Centre for Research on Discretion and Paternalism Bergen

Adoption from Care Proceedings in 8 European Countries

An important empirical research area at the Centre is how state intervention into the family sphere is justified, and if these decisions can withstand rational scrutiny.

Recent decades have brought children onto the agenda in new ways, and we observe that children in many societies are increasingly regarded as individuals with separate interests and rights as laid out in the world-wide ratified Convention of the Rights of the Child (CRC). One contested right is the right to protection. Through the child protection system, the state can assume parental responsibility or terminate all parental rights when parents are unable or unwilling to perform their parental obligations.

Adoptions from care is one of the most invasive and consequential decisions a state can make. These interventions represent an immensely strong state power, and simultaneously challenge individual freedoms and the privacy and autonomy of family life, but also necessary to secure the child´s best interests and possibility for a good childhood and the opportunity to realize his/hers aims for the future.

To increase our understanding of the legitimacy of the intervention and the decision-making mechanism in play, we study adoptions from care in eight countries:  Austria, Estonia, Finland, Germany, Ireland, Norway, England and Spain.

All interventions must be in accordance with law. Legislation is a structural frame that sets the standards for decision making, criteria for intervention thresholds, and the requirements to the proceedings. All eight countries under study have ratified the CRC and, seven of the countries (excluding Norway) are also members of the European Union.

These countries differ in regard of welfare state platform as well as type of child protection system. Legislation guide and instruct decision makers and the involved parties in child protection proceedings. Below is an overview of the proceeding in relation to adoptions from care for the eight countries we study.

About the overview

The overview is organized by Dr. Katre Luhamaa in April 2019, based on the writings of the following country experts: Prof. Tarja Pösö (Finalnd), Prof. Sagrario Segado Sanchez-Cabezudo (Spain), Prof. Marit Skivenes (Norway), Prof. June Thoburn (England), Dr. Jenny Krutzinna (Austria, Germany), Dr. Katre Luhamaa (Estonia), Dr. Thomas Meysen (Germany), Dr. Katrin Kriz (Autria), Dr. Kenneth Burns (Ireland).

Legal Grounds
Austria is a member of the CRC, European Convention on Human Rights, and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (since 1999). It is not a member of the European Convention on the Adoption of Children (revised).

In Austria,  adoption proceedings are regulated by section 1 of Article 194 of the Austrian Civil Code (ABGB): “The adoption of a minor child shall be granted if it serves the child’s well-being, and if a relationship [between the child and her or his adoptive parents] has been established or should be established.” The guiding principle for  adoption is the best interest of the child.

Adoptions with parental consent
Article 195(1) of the ABGB lists persons who have to give their consent for the adoption of the child: 1) parents of the minor child; 2) the spouse or registered partner of the adoptive parent; 3) the spouse or registered partner of the minor child; 4) the child with limited legal capacity that has reached majority; 5) the legal representative of the minor child. Such adoptions would be based on a written contract between the child to be adopted and the future adoptive parents and subsequent approval of the adoption by the court (Article 192 of the ABGB).

The requirement for parental consent to adoption most frequently results   in those children who are adopted domestically being adopted shortly  after birth and with the consent of the biological parents. Infants may also be adopted when their mothers gave birth “anonymously” at the hospital without providing any identifying information about themselves. In these situations, the mother communicates her wish for her child to be adopted  to the child welfare services in writing before the birth and based on Article 207 of the ABGB, the child welfare services obtain custody over the  child. The infants must remain in their adoptive families for at least six months before the child welfare services apply to the court for the child to be adopted.

Other adoptions with the consent of the biological parents are based on a written agreement between the adopted child (represented either by the biological parents or federal authorities) and the adoptive parents and subsequent approval of the adoption by the court. If the adoptive child is a minor (below 18 years), then she can be represented by a lawyer. Such contract can be drafted by an attorney, a notary public or the child welfare services and approved by the court to become legally effective.

Adoptions without parental consent
An adoption without parental consent is possible if the location of the parent(s) is not known for at least six months or they are incapacitated for longer than a temporary period (Art. 195(2) of the ABGB). The court must deny such permission if a biological child’s care or subsistence is being endangered by the adoption. Furthermore, Article 195(3) of the ABGB provides that the court has to substitute consent when a party requests this and there are no justified reasons for the refusal of consent. Adoptions without parental consent rarely occur in Austria.

Austrian law requires termination of parental rights for an adoption order to be made. Nevertheless, even in such a situation, the consent of the parents is required for adoption, or this consent can be dispensed with  by the court. Adoption is not possible without known adoptive parents.

Procedure in the court
Adoption is formally approved and decided by the generalist district court presided by a judge with expertise in family law following a closed hearing. Austrian law does not have an upper age limit for adoption and it accepts the adoption of the person who has reached majority but who has limited legal capacity. The underage  child to be adopted, the parents of a child who has reached legal majority, the foster parents or manager of the residential home where the child resides, and the child welfare services all have the right to be heard in court (Art. 196 (1)). Exceptions to this requirement  are possible, e.g. if the child is not able to provide a statement, or the hearing would endanger the child’s well-being (Art. 196 (2)). When the person to be adopted is over the age of 18, the reason for the adoption has to be spelled out  and justified.

