Fostering and Adoption as Means of Securing Article 6 Rights in England

• Jurisdiction: South Africa
• Published date: 27 May 2019
• Pages: 363-379
• Author: Brian Sloan
• Date: 27 May 2019

FOSTERING AND ADOPTION AS MEANS OF

SECURING ARTICLE 6 RIGHTS IN ENGLAND

Brian Sloan

MA LLM PhD (Cantab)

College Lecturer & Fellow in Law, Robinson College, Cambridge*

1 Introduction

State foster care and domest ic adoption are in principle mea ns by which a

child’s “inherent right to life”1 and his or her right to m aximal “sur vival and

development”2 under article 6 of the United Nations Convention on t he Rights

of the Child (“UNCRC”) can be protect ed,3 where that child cannot be looked

after adequately by his or he r parents. The concepts of foster care and adopt ion

are the subject of an increasi ngly strong link i n England,4 though both a re

shrouded in controversy. The aim of this a rticle is to consider the compatibility

of both foster care and adoption with a rticle 6, which has been desc ribed as

one of the “foundational pri nciples of the Convention”.5 Of course, article 6

must be read in the context of the U NCRC as a whole, since as the Commit tee

on the Rights of the Child (the “Commit tee”) itself has pointed out “the right

to survival and development can on ly be implemented in a holistic man ner,

through the enforce ment of all the other provisions of the Convention”.6 The

present article focuses pa rticularly on recent developments i n English Law

concerning bot h foster care and adoption,7 including the r eforms introduced

by the Children and Families Act 2014 (“Children and Families Act”).

At the outset, it is import ant to note that unlike the European Convention on

Human R ights8 t he UNCRC as a whole has not yet been in corpor ated i nto Engli sh

* The author is g rateful for the opport unity to attend the Ar ticle 6 CRC Colloquium in Stellenb osch in

March 2014, and to the othe r attendees a nd the anonymous r eferees for their c omments on earl ier versions

of this paper. Al l errors are the re sponsibility of th e author.

1 Art 6(1) of the United Nat ions Convention on the R ights of the Child (ad opted 20 November 1989, entered

into force 2 Sept ember 1990) 1577 UNTS 3.

2 Art 6(2) of the UNCRC.

3 See also the chi ld’s right to “the enjoyment of the h ighest attainabl e standard of health” (ar t 24(1)) to “a

standard of l iving adequate for t he child’s physical, mental, s piritual, mor al and social developmen t” (art

27(1)), to education (art 28) and to speci al protection if he or sh e is disabled (art 23).

4 Since “[a]doption policy a nd functions of loc al authorities in r elation to adoption a re matters devolved to

the Welsh Governme nt” (Children and Fami lies Act Explanator y Notes para 41), this articles fo cuses on

English Law per se.

5 T Buck Internat ional Child Law 3 ed (2014) 131.

6 United Nations C ommittee on the Rig hts of the Child General C omment 7 (2005): Implementi ng Child

Rights in Ea rly Childhood (CRC/C/GC/7/ Rev.1, 2006) para 10.

7 For a full accou nt of the law analysed in th is article see for exam ple A Bainham & S Gilmor e Children:

The Modern Law 4 ed (2013) 461-723 (part 3).

8 Human Right s Act 1998.

363

(2015) 26 Stell LR 363

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Law, 9 which is a state of affai rs that causes concern for the Commit tee.10 In its

fth per iodic report to the C ommittee, the Government has sought to justify

the status of the convention in t he Law of the United Kingdom on the basis

that “[a]s a general principle, the State Party do es not incorporate inter national

treaties dire ctly into domestic law”.11 However, the status of the European

Convention is a very clear curre nt exception to that principle. In any ca se,

the UK Supreme Cour t Justice Lady Hale has never theless emphasised that

the UNCRC imposes “bindi ng obligation[s] in international law”.12 Moreove r,

in a Supreme Court judg ment citing the present author’s previous work on

whether the English Law on adoption decisions pe r se is compatible with

the U NCRC,13 its President Lord Neuberger said explicitly that t he Adoption

and Children Act 2002 “must b e construed a nd applied bearing i n mind the

provisions of the UN Convention on the Rights of the Ch ild 1989”.14 Whatever

the precise status of the U NCRC in English Law, it is a basic premise of this

article that its subject rema ins a worthwhile eld of inquiry.

