Abstract
Reviewed by Judith Masson, Professor of Socio-Legal Studies, University of Bristol
This book is aimed at a lawyer readership – practitioners, academics and students at all levels. It is a ‘book about law’ which examines how International Human Rights Law has shaped the law and practice of adoption in contrasting jurisdictions: England and the USA as examples of Common Law countries; France and Germany from the Civil Law tradition; and China and Japan as (very different) examples from Asia. In terms of human rights, all the chosen jurisdictions except the USA are parties to the UN Convention on the Rights of the Child (UNCRC); all but Japan are parties to the Hague Convention on Inter-country Adoption (ICA); and the three European States are members of the European Convention on Human Rights. Added to this, there is diversity in the implementation of the provisions signed up to and in the underlying policy approaches each has taken to the use of adoption. Rather than focus narrowly on one use of adoption, the book explores human rights considerations across the full range of adoption practice: step-parent, kinship, international, following relinquishment, from care, and includes the adoption of adults. It is this breadth which makes the book unique.
The messages from such diverse coverage are of varying responsiveness to human rights and of change – adoption in any of its forms is not what it once was – and may not survive. Whether the author sees this as a good thing is unclear.
In any comparative law analysis there is always an issue of the boundaries of the subject. The use of adoption, particularly within the family and of adults, depends in part on whether there is testamentary freedom and the approach taken to maintain relationships with former parenting partners. Although the author makes clear his intention to examine the different uses of adoption, it was less clear whether legal mechanisms that do what adoption does under a different name or using a different procedure have been considered. For example, is special guardianship, which is remarkably similar to ‘simple ‘adoption in civil systems and ordinary adoption in Japan, included? Also, recognition, which in civil systems allows the mother to create a legal family by naming her husband as the father of a non-marital child?
O’Halloran discusses examples of adoption laws which are not fully compliant with human rights but without fully acknowledging the differing demands the various Conventions impose. Rather than provide an in-depth analysis of the conflicting demands of human rights laws, which necessitate in many instances a balancing between the claims of children, birth parents and adopters, the varying provisions are introduced and summarised. For example, the subsidiarity rule for ICA in the Hague Convention sets a different standard from UNCRC Article 21, so countries that favour family placement overseas above (satisfactory) residential care can be seen as compliant or not, at least for children beyond infancy. Similarly, recognition of identity rights within ECHR Article 8 would seem to preclude sealing of adoption records and giving birth parents a right of veto over the disclosure of information to those who have been adopted but the Hague Convention, in recognition of sensitivities and stigma in States of Origin does this by making disclosure subject to the consent of that State. In these areas, and in the question of the child’s right to have their carers recognised as having exclusive parenthood, greater depth and less repetition would have been welcome.
While the book has a detailed index it could helpfully have included a status table summarising the relevant Conventions ratified by the selected countries, a bibliography and lists for legislation and cases in each of the jurisdictions.
The accounts of the laws in the selected countries are only an introduction for practitioners and will be more or less useful depending on what the reader already knows. For example, the US chapter discusses the most recent legislation first so that there is no sense of how the law has developed. Nor is there a clear explanation of how Federal Law bites when adoption, even from care, is largely a matter for the States. This is crucial for any student readership, even where a text is only a resource. As a university law teacher of students from across the globe I object to the use of the term ‘UK law’. While this might be appropriate for ICA, it should not be used generally. There are (still) four countries in the Union, with four adoption laws and three court jurisdictions. The legal traditions of adoption are distinct: step-parent adoption was never as common in Scotland as in England; laws, policies and practices in adoption from care are substantially different, and so the human rights issues engaged differ too.