Preparation for adoption is undertaken  by the child welfare agencies. It advises and guides the birth parents during the adoption; advises, prepares, assesses and trains the adoptive parents, and chooses suitable adoptive parents based on the child’s needs. The suitability of the adoptive parents is assessed by two professionals of the child welfare services agency (Art. 52 (1) of 2013 Child Welfare Law of Vienna) as well as by the court. Prospective adopting parents have to register with the child welfare services, which chooses persons appropriate to become adopting parents from the applicants. They also organise the contact between the prospective adoptive parents and the child. The parents typically have to live with the child approximately 6­-12 months before the adoption proceedings can commence.

When making the decision, the judge relies both on the report provided by the child welfare services and the information gathered at the hearing of the involved parties. The report by the child welfare services includes background information about the child and the birth and prospective adoptive parents, documents the birth parents’ agreement with the adoption, and provides evidence that the child has developed a relationship with their future adoptive parents that is akin or could be akin to a child-parent relationship.

The procedure in court includes an oral court hearing. The court has to hear the child, foster parents or manager of the residential home where the child resided before joining the prospective adopters, the child welfare services. Austrian legislation does not set an age-specific obligation for obtaining consent for adoption from the child. However, the child has to be heard if the court considers that it is in the best interest of this child. Before the oral hearing, the judge may meet with the birth and adoptive parents and the child if this is deemed necessary.

Adoption decision
Adoption is decided in the form of a written judgment and is sent to the involved parties. The judgment has to contain the statement that the adoption is agreed  and the relationship to the biological parents is terminated and the day the adoption order is made. The judgment is typically three to four pages long.

It contains the name of the court and judge, date of the decision, the type of decision made by the judge (adoption granted or not), followed by information about the adoptive parents, child and birth parents, the date when the decision goes into effect and the reasoning behind the decision. The section on the judge’s reasoning provides background information about the child’s care trajectory leading to the adoption and explains the reasoning in reference to the law. This judgment includes a statement about the termination of the legal relationship between the child to be adopted and a birth parent and the time at which this termination becomes valid, if consent to this termination exists (Article 89 (1)2 of the Non-Conentious Law).

The decision can be appealed with the district court within 14 days but only on significant legal grounds. The appeal is then decided by the next higher instance court responsible for the district court where the decision was made. The decision about the appealed decision can then be appealed with the Supreme Court. Appeals must be written by an attorney and are allowed only if there are very significant legal reasons, for example, when the court that decided the appeal deviated from the case law of the Supreme Court, the case law is missing or inconsistent. Adoption judgments are not publicly available.

Consequences of adoption
Adoption in Austria does not fully sever ties between the biological parents and the child. Adopted children may inherit both from their adoptive and their biological parents (Austrian Civil Code, Article 199) and birth parents remain the child’s parents within the construct of the subsidiarity principle, which means that, for example, if something happens to the adoptive parents and the adopted child needs to be moved into residential care, the birth parents will be liable to pay child support for the child (Austrian Civil Code, Article 198).

Sources

Legal Grounds
England is a member of the CRC, European Convention on Human Rights, and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (since 2003). The United Kingdom has signed but not ratified the European Convention on the Adoption of Children (revised).

The principal legislation in England and Wales is the Adoption and Children Act 2002 (as amended, ACA) but its provisions are closely aligned with the England and Wales Children Act 1989 (CA). The welfare of the child is the court’s paramount consideration and the no order and no delay principles apply (ACA Sec. 1, CA Sec 1).

Adoptions with consent
In a very small number of cases each year, each (known) parent specifically requests adoption (ACA Sections 19 and 20).  They may give consent to adoption by specific person/s or by any adopters selected by a local authority or registered adoption agency.  Their consent has to be witnessed by a social worker employed by the Children and Family Court Advice and Support Service (CAFCASS) (rights and obligations of the CAFCASS are specified in Chapter II of the Criminal Justice and Court Services Act). The law specifies  circumstances and timing when such consent can be withdrawn.  There is also separate regulation for international adoptions (Chapter 6 of the ACA), and for applications by step-parents which, although possible, are not encouraged as there are other ways to secure the legal position of step-parents (Section 112 of the ACA).

The local authority Children’s Social Care Department is a registered adoption agency and local authorities also commission adoption services from voluntary sector registered  adoption agencies.

Adoptions without the consent of each parent
English law links adoptions without parental consent with the process for making care orders – adoption orders may be part of the child’s care  plan which the court must consider before making a care order. For all children with respect to whom the local authority is considering adoption there is a three-stage family court process. When an application for a care order is made, the local authority must present to the court a short and long-term care plan. In this plan, the local authority has to consider whether placement for adoption could be appropriate.

An initial application is made for a care order (CA 1989 Section 31)under which the local authority can limit parental rights and responsibilities. If a care order is made, the court may make an (adoption) placement order at the same hearing, or a placement order may be made on a subsequent hearing (ACA Section 22).

A court may only make a placement order if each person with parental responsibility consents or the court dispenses with the consent of each person with parental responsibility. To do so it has to be satisfied that the child has suffered, or is likely to suffer, significant harm unless a care order is made and additionally that the welfare of this particular child ‘requires’ her to be adopted’ – interpreted in case law that ‘nothing else will do’ (ACA Section 52). A placement order can also be made when the parent or guardian of a child cannot be found or is incapable of giving consent. The third stage is the making of an adoption order which finally terminates parental rights and responsibilities and transfers there to the adopter/s.

