June 5, 2011
Sloan: "Conflicting Rights: English Adoption Law and the Implementation of the UNCRC"
Brian Sloan (Univ. of Cambridge - King's College) has posted "Conflicting Rights: English Adoption Law and the Implementation of the UNCRC" on SSRN. Here is the abstract:
Under the Adoption Act 1976, the welfare of a child to be adopted was merely the “first” consideration in adoption decisions in England and Wales. The child’s welfare became the “paramount” consideration when the Adoption and Children Act 2002 commenced in 2005. This ostensibly brought English Law into line with Article 21 of the United Nations Convention on the Rights of the Child, which requires states inter alia to “ensure that the best interests of the child shall be the paramount consideration” in the context of adoption. This paper considers the scheme of the 2002 Act and conducts a survey of the domestic adoption case law under it in the light of some of the requirements of the UNCRC, with particular reference to the implications of the Act for the child’s relationship with his or her birth family both pre- and post-adoption. It argues that the judiciary’s understanding of the “paramountcy” of best interests when applying the Act, their treatment of the child’s birth parents and his or her relationship with those parents and their emphasis on achieving a secure adoption placement without delay risk infringing certain other provisions of the Convention. It is not contended that the additional rights conferred by the UNCRC should be given priority over the child’s individual and immediate best interests in every adoption decision. But the paper highlights the fact that the implementation of the UNCRC in the field of adoption law is far from straightforward.
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The child's welfare needs to be the paramount consideration in all court systems but this is especially true in a 'common law' court system where the attorneys are advocating the welfare of their clients, but often the children and their welfare is easily overlooked.
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