Making and Breaking Family Life: Adoption, the State, and Human Rights
| Author | Sonia Harris‐Short |
| Published date | 01 March 2008 |
| Date | 01 March 2008 |
| DOI | http://doi.org/10.1111/j.1467-6478.2008.00413.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 35, NUMBER 1, MARCH 2008
ISSN: 0263-323X, pp. 28±51
Making and Breaking Family Life: Adoption, the State,
and Human Rights
Sonia Harris-Short*
This article explores the extent to which the state's duties and
responsibilities in the context of adoption are framed and reinforced by
a rights-based discourse. It argues that the human rights paradigm
plays an invaluable role in the pre-adoption process by identifying and
imposing ever more exacting obligations on the state ± obligations
which are currently not being fully met by the Adoption and Children
Act 2002. The application of a rights-based discourse to the post-
adoption context proves, however, to be considerably more problem-
atic. Indeed, it is argued that rather than extend and strengthen the
state's responsibilities towards the child and the adopted family,
liberal rights-based doctrine tends towards a more traditional model of
adoption in which a minimalist state and the privacy, autonomy, and
self-sufficiency of the new adoptive family are further entrenched. It is
thus concluded that a human rights analysis provides no secure basis
for challenging the Adoption and Children Act's rather limited
provisions on post-adoption support.
INTRODUCTION
The state bears a heavy responsibility when it seeks to place looked-after
children for adoption. Having removed a child from his or her family of
birth, the state thereby instigates a legal process aimed at irrevocably
terminating family life between the child and his or her birth parents.
Following termination of family life with the birth parents, the child is then
legally `reborn' into a new adoptive family. Through adoption the state is
thus uniquely engaged in the process of creating and destroying family life.
28
ß2008 The Author. Editorial organization ß2008 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Birmingham Law School, University of Birmingham, Edgbaston,
Birmingham B15 2TT, England
s.r.harrisshort@bham.ac.uk
The state's role in transforming the child's core familial relationships gives
rise to substantial duties and responsibilities on the part of the state owed not
only to the child but to all members of the `adoption triad'. The purpose of
this paper is to explore the extent to which the duties and responsibilities of
the state in the context of adoption are framed and reinforced by a rights-
based discourse and whether, in light of that discussion, the current law on
adoption, as contained within the Adoption and Children Act 2002 (ACA
2002), meets the normative imperatives of that discourse. It will be argued
that a rights-based approach plays an invaluable role in helping to delineate,
extend, and reinforce the state's duties and responsibilities throughout the
adoption process. In this context, the application of a liberal rights-based
discourse is relatively straightforward. The imperative of non-intervention
into the private family life of both the birth family and the child underscores
the essential responsibility of the state to respect the autonomy and integrity
of the family. Thus adoption as an extreme measure of state intervention into
the birth family will only be capable of justification on overriding welfare
grounds, the responsibility for establishing such grounds resting firmly with
the state. To the extent that it is argued the state holds more extensive
responsibilities during the adoption process, including obligations of a more
positive nature, these responsibilities are inextricably linked with the far-
reaching responsibility on the state to justify its intervention or fall largely
within the familiar and relatively uncontroversial realm of procedural rights,
with a right-based discourse reinforcing the responsibility of the state to
ensure due process and fairness in all its decision-making bodies. In order to
justify an adoption, a rights-based discourse thus demands that all the
various rights and interests of the parties are carefully articulated and
properly and fairly considered at every stage of the decision-making process.
Other core liberal principles now embodied in the human rights paradigm,
such as equality and non-discrimination, reinforce these responsibilities on
the state when acting in the pre-adoption context. In contrast, because of the
socio-economic nature of the rights in question and continuing ambivalence
concerning the appropriate role of the state in the provision of family
support, the application of the human rights paradigm to the post-adoption
context is considerably more problematic. Indeed, it will be argued that
rather than imposing more extensive and exacting duties on the state,
particularly with respect to the provision of post-adoption support, a rights-
based approach helps to underpin a more traditional and conservative model
of adoption in which a minimalist state, respect for family autonomy, and the
negative obligation of non-intervention into the private family life of the
adoptive family are regarded as key.
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ß2008 The Author. Editorial organization ß2008 Cardiff University Law School
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