There is a presumption of contact with biological parents and siblings whilst a child is in care, usually agreed during proceedings but which can be secured by the making of a CA Section 34 order. Once a placement order is made, any legal order requiring birth family contact ends, but the adoption welfare checklist ACA Section 1 requires the court to consider ‘the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant’ and must consider this in the light of the child’s wishes and any person for whom contact is being considered. At the time of or subsequent to the making of a placement order but before the child is adopted a court may make an order under ACA Section 26 ‘requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for the person named in the order and the child otherwise to have contact with each other’.

Although it is possible for those consenting to adoption to do so with respect to named person/s, most court orders sanctioning adoption are made with respect to any adopter selected by the adoption agency.

In each local authority, a senior manager (usually a senior social worker) is the nominated adoption decision maker.  He or she must approve a plan for adoption and may agree to a child being placed with prospective approved adopters who are also approved to act as temporary foster parents until the court approves the adoption plan.

A child who is to be the subject of an adoption order application must live with the prospective adopters for a probationary period prior to the making of the application (ACA section 42). The period varies depending on the type of placement. The court must be satisfied that sufficient opportunities to see the child with the applicant (s) in the home environment have been given to the adoption agency or local authority.

Procedure in the court
Adoption proceedings are heard in the specialised family court. The care and placement hearings are ‘public law’ proceedings but the final adoption order is a  ‘private law’ order. There is an emphasis on the need to conclude the adoption proceedings without a delay as this is likely to prejudice the child’s welfare. Family court proceedings are guided by Family Procedure Rules part 14.

The documentation required for adoption proceedings includes a copy birth certificate, statement of facts (if applying for dispensation of consent), a copy of any relevant order, a copy of relevant certificates of marriage, civil partnership, divorce, dissolution of civil partnership or death, medical report on each applicant and the child. The relevant adoption agency or local authority must file a detailed report on each applicant’s suitability to adopt this particular child in the light of the child’s particular needs.

The court hears parties to the proceeding as well as giving the judgment in an oral hearing. Parties to care and placement order proceedings are the local authority; the child who is represented by a solicitor or barrister and a guardian ad litem (a social worker employed by the CAFCASS); each parent and anyone with parental responsibility. Until an adoption order is made, those with parental responsibility retain this (shared with the local authority) although, very restricted. Parents have a right to non-means tested representation by a solicitor and/or barrister prior to and during care proceedings and placement proceedings if these are simultaneous with care proceedings. However, if a placement application is made when the child is already in care persons with parental responsibilities have a right to contest the making of the order and make representations about contact with the child but there is no absolute right to legal representation, and legal aid may be refused

Adoption decision
Parties to adoption order procedings are the adopter/s, the child (whose needs and wishes are set out in a detailed report from the local authority or adoption agency, as verified by a (Cafcass) Family Court Adviser, and may is some circumstances be represented by a barrister or solicitor. The legislation does not set forth a particular age for the requirement of the consent of the child, but the child’s ascertainable wishes have to be established.

Parent/s are parties and have a right to be heard but may not contest the placement order and are unlikely to be granted legal aid to instruct a solicitor.  A placement or adoption decision can only be appealed with the leave of the court; there has to be a hearing for this and only by showing that there has been a substantial change in the circumstances of the parent appealing. The local authority, the child (usually through the Guardian ad litem) or (in adoption procedings the prospective adopters) may appeal with leave of the court if the court decides against the making of a placement or adoption order.  If a placement order has been made and the child is not adopted within a reasonable time, this can be a ground for appeal. A local authority can apply for the repeal of a placement order as well as a parent, and a judge may repeal a placement order of his own volition if the case comes before him for another reason.

Care, placement and adoption orders following an established format are provided to each party  Detailed placement and adoption judgements are made orally, summarizing the evidence from all parties and the reasoning as to why the child’s welfare throughout childhood ‘requires’ adoption. Judges may ask for a transcript of judgements and transcripts can be requested by parties, but costs are a disincentive. Although publication of redacted judgements on the BAILII website (www.bailii.org) is encouraged by the President of the Family Division, for reasons of privacy for the parties or time constraints, only a small minority have been made publicly available to date (Munby, 2014; Doughty et al, 2018).

The sharing of any court papers, including by parents, is expressly forbidden other than with specific leave of the court.  Since 2009, the press have had access to family court proceedings but must have the direct agreement of the judge before they can publish any information on a particular case. Since 2018 ‘legal bloggers’ have also had access under the same conditions.

Consequences of the placement and adoption orders
If an adoption placement order is made, the child can then be placed with approved adopters. The prospective adopters (who may be foster parents with whom the child is already living in a ‘fsst-adopt’ arrangement) share parental responsibility with the local authority until an adoption order is made. After a minimum of 10 weeks, prospective adopters apply to the Court for an adoption order (ACA section 46). Until an adoption order is made, those with parental responsibility retain them (shared with the local authority and prospective adopters with whom th child is living ) but their exercise of parental rights is very restricted.

The adopted person is treated legally as if born as the child of the adopters or adopter (ACA section 67). An adoption order removes parental rights and responsibilities from the birth parents and transfers them to the adopters. An adoption order ends any prior contact arrangements but the court making the adoption order ‘must consider whether there should be arrangements for allowing any personal contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings’ (ACA Section 46). Despite this encouragement by legislators, it is very unusual for courts to make requirements for such contact, although contact arrangements are usually discussed.  Some direct contact with parents, and more often siblings and grandparents occurs by agreement, but most often this is indirect, mainly through the exchange of letters. However, since these arrangements are by agreement, they can be ended by the adopters or the birth relatives without any recourse to the court.

