ADOPTION WITHOUT PARENTAL CONSENT Dr Claire Fenton-Glynn

THREE KEY ISSUES: 1.Consent to adoption  Potential conflict between children’s rights and parental interests  How can we balance this? 2.Is adoption the best option?  What other mechanisms could be used to protect children, without terminating parental ties? 3.Who is a parent?  Who is recognised as a “parent” whose consent must be sought?

WHO MUST CONSENT TO ADOPTION? Most European jurisdictions simply require the consent of “both parents” to the adoption – as long as they have not been deprived of parental authority: Albania, Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Croatia, the Czech Republic, Estonia, France, Germany, Greece, Lithuania, Luxembourg, Moldova, Monaco, Poland, Portugal, Russia, Serbia, Slovenia, Spain and Ukraine. But some condition consent on the parent’s marital status, either directly or indirectly: Malta: Unmarried father does not have to give his consent, even if he has recognised the child Consent only needed from parents with parental responsibility, or who have “custody”: Austria, Denmark, Iceland, Ireland, Norway and Sweden. Unmarried mother has sole PR, but father can apply to court to be recognised (in all but Austria)

WHO MUST CONSENT? (cont.) Whether consent is needed depends on involvement with child: Netherlands: Consent can be dispensed with if parent has not, or hardly ever, lived with the child as a family Switzerland: Consent not required from a parent who has not cared for the child “to any meaningful degree” Cyprus: Requires consent from any person who is liable to contribute to the financial maintenance of the child Approach of the ECtHR: Must first establish “family or private life” under Article 8 Where a child is born within wedlock, this exists automatically BUT an unmarried father will have to prove that he has a relationship with the child – a mere biological link is insufficient

IS THERE AN OBLIGATION TO REGISTER THE FATHER? Having the right to consent to your child’s adoption is only effective where you are recognised as a parent in the first place! England: There is no obligation to name the father X County Council v C [2007] EWHC 1771 (Fam): We can seek to persuade, but we cannot force or coerce. Re C v XYZ County Council [2007] EWCA Civ 1206: No obligation to make any enquiries into the identity of the father of a child placed for adoption, unless these would further the prospect of finding a long-term carer for the child without delay. Welfare Reform Act 2009: would have required mothers to register the father, but never brought into force.

A MORE PROACTIVE APPROACH? Obligation on the registrar to discuss with mother (Croatia, Montenegro, Slovenia) Contact the mother of a child born outside of wedlock, and ask her to give a statement concerning the identity of the father Obligation to institute proceedings to establish paternity (Denmark) Duty to disclose information, but violation not punishable Enquiries of friends and family (Sweden) Make a list of who the mother has has sex with, and ask them to undergo DNA tests National advertising campaign (Florida)

RESPONSIBILITY ON FATHERS? “Putative fathers registry” In 30 US States Man must inform the government who he has had sex with For example: Florida: any man who engages in a sexual relationship with a woman is deemed to be on constructive notice that a pregnancy may occur Has a duty to protect his own interests and must inform the registry, otherwise there is no obligation on the state to seek him out Illinois: must register within 30 days of birth If he does not register, father is not entitled to notification of proceedings Barred from asserting any interest in the child Failure to register deemed abandonment of the child Lack of knowledge of pregnancy or birth not irrelevant

CONCLUSIONS Cannot simply look at the adoption decision in isolation – part of an integrated approach to family law and child protection Must ask: Who do we recognise as a parent? Who do we see as having an interest in caring for the child? Important to take a child-centred approach Right to identity Right to know and be cared for by BOTH parents