adopted. The Court of Appeal subsequently proceeded with the adoption. This paper examines the extent to which family court can allow children to be adopted without the consent of biological parents.
Analysis
Traditionally, obtaining the consent of biological parents has been one of the core legal requirements in children's adoption process. In spite of this view, Worthington argues that adoption can occur with or without the child’s biological parents' consent. Scherpe asserts that it is possible for a child to be legally removed from the parent’s care through a court order. However, a number of aspects must be taken into consideration. First, the relevant Local Authority such as the Children's Department must prove that the child is suffering or faces the risk of suffering and harm as a result of continued stay with the biological parents. Additionally, the local authority has to prove that the child does not receive reasonable care that contributes to his or her well-being. By satisfying this criterion, the court may issue a court order for the child to be removed from the parent’s custody. Scherpe asserts that ‘this threshold provides the protection necessary to ensure that any interference with the parents and the child’s Article 8 ECHR right to respect for family life is in accordance with the law and proportionate.’
According to Grover non-consensual adoption constitutes an extreme approach to child adoption and is usually considered as a last resort in situations where there is no possibility of any option. Adoption of children in the UK is governed by the Adoption and Children Act 2002. In the quest to deliver their mandate in protecting children, family courts are increasingly allowing child adoption without the consent of biological parents. Non-consensual adoption is applied in the child’s best interests and welfare, which is explained by the phrase ‘if nothing else will do.’
One of the notable aspects relates to the promotion of a child’s welfare, which is underlined under the paramountcy principle. However, in dispensing the biological parent’s consent in cases of adoption, the court must base its decision on comprehensive welfare issues. According to Scaife, the paramountcy principle entails ‘a legal imperative that in family proceedings the welfare of the child is paramount.’ Application of the paramountcy principle in determining a child’s adoption without the biological parent’s consent is applied if the court is of the view that different aspects might affect the child’s upbringing. However, in applying the paramountcy principle as the basis of non-consensual child adoption, the court has to take into account different considerations in order to weigh the applicability of non-consensual adoption.
Thus, the family court may allow a child to be adopted if it is of the view that it is the most appropriate approach in promoting the child’s welfare and interests. The significance of child welfare and interest in relation to non-consensual adoption is underlined in the case of Re G (Education; Religious Upbringing) [2012] EWCA Civ 1233. In this ruling, the court argued that the child’s welfare, which takes into account his or her interests and wellbeing should embrace all aspects that are likely to influence the child’s future life. Non-consensual adoption of a child is further supported by Article 21 of the United Nations Convention of the Rights of the Child 1989. The family court can also dispense the parent's consent under Section 1 of the Children Act 1989, which stipulates that the child’s emotional, educational, and physical needs must be taken into account. The Children Act 1989, further asserts that the court has to take into account the issues that are likely to put the child’s welfare at risk.
By allowing a child to be adopted without the consent of the biological parent, the parent’s rights are legally terminated. The court may adopt this approach if it considers the biological parent to be unfit to take care of the child. One of the fundamental grounds on which the court may determine the parent to be unfit is if the parent has demonstrated abuse and neglect that is injurious to the child. On the basis of this aspect, the court may also resort to nonconsensual adoption due to the parents’ continuous and repeated misconduct or habits hence leading to improper parental care. In determining the parent to be unfit, the court may assess the extent to which the parent demonstrates care necessary for the child’s emotional, mental, moral, and physical well-being. The court may also issue a placement order without the parent's consent if the parent is mentally or physically incapacitated hence affecting the parent’s ability to provide care to the child.
In addition to the above aspect, the court may also issue a placement order without the biological parent’s consent in situations of abandonment. According to Stasky, abandonment entails ‘extreme cruelty chronic abuse and neglect, the conviction of certain crimes, willful neglect, or substantial incapacity to provide care’. Non-consensual adoption on the basis of abandonment is thus concerned with promoting and protecting the child’s welfare in a situation whereby the parent has relinquished his or her responsibilities. The court may also allow a child’s adoption without the consent of the biological parent in a situation whereby a child that has been put under state custody has been subjected to neglect, abuse, or abandonment.
Conclusion
Despite the fact that obtaining the consent of the biological parent is a fundamental legal aspect of child adoption, the extent to which parental consent may be obtained is limited. Family courts can legally allow children to be adopted without the consent of the biological parent (s). However, this is only possible in a situation whereby ‘nothing else will do’. This means that non-consensual adoption may be applied as a court’s last resort. Amongst the fundamental grounds on which the court may dispense the parent's consent include situations aimed at promoting the child’s welfare and in cases whereby adoption is in the child’s best interest. Thus, in making a determination to allow the adoption of children without the biological parent’s consent, a number of considerations must be taken into consideration.
The court may dispense the parent’s consent if the parent is unfit to provide the child with the necessary mental, moral, emotional, and physical support. Examples of such situations entail if the parent has depicted misconduct such as child abuse and neglect, which might affect the child’s current and future development. The court may also dispense parental consent if it is of the view that the parent has continuous and repeated habits that might negatively affect the child’s development such as drug and substance abuse, and involvement in crime. Additionally, the court may dispense parental consent if the parent has abandoned his or her parental responsibilities. On the basis of these aspects, the court may terminate the parental rights with the objective of promoting the child’s overall well-being.
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