Sources

Legal Grounds
Estonia is a member to the CRC, European Convention on Human Rights, and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (since 2002). Estonia is not a member of the European Convention on the Adoption of the Children (revised).

Adoption proceedings in Estonia are family law transactions regulated by the Family Law Act (FLA) of 2009. As a general rule, adoption is permissible only if it is necessary for the interests of the child and there is a reason to believe that a parent-child relationship will be created between the adoptive parent and the child (FLA section 147 (1)).

A prerequisite for adoption is the termination of parental rights. The adoption process is initiated by an application of the persons wishing to adopt.

Adoptions with consent
As a rule, consent of the biological parents is required for adoption (FLA section 152). This consent can be directed towards a certain person wishing to adopt the child or the biological parents can give an open consent for adoption without specifying the adoptive parents. Most of the latter consents relate to very young children. Neither consent would have legal effect earlier than eight weeks after the birth of the child.

Adoption without consent
The FLA section 152(5) specifies three cases when parental consent is not required:

  1. The parent is incapable of submitting an application for an extended period of time;
  2. The parent’s whereabouts are unknown for an extended period of time;
  3. the parent has been deprived of the right of custody in full in accordance with section 135 of the FLA.

Before the adoption proceedings can start, the parental rights of the biological parents have to be fully terminated during termination of parental rights proceedings (usually decided during care proceedings and in accordance with section 135 of the FLA) and the full custody rights over the child are either given to the local government or are shared between the local government and the foster parents. If the biological parents retained some rights during the care proceedings (i.e. contact rights), these rights would have to be terminated by the court before the adoption proceedings start. During these proceedings, the court would also inform the biological parents of the planned adoption or of the possibility of future adoption, and the parents have the right to have their objections to it heard. Participants in these proceedings are the biological parents, the child (represented by a lawyer and the person having custody over the child) and the local government. These proceedings end in a resolution, and if the court terminates parental rights in full, the adoption proceedings commence. Biological parents have the right to have their objections to adoption heard during these proceedings as well as appeal the decision terminating their parental rights on the ground that they object to future adoption.

Procedure in the court
Adoption is initiated by the person wishing to adopt (section 159 FLA and section 564 Code of Civil Procedure, CCP)).

The Social Insurance Board (central unit for the child protection system) makes the pretrial preparations for adoption and supports the court by submitting relevant background information and a written report on the health, financial situation and housing of the applicant(s), and participates in the proceedings next to the legal guardian of the child which usually is the CPS of the local government (section 158 FLA). The Board provides an opinion on whether the applicant is capable of raising the child, caring for the child and maintaining the child (s. 567 CCP). The suitability of the adoptive parents, as well as the connection between the child and the adoptive parents, is also assessed by the court in the hearing.

If a guardian has been appointed to a child, the consent of the guardian is required for adoption. If a guardian has been appointed to a child in a situation where the parents have not been deprived fully of the right of custody in full, the consent of the guardian is required in addition to the consent of the parents. If a guardian refuses to grant consent without good reason, a court may dispense with the guardian’s consent at the request of the adoptive parent.

The law requires the consents of the person wishing to adopt, the child’s guardian (generally the local government) and the spouse of an adoptive parent. The consent of the child is required when the child is at least 10 years of age (FLA section 151).

The court holds one or several hearings to establish both the facts of the case as well as the consents required for adoption. Whether  all parties concerned meet simultaneously or separately, depends on the discretion of the judge. The court has an obligation to hear the adoptive parents and the child who is older than 10 year. In most of the cases, the adoptive parents, guardian of the child (usually the local government), the Social Insurance Board would be present. The child is usually heard by the court before the general court hearing.

Adoption is decided by a single judge in a generalist district court; the proceedings follow the Code of Civil Procedure. The proceedings can be declared closed (section 38 subsection 1 paragraph 4 of the CCP); they are investigative in their nature, and central to it is the obligation of the court to establish the facts.

Adoption decision
Adoption is formalized in the substantiated written court order (s. 478(2) CCP). The Supreme Court has stressed that the court has to give due regard to the rights and interests of the biological parents in it (Ruling No. 3-2-1-154-13 2011). The adoption ruling sets out the information to be entered into the population register as well as shows the legal basis for adoption. If a parent’s consent to adoption is not required, it is so indicated in the ruling.

The ruling enters into force once it is presented to the adoptive parents; and, if granted, it cannot be appealed or amended (s. 568 CCP) unless the consent of one of the parties whose consent is required, is missing.

Access to the court order and the case file is limited to the adoptive parents, the child and officials who need to enter the information into the public databases to protect the secrecy of the adoption (CCP s 59(4) and FLA s. 164). Only if the judgment reaches the Supreme Court, the judgment can be partially published pertaining to the discretion of the court. Granting access to the judgments for research purposes is within the discretion of the chief justices of the four district courts. There is no established formal procedure for this.

Consequences of the adoption
Adoption terminates other prior family relationship of the child with the former relatives together with the rights and obligations arising from the family relationship (FLA Section 162). The court might, however, require retaining the relationship between the siblings. Estonian legislation stresses adoption secrecy to guarantee the protection of the private life of children, parents and adoptive parents, prevent undesired interference and discrimination on the basis of origin or on any other basis.

