Family Life for Children in State Care

Abstract

This paper examines what set of familial circumstances allow for the justifiable interference with the right to respect for family life under Article 8, echr. We analyse all the Courts’ judgments on adoptions from care to find out what the Court means by a “family unit” and the “child´s best interest”. Our analysis show that the status and respect of the child’s de facto family life is changing. This resonates with a view that children do not only have formal rights, but that they are recognised as individuals within the family unit that states and courts must address directly. Family is both biological parents and child relationships, as well between children and foster parents, and to a more limited extent between siblings themselves. The Court’s understanding of family is in line with the theoretical literature, wherein the concept of family reflects the bonds created by personal, caring relationships and activities.

Securing permanence for children in care: A cross‐country analysis of citizen's view on adoption versus foster care

“…Our findings also make it relevant to discuss the standpoint of the position of the ECtHR in terms of securing permanency for children. The Court has taken a very strong position on statements around the principle of temporary care arrangements for children in care, although the Court is also aware that this is not a universal norm because adoption from care is a measure that the Court acknowledges is meaningful for children and are used in many countries (Breen et al, 2020). This seemingly under‐communication by the Court on the importance of the permanency principle and children's right to a family life albeit it is not the natural family, may be highly problematic, as it is both in contradiction with the CRC Article 20 (referred to above), and as our findings display, the opinions of large portions of the populations in many of the Courts member states.…”

“…In England and the USA, for example, adoption from care is an explicit policy choice to secure children permanency (Berrick, 2021; Thoburn, 2021), whereas in Ireland and Finland adoption is only rarely used (Burns & McCaughren, 2021; Eriksson & Pösö, 2021). There seems to be an increased attention in on the use of adoption from care, because it is believed to be in the best interest of the child (Berrick et al, in press; Breen et al, 2020; Helland & Skivenes, 2019; Pösö et al, 2021a). The recognized psychologist Prof Palacios, together with an interdisciplinary and international team of researcher in the field, point out ‘… that adoption provides a legitimate model for the alternative care of children if undertaken within a rights and ethics framework that emphasizes children's best interests, as set out in international conventions and national laws’ (Palacios et al, 2019, p. 57).…”

“…Adoption is however considered controversial because it involves irreversibly terminating legal bonds between birth parents and the child and is therefore considered a much more intrusive intervention than a temporary placement in a foster family. For example, the European Court of Human Rights (ECtHR) has stated that only in exceptional circumstances and with an overriding child's best interest consideration could (and should) the parental rights be terminated (Breen et al, 2020). The Court has made it a principle that all placements of children in public care should seek reunification with birth parents/family and thus be temporary (Grand Chamber judgement Strand Lobben and others Norway, 2019).…”

Creating ‘family’ in adoption from care

“…While the former is nonsensical in that we all have family at least in the narrow sense of biological kin, the latter would be impossible to enforce if understood as having meaningful and loving relationships with our family members. Indeed, the human rights approach is more modest in respecting family life where it already exists or where it is developing, which poses challenges in cases of very young children (Breen et al 2020). Stability, the law can provide; meaningful family life not so much.…”

“…Depending on age and circumstances, young children are unlikely to grasp fully the relevance of legal 'parent' status, or the wider legal and social implications of its transferral. Beyond consent, a review of adoption from care cases before the European Court of Human Rights (ECtHR) has shown that consideration of the child's views and opinion remains the exception (Breen et al 2020). While the child's right to be heard has been formalised in Art.…”