Research Handbook on Adoption Law, edited by Nigel Lowe and Claire Fenton-Glynn

This book is the latest edition of the Research Handbooks in Family Law Series, which addresses some of the most important issues in contemporary Family Law, and provides a thorough analysis of adoption law in relation to regulation and practice in the UK as well as in other countries. The impact of adoption on the child, the adoptive parents, the birth parents, and society is explored and discussed from different academic and inter-disciplinary perspectives. The book addresses highly relevant questions regarding the adoption institute from both a UK and international perspective and provides knowledge and insights about the past, present, and future of adoption. The book is divided into six parts: Introduction (Part 1); The Different Faces of Adoption (Part 2); The Adoption Process (Part 3); Post-adoption (Part 4); Comparative Perspectives on Adoption (Part 5); and Intercountry Adoption (Part 6). The aim of the book is to provide the information necessary to start a discussion regarding adoption and the benefits and challenges associated with it. The authors do so by bringing together scholars from across a wide range of disciplines, including law, social work, philosophy, economics, geography, education, and sociology. Among other things, this book deals with the requirements for adoption and the international law instruments protecting human rights, including the Hauge Convention on Intercountry Adoption, the UN Convention on the Rights of the Child (CRC), and the European Convention on the Adoption of Children (Revised). While contributions to the book primarily focus on the UK, as the previously mentioned headings of the different parts reveal, the book also contains comparative elements and insights into both regulation and practice in other countries that are key actors in the area of adoption, including China and the USA, thus providing a broader international perspective.

The first part of the book begins with an introduction to the field of adoption. Nigel Lowe and Claire Fenton-Glynn give an overview of adoption by first defining it. For example, the distinction between full and simple adoption is presented, and this topic is further addressed in Chapter 6, in which Machteld Vonk and Ian Summer discuss a number of issues related to simple adoption, including the opportunities it offers in terms of post-adoption contact between the child and their birth family. Post-adoption contact is also covered in Chapter 14, in which Mandi MacDonald highlights the benefits of post-adoption contact and the elements that should be considered when establishing and sustaining long-term meaningful contact. Post-adoption contact gives rise to further consideration of the child’s right to know his or her origins, and in Chapter 7, Sarah Trotter discusses one particular angle on this issue. She examines three models of secret birth and by looking at the European Court of Human Rights (ECtHR) case law discusses how a balance should be struck between the right to knowledge of origins and other rights at stake in this context. In Chapter 1, the authors continue with a presentation of the uses made of adoption, including stepparent adoptions. This is complemented in Chapter 8, in which Judith Masson presents a comprehensive overview of adoption for stepfamilies from 1926 to 2021 in England and Wales.

Another use of adoption is intercountry adoption, which is a topic covered extensively in the book. Intercountry adoption is defined in Chapter 1 as the adoption of a child from one country, commonly a developing nation, by adopters living in another country, commonly a developed nation. Peter Selman describes the rise and fall of intercountry adoption from 1995 to 2019 in Chapter 18. He points out at the beginning of the chapter that,

the annual number of intercountry adoptions worldwide increased by 94 per cent between 1995 and 2004. This was followed by a fall of 37 per cent from 2004 to 2009. Between 2010 and 2019 the annual global total fell by a further 77 per cent, making a total decline of 86 per cent between 2004 and 2019.¹

Based on extensive statistics, Selman examines this development in a global context, including the implications of COVID-19, and points out that this development will probably continue, which some will see as a response to the scandals of recent years. The scandals concern ethical and criminal issues related to adoption practices and in Chapter 19, Laura Martinez-Mora examines the practical operation and impact of the 1993 Adoption Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, including some of the main safeguards. In addition, she discusses issues, such as how to deal with identifying, preventing, addressing, and responding to abuse and illicit practices. The justifications for intercountry adoption are discussed in Chapters 20 and 21, respectively. In Chapter 20, entitled ‘Defending intercountry adoption’, Sarah-Vaughan Brakman provides an understanding of the foundational principles of the Hague Adoption Convention – the best interests of the child and subsidiarity – and argues that intercountry adoption is ‘neither factually nor normatively a last resort option, nor is the priority for domestic adoption over [intercountry adoption] justified by the principle of best interests of children’.² Continuing from Brakman’s chapter, David Smolin in Chapter 21 suggests that there is a legal mandate for ending the modern era of intercountry adoption. He opines that the intercountry adoption systems of leading receiving states and leading states of origin have systemically violated international standards and emphasizes that, ‘seventy plus years of systemic violations of human rights and child rights norms is more than enough’.³ Both chapters provide nuanced perspectives and make interesting contributions to the discussions about the future of intercountry adoptions.