Sources

Legal Grounds
Finland is a member of the CRC, European Convention on Human Rights, and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (since 1997). Finland is a member of the European Convention on the Adoption of the Children (revised) since 2012.

The Adoption Act (22/2012, AA) entered into force in 2012. The Act states that the promotion of the child’s best interest is its first priority (section 2 AA). The purpose of adoption is to promote the child’s best interest by strengthening the child-parent relationship between the child and his/her adoptive parents and when evaluating it, attention is given to how to secure a permanent family and a balanced development and wellbeing for a child (AA sections 1 and 2) .

Adoption with consent
Adoption should generally be based on the consent given by the parents (with legal responsibility over the child) and by children who are 12 years or older (AA section 10). The view of a child who is younger can be taken into consideration as well. There are specific requirements for consent: it should be given in a written form with personal signatures, and it is given to the person who is licensed to give adoption counselling (AA sections 14 and 16). The person giving his/her consent should always receive information about the purpose of adoption and its legal consequences as part of the obligatory adoption counselling (Chapter 4 of the AA); if the person does not want to be involved in adoption counselling, that information about adoption has to be given in some other way. There has to be a ‘reconsideration period’ for birth parents (and a child) to be convinced about their consent (if the baby is to be placed for  adoption at birth at the request of the parent/s, the baby is placed in out-of-home care during the parents’ ‘reconsideration period’). Consent can be withdrawn before the court’s decision (section 17 AA).

Adoptions without consent
Only in exceptional situations can adoption be decided without consent or based on objection to parental competence (AA section 11). In those situations, the child’s best interest should strongly support adoption. In addition, from the point of view of the nature and quality of the contact and relationship between the child and the parent(s), the reasons for parental withdrawal or lack of consent should be adjudged to be unfounded.

Procedure in the court
The adoption procedure in Finland does not differentiate between the adoptions with and without parental consent. Adoption process starts with adoption counselling.

It is a duty given to the municipalities, and it is a prerequisite for adoption. Adoption counselling is given by social workers to parents giving up their child, the child and the future adoptive parents (Chapter 4 of the AA). The tasks are defined in Adoption Act section 24.

First, the Adoption Board grants the adoption permission provided that the adoption counselling has been followed through and the adopters’ have made such an application. The adoption is then decided by the generalist district courts (AA section 51) by judicial decision. The procedure is initiated by the application of adoptive parents.

The court has a duty to gather information to guide its decision-making if the application and related reports are not sufficient (AA section 53), including hearing persons who can provide relevant information.

The parents of the child, the child’s custodian and guardian have an opportunity to be heard. This is usually done in the written form as it is not obligatory to organize a hearing. The court may meet with the child, parents and guardians face-to-face, to provide them with the opportunity to be heard. A hearing is not necessary if the opinion of the person to be heard has already earlier been reliably ascertained or if hearing him or her is otherwise to be deemed unnecessary for the resolution of the matter (AA section 54).

Adoption decisions
The adoption decision results in a written judgment of approx. 1-2 pages, and with the decision parental rights are transferred to adoption parents. Decisions can be appealed without restrictions to appeal court (AA section 56), and thereafter on specific procedural grounds to supreme court.

By a general rule court decisions are public in Finland. However, decisions which are seen as including sensitive personal information are to be kept secret. Adoption decisions are such, so they are not available for the public without a permit. The permit is given by the courts to those who have a solid reason to have access to the decisions (e.g. research). The children, birth parents, adoptive parents and relevant bodies (e.g. social welfare agency) are informed about the adoption decisions, and the child and his/her parents have a right to access the case files of the court. According to Adoption Act (93 §), they should be offered necessary support and guidance when reading the case files. Their right to access the case files can also be denied if there is a reason to think that the information would harm their health or development (93 §). The prospective adopter, the child and a person to be heard under section 54(1) of the Adoption Act have the right of appeal.

Matters concerning the granting of adoption have to be considered expeditiously at all instances.

Consequences of the adoption
Once an adoption has been granted, the adoptee is regarded to be the child of the adoptive parents and not of the former parents (AA section 18). Adoption also ends the maintenance obligations of the biological parents.

Sources

Legal Grounds
Germany is a member of the CRC, European Convention on Human Rights, and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (since 2001). Germany is a member of the European Convention on the Adoption of the Children (revised) since 2015.

The German Civil Code (CC) states in section 1741(1) that ‘Adoption is admissible if it serves the best interests of the child and it is to be expected that a parent-child relationship will arise between the adoptive parent and the child.

Adoption with consent
In principle, adoption is only admissible with consent of both parents and the child. For children from the age of 14 years on the consent has to be given by themselves; for children younger than 14 years the custodial parent(s) give the consent on behalf of the child (sec. 1746 CC). Parental consent can only be given when the child is at least eight weeks old.

Adoption without consent
An exception to the consented adoption is regulated in section 1748 of CC, which provides for the substitution of the consent of parents in adoption proceedings. Only the child can apply for the substitution of the consent, but the application is usually filed by a guardian who has been appointed after the withdrawal of parental custodial rights from the parents. The family court must substitute parental consent to adoption in cases of:

  1. Gross violation of parental duties, where it would be disproportionately disadvantageous to the child if the adoption did not take place;
  2. Parental indifference to the child, where it would be disproportionately disadvantageous to the child if the adoption did not take place;
  3. Permanent incapacity for caring for and bringing up the child as the result of a particularly serious psychological illness, or a particularly serious mental or psychological handicap, where the child could not grow up in a family and the child’s development would, as a result, be seriously endangered if the adoption did not take place.