2 Foster Care

The “threshold” that mu st be crossed before a child can be compulsor ily

taken into ful l state care15 in England is conta ined in section 31(2) of the

Children Act 1989 (“Children Act” ). It re quires a judicial nding that he or

she “is suf fering or i s likely to suffer signi cant harm”,16 attr ibutable among

other things to the relevant ca re “not being what it would be reasonable to

9 See generally G v an Bueren “The Unite d Nations Convention on the R ights of the Child: The Ne cessity

of Incorpor ation into United Kingdo m Law” (1992) 22 Fam Law 373; A MacDonald “Bring ing Rights

Home for Childre n: Arguing the U NCRC” (2009) 39 Fam Law 1073; J Fortin Childr en’s Rights and the

Developing Law 3 ed (2009) 47–54. Right s of Children and Young Perso ns (Wales) Measures 2011 and s

107 of the Children a nd Families Act.

10 Committ ee on the Right s of the Child Con sideration of Rep orts subm itted by Stat es Parties u nder

Article 44 of t he Convention: Conclud ing Observatio ns – United Kingdom of G reat Britain a nd Northern

Ireland (Th ird and Fourth Repor ts) (CRC/C/GBR/CO/4, 2008) para 10. See genera lly, arts 4, 42 and 44,

para 6 of United Nat ions Committee o n the Rights of the Chi ld General Comment No. 5 (20 03): General

Measures of Im plementation of the Conve ntion on the Rights of t he Child (CRC/GC/2003/5, 2003).

11 HM Govern ment The Fifth Periodic Repor t to the UN Commit tee on the Rights of the Child: United

Kingdom (2014) 8. The report also cla ims that the UK “has n o reservations or de clarations in respe ct of

the Convention” (7), bu t several remain li sted on the relevant U N database: United Na tions “Multilate ral

Treaties Deposit ed with the Sec retary- General” Unit ed Nations Treat y Collection

Pages/ViewDetails.aspx?src=TREATY &mtdsg_no=IV-11&chapter=4&lang=en#EndDec> (accessed

05-05-2015). See B Sloan “Post- adoption Contact R eform: Compoundi ng the State-or dered Terminatio n

of Parenthood? ” (2014) 73 C L J 378 401 for discussion of a declaratio n with implicat ions for post-

adoption cont act and related mat ters.

12 ZH (Tanzania) v Sec retary of Stat e for the Home Depar tment [2011] UKSC 4 [2011] 2 AC 166 para 23. See

also R (on the applicatio n of SG and others (pre viously JS and othe rs)) v Secretary of Sta te for Work and

Pensions [2015] UKSC 16 [2015] 1 WLR 1449.

13 Re B (A Child) (Care Proce edings: Appeal) [2013] UKSC 33 [2013] 1 WLR 1911 paras 103-104, citing B

Sloan “Conf licting Rights: Eng lish Adoption Law and the I mplementation of the U N Convention on the

Rights of the Ch ild” (2013) 25 CFLQ 40 40-60.

14 Re B (A Child) (Care Proc eedings: Appeal) [2013] UKSC 33 para 73.

15 Cf the tests for i nterim care order s, which can be made where in ter alia “there are reasonable gro unds

for believing that the circu mstances with res pect to the child are as m entioned in section 31(2)” (s 38(2)

of the Childre n Act 1989; emphasis added) and e mergency protectio n orders, which may be ma de where

inter alia “t here is reasonable cause to believe that the chi ld is likely to suffer sig nificant ha rm” (s 44(1);

emphasis added).

16 S 31(2)(a) of the Children Act.

364 STELL LR 2015 2

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