Non-consensual adoption is mentioned as one of the ongoing challenges related to adoption in Chapter 1. This is a controversial topic that brings the legal relationship between parents, children, and the state to a head. Adopting a child without parental consent is the most intrusive measure the state can take against a family; yet, it is a measure that is widely used in the UK as well as in other countries. In perhaps the most notorious case, Strand Lobben v. Norway, the ECtHR did not consider that the decision-making process leading to the decision was conducted in a way that ensured that all views and interests of the applicants, the mother, and the child were duly considered. The Court was thus not satisfied that the said procedure was accompanied by safeguards that were commensurate with the gravity of the interference and the seriousness of the interests at stake.⁴ Norway has since changed its practice in non-consensual adoption cases, but the Strand Lobben case has formed the basis for discussion among scholars around the globe.⁵ However, this debate for example has not had an impact on the political agenda in Denmark, where the recently adopted Child’s Act allows the authorities to make decisions about adoption without consent up to 3 months before the child is even born. Non-consensual adoption is further discussed by Julie Doughty and Andrew Bainham in Chapters 5 and 12, respectively. The authors have two different approaches to this topic, but both contribute detailed insights into the regulation of this area – and associated challenges – in England and Wales. In particular, they emphasize the lack of opportunities for birth parents to effectively oppose adoption.

Despite the important rights considerations that exist in relation to non-consensual adoption, the book makes it clear that critical questions also need to be asked on other aspects. There are many pitfalls and risks related to the adoption process and its outcome. Julie Selwyn discusses what is known about the outcomes for children adopted from care in the UK in Chapter 13. The chapter contains interesting data on several different possible outcomes, both good and bad, and the chapter provides important guidance on what must be considered paramount for successful future adoption from care. Chapter 15 by June Thoburn, which the author suggests should be read alongside Chapter 13, provides a socio-legal perspective to understanding adoption breakdown. In this chapter, she explores the extent to which aims are achieved in adoptions from care. The primary data used in the chapter come from the USA and the UK. Further data are presented in Chapter 11, where Hege Stein Helland, Katrin Križ, and Marit Skivenes present statistics from seven European countries examining the child’s presence and voice in adoption proceedings of children from care. Applying a child equality perspective, the authors show how and whether decision-makers consider children’s views, persona, and personal perspectives when making decisions about adoption from care. Unfortunately, while the results of the research are disheartening, the comparative approach to understanding adoption is well-founded, and Part 5 of the book presents further comparative perspectives on adoption. In Chapter 16, Julia Sloth-Nielsen provides in-depth insight into adoption in Africa, while in Chapter 17 Lydia Brachen discusses adoption in ‘new family forms’. The latter includes adoption as a solution in cases of cross-border surrogacy based on emerging case law from the ECtHR and argues that there is inconsistency in the approach adopted by the ECtHR, particularly when assessing the rights and best interests of the child in each case.

One of the book’s strengths is the diversity of topics covered in relation to adoption. The different disciplines featured in the book all contribute to a broader understanding of adoption. Part 1 of the book uses law, history, and economics to provide an introduction to the concept of adoption. In Chapter 2, Jenny Keating provides a historical introduction to the significance of adoption in England and Wales, which defines a better understanding of the starting point on which many of the other chapters are based. In Chapter 3, John Tobin presents three different approaches to adoption, and based on the rights approach, he introduces the reader to the rights – primarily from the CRC – that are relevant to adoption. In the context of the rights perspective, it is also worth mentioning Chapter 10, in which Claire Fenton-Glynn and Brian Sloan focus on fathers and the adoption process. The chapter analyses not only the rights and interests of fathers but also those of the mother, child, and the state, as well as potential conflicts that may arise between them. Often the focus is on the interests of the parents versus the interests of the child or perhaps the mother versus the child or state, while the rights and interests of the father in adoption cases are rarely considered separately, and the chapter therefore contributes an interesting aspect to the understanding of the interests at stake in adoption cases.

The final chapter in Part 1 of the book deals with the economics of adoption and in this chapter, Margaret Brehm provides an overview of the economic research on child adoption, analysing supply and demand in the adoption market and discussing factors relevant to each of the markets for private domestic adoption, international adoption, and public foster care adoption. The economic perspective on adoption may be unfamiliar to a legal scholar, but it certainly constitutes essential knowledge that cannot be omitted if one wants to gain a full understanding of the topic. The book also contains a topic that is not usually discussed in relation to adoption in Europe: In Chapter 9, Elizabeth Raleigh provides a content analysis of transracial adoption in American newspapers from 2020 to 2021. The goal of the chapter, in the author’s own words, is to examine how the press reported on transracial adoption over a tumultuous period. This chapter contributes to perspectives on adoption in relation to systematic racism, among other things, thus providing an insight into some of the challenges faced with adoption.

The Research Handbook on Adoption Law sheds light on adoption from many different relevant angles, highlighting both positive and negative aspects of the adoption institution and providing relevant knowledge for students, researchers, and practitioners working with adoption, regardless of their profession. The authors present interesting critical reflections on both national and intercountry adoption – and perhaps most importantly – contributions to the discussion about the future of adoption.

Notes