Adoption against the wishes of the parents is deemed the most serious intervention in parental and family rights in Germany, where the constitution affords special protection to marriage and family in general, and the parents’ right to the care and upbringing of children in particular (Art. 6 Constitution). Due to the proportionality principle the least intrusive measure has to be taken which prioritizes voluntary family support, for example as foster care placement, which parents are legally entitled to (sec. 27 ff. Social Code (SC) VIII).

Where the separation of a child from the parents due to an endangerment of the child’s best interests (s. 1666 CC) is likely to be permanent, the child and youth welfare service has an obligation to work towards a permanent family life solution for the child, which includes consideration of adoption (s. 36(1)2, s. 37 (1) SC VIII). The Federal Constitutional Court has ruled that adoption by foster parents with whom a child is already placed can be a sensible option (BVerfG, 24, 119);  however, this is also one of the most common scenarios for the withholding of parental consent to adoption. In practice, parental consent is rarely substituted by the family courts,  as it has to remain the option of last resort.

Despite the legal possibilities of substituting parental consent, the practice is rarely used by the family courts. Out of 3,888 adoptions in 2017, only 277 substitutions were made, and almost half of these concerned stepparent adoptions. 139 cases concerned children in foster care, in public child institutions or hospitals (at birth). One explanation for the courts’ reluctance to substitute parental consent is the constitutional protection of parental rights and the Federal Constitutional Court’s frequent reminders that adoptions against the parents’ wishes should remain the exception where the child would suffer a disproportionate disadvantage if the adoption did not take place. The purpose of this approach is to safeguard proportionality of the child protection measures taken, meaning that if less invasive measures suffice to prevent the endangerment of the child’s best interests, these must  take precedence. Substitution of parental consent thus has to remain the option of last resort.

Procedure in the court
Prerequisite for adoption is the suspension of parental rights by the court. The adoption application is usually filed by a guardian who has been appointed after the withdrawal of parental custody from the parents. If only one parent’s consent is to be substituted the other parent may represent the child if s/he has sole custody for the child.

An adoption without parental consent requires separate proceedings for the substitution of parental consent under s.1748 CC. This involves a full hearing of the parties concerned, i.e. the child, the biological parents, the person whose consent is to be substituted, and the adoptive parents (s. 188 FamFG). The court can order the personal appearance of all the parties concerned, where this is deemed necessary, but is free to hear the parties separately where this is necessary for the protection of a party or for other reasons (s. 33 FamFG). The court has to hear the child and the adoptive parents in person (s. 192 FamFG), while it is sufficient for the youth welfare office to submit a written statement/report. Where the child is too young or a personal hearing would be detrimental to the child, the court is exempted from a personal hearing. If a decision to substitute parental consent is made by the court, adoption proceedings follow and the adoption is finalized.

Adoption proceedings are dealt with by the family court (ss. 186-199 Family Proceedings Act (FPA)) on the basis of the application of the adoptive parents. The court is required to protect the anonymity of the applicant adopters (s. 1758 CC), investigate and examine all relevant facts ex officio (s. 26 FPA), and it must hear submissions from the adoption agency (FPA s. 189) and the child (FPA s, 192). The agency involved is required to submit a report that includes an assessment as to whether child and adopters are appropriately matched (FPA s. 189). The personal hearing of the child may only be omitted where there is fear of a detriment to her development, education, or health, or if based upon his young age no information can be expected from such hearing. From the age of 14 years, children can apply and represent themselves in family court proceedings.

The parents are also participants in the proceedings and are to be heard, meaning that if their consent is in doubt they have to be heard (s. 193 FPA). In addition, the youth welfare office has to provide a professional opinion, is present and is heard in the court hearing (s. 194 FPA). The essential results of the hearing are documented, usually per dictation by the judge during the hearing. In case of a conflict of interest between the child and the custodial parent or legal guardian, a guardian ad litem is appointed (s. 191 FPA). The hearing takes place in a closed session and other persons are not allowed to attend. The court’s decision results in the permanent termination of parental rights and the adoption being completed.

Adoption decisions
Under German law, an adoption application can only be granted or rejected. The written judgement is served to the participants, the youth welfare office and the guardian ad litem. The case file and judgement are preserved in court for at least 30 years. The reasoning of the written judgement fulfils the right to justice by explaining to the participants why the court has made its decision as it did.

The judgment concerning the substitution of parental consent has to be explicitly explained and justified in the reasoning. The facts and circumstances the decision is based on are described. References are made to the legal base that applies in the case. In case of conflict the reasoning of the decision is substantial. If the adoption only has to be approved because all participants give consent and agree that it is in the child’s best interest references to the professional opinion by the youth welfare offices suffice.

The participants, the youth welfare office and the guardian ad litem have a right to complaint on appeal to the higher regional court as second instance court. The latter conducts a full taking of evidence and hears the participants again. A further appeal to the Supreme Court is admissible if the higher regional court has given leave to appeal. The proceedings at the Supreme Court are written procedures.

Judgements are only publicly available if the court has released it in an anonymized version for publication. This is a discretionary decision by the individual judge. In contrast, judgements by the Supreme Court are always published. Adoption and its circumstances may not be revealed without the approval of the adoptive parent and of the child, unless special reasons of the public interest make this necessary (s. 1758 CC).

Family court proceedings are often times free of costs but the judge can impose the costs of the proceedings at its discretion upon the participants in whole or in part (s. 81 FPA). Costs are not imposed, or only in deferred payment, if the participants are provided means-tested legal aid.

Consequences of adoption
The order granted has the traditional permanent and exclusive effects: essentially legally terminating the relationship between child and birth parents and transforming the relationship between adopter and child to that of parent and child. Thus, adoption grants the child the legal position of the child of the adoptive parent (s. 1754 CC); it also terminates the legal relationship and all the parental rights between the child and the biological parents (s. 1755 CC), except in cases of kinship adoption (s. 1756 CC). The child receives as its birth name the family name of the adoptive parent (s. 1757 CC).

Sources

  • Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG), (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit vom 17. Dezember 2008 (BGBl. I S. 2586, 2587), das zuletzt durch Artikel 7 des Gesetzes vom 20. Juli 2017 (BGBl. I S. 2780) geändert worden ist), available in English: http://www.gesetze-im-internet.de/englisch_famfg/
  • Basic Law of the Federal Republic of Germany (“Grundgesetz für die Bundesrepublik Deutschland in der im Bundesgesetzblatt Teil III, Gliederungsnummer 100-1, veröffentlichten bereinigten Fassung, das zuletzt durch Artikel 1 des Gesetzes vom 13. Juli 2017 (BGBl. I S. 2347) geändert worden ist“), available in English: https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html
  • BVerfG, 24, 119
  • Civil Code (CC) (Bürgerliches Gesetzbuch in der Fassung der Bekanntmachung vom 2. Januar 2002 (BGBl. I S. 42, 2909; 2003 I S. 738), das zuletzt durch Artikel 6 des Gesetzes vom 12. Juli 2018 (BGBl. I S. 1151) geändert worden ist), available in English: https://www.gesetze-im-internet.de/englisch_bgb/
  • Freedom of Information Act (Gesetz zur Regelung des Zugangs zu Informationen des Bundes), 5 September 2005 (Federal Law Gazette [BGBl.] Part I, p. 2722), available in English: www.gesetze-im-internet.de/englisch_ifg/englisch_ifg.html
  • Halloran, Adoption Law and Human Rights, 8. Germany, Routledge 2018
  • Social Code – Book VIII (SGB) (Das Achte Buch Sozialgesetzbuch – Kinder und Jugendhilfe – in der Fassung der Bekanntmachung vom 11. September 2012 (BGBl. I S. 2022), das zuletzt durch Artikel 10 Absatz 10 des Gesetzes vom 30. Oktober 2017 (BGBl. I S. 3618) geändert worden ist), available in German: http://www.gesetze-im-internet.de/sgb_8/
  • E.E., Wapler, F. and Frey, W., Die Ersetzung der Einwilligung in die Adoption: Rechtslage und Reformbedarf. Eine Expertise für das Expertise- und Forschungszentrum Adoption (EFZA), Deutsches Jugendinstitut (9. June 2017)

Background
Ireland has a long and complicated history associated with adoptions, a history that is underpinned by an enmeshed and complicated Church-State relationship. Adoption services were historically provided by the Catholic Church and the civil society sector, whereby the principle of subsidiarity guided the provision of social services. The Irish State, historically, embraced an obsequious and subservient role to the Church in the family and social policy matters, the consequences of which are still being addressed today, particularly in the fields of child welfare and adoption. In a period where Ireland has become one of the most socially progressive countries in the world, it is easy to forget how strong the social stigma of having a child outside of ‘wedlock’ and being an ‘unmarried mother’ used to be. Pregnant women were harshly treated in a society which provided few options: either travel abroad for an abortion, emigrate with your child or place your child up for adoption which meant living with your child in a mother and baby home for a minimum of a year. Women who lived in mother and baby homes were socially isolated and worked under oppressive conditions for their ‘penance’ in ‘quasi-penal’ conditions. An added risk for living in a mother and baby home was that there were high infant mortality rates.

When adoption was first introduced, it was limited to children who were orphaned and ‘illegitimate’ children. Women’s rights groups have questioned the de facto adoptions prior to the 1952 act and have ‘disputed the voluntary nature of the consent given to these arrangements in particular cases, even after 1952 and have demanded the investigation of “forced adoptions”’.

Prior to Status of Children Act in 1987, children born outside of marriage in Ireland were classified as ‘illegitimate’. During that period, there were no social protection measures for single parents or pregnant mothers to rely upon, and social stigma meant that so-called “unmarried mothers” were made to feel unwelcome in their home and community. Ireland being a devout Catholic and socially conservative country, placed strong social, economic and religious pressures on women to place their children for adoption. The majority of adoptions in Irish history were ‘infant stranger adoptions’. The Adoption Board (1953 to 2010) had the sole right to grant or refuse adoption orders, with over 40,000 adoptions approved since 1952.

There was no legal adoption in Ireland until the early 1950s. It was only with the enactment of the 1952 Adoption Act that legal adoption was first introduced in Ireland (Department of Children and Youth Affairs, 2014, p. 15) including the creation of the adoption societies register.

Legal Grounds
Ireland is a member to the CRC, European Convention on Human Rights, and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (since 2010). Ireland is not a member of the European Convention on the Adoption of the Children (revised).

The 2012 Constitutional Amendment and the Children and Family Relationship Act 2015 shifted the focus to a more child-centric model where the best interests of the child and the proportionality principles are paramount.

All children in the State are now to be treated equally, irrespective of their parents’ marital status. Significantly, this Constitutional Amendment and enabling legislation such as the Adoption (Amendment) Act 2017, now allow for the adoption of children of married parents, married parents for the first time can voluntarily place their child for adoption, children in long-term foster care can be placed for adoption after 36 months and children should, where practicable, be facilitated to express their views in adoption proceedings giving ‘…due weight having regard to the age and maturity of the child’ (s. 19) (McCaughren and McGregor, 2018; Palmer and O’Brien, 2018). Further related reforms of adoption in Ireland under the 2017 include extending “…eligibility to prospective adoptive parents in diverse family structures, including those based on marriage, civil partnership, cohabitation and single parents” (Palmer and O’Brien, 2018, p. 6)

Adoption without consent
Tusla, the Child and Family Agency, a single-dedicated State agency responsible for the welfare of children, is since 2014, the largest provider of adoption services in Ireland. The Adoption Authority of Ireland established in 2010 is an independent regulatory administrative body that is the competent authority for all adoption matters in Ireland, including making adoption orders. The independent Authority has seven members and is unrelated to the Courts Service.

If a parent(s) does not consent to an adoption, is unavailable to consent or does not respond to the Adoption Authority, the Child and Family Agency can apply to the High Court for an order to approve an adoption order. Once 28 days has elapsed after the High Court order, the Adoption Authority of Ireland are then entitled to make the adoption order. The adoptive parents are provided with a letter which confirms that the adoption order has been made, the child’s old birth certificate is no longer valid, and a new entry is made in the Adopted Children Register in the General Register Office.

Adoptions proceedings
Applicants must have a valid Form A1 which is the ‘Declaration of Eligibility and Suitability’ before they apply to the Adoption Authority for an adoption order. Obtaining a valid A1 form involves an intensive assessment of suitability by an accredited body, usually a social work service. Adoption order hearings are very short and take place in the Adoption Authority’s building in Dublin, but can also take place around the country in offices and hotels. Children and adoptive parents must be present for the adoption order hearing and children are asked if they consent to the adoption order being made. There is no specific age-limit for requiring the consent of the child, the child has a right to be heard from seven years of age.

Adoption decisions
Of the children that are adopted in Ireland, there is no information publicly about the circumstances of these specific cases. Adoption files are comprehensive, but as sensitive documents, they are not open to researchers or other bone fide parties. The Adoption Authority of Ireland does not publish adoption order decisions and there are no written judgements placed on the adoption file. The file contains a record to state that an adoption order has been made and includes a seal.

Consequences of adoption
An adoption order is permanent and a legally binding document: “the parent(s) lose(s) all legal rights over the child and are freed from all duties. These rights and duties are transferred to the adoptive parents. The child is regarded in law as the child of the adoptive parents as if he or she were born to them in marriage”.

Sources

Legal Grounds
Norway is a member to the CRC, European Convention on Human Rights, and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (since 1997). Norway is a member of the European Convention on the Adoption of the Children (revised) since 2011.

In Norway, the Adoption Act of 2017 (AA) states in section 1 that the “The purpose of the act is that adopted children should be given a safe upbringing by establishing permanent legal ties that correspond to the relationship between children and parents.” The overriding consideration for undertaking an adoption is the child´s best interest. The persons that wish to adopt must have the necessary abilities to raise and care for a child and present a full police record. The Ministry of Children and Family has the authority to specify additional criteria for a person applying to become an adoptive parent, for example age limits, health conditions, economic situation, etc. Adoption is only possible with the known adoptive parents.

Adoption with parental  consent
A voluntary adoption must be based on a valid consent from the birth parents that have parental responsibilities. Adoption also requires the consent of the child when s/he is 12 years and older (section 9 AA). The former means that only parents with the legal parental responsibility must give consent, and that father or mother who has no parental responsibility will only be notified and given the opportunity to express their opinion before an adoption decision is made (cf. section 10 AA). The assessment of applicants is done and the decision-making body is the Office for Children, Youth and Family Affairs (Bufetat), situated in five regions in Norway. This administrative body is a direct subordinate of the directorate and the ministry.

Adoption without consent
The criteria for adoption against the parent’s will is outlined in the Norwegian Child Welfare Act of 1992, section 4–20. There are four conditions: (1) there must be a likelihood that the parents will permanently be unable to care for the child properly, or that it would be detrimental to the child to be moved because of attachments formed with foster parents and the environment where the child resides; (2) adoption must be in the child’s best interests; (3) the foster parents must have proved capable of bringing up the child; and (4) the conditions for granting adoption in accordance with the Adoption Act of 2017 must be in place.

The child protection act, section 4-20a, allows for so-called open adoptions so that there is an agreement that birth parents and the child can have some contact after the adoption. About 0.4 per 10,000 children are adopted through the child protection system each year, and this amounts to about 50 children a year.

Adoption proceedings
All involuntary decisions about adoptions are made by the County Social Welfare Board (County Board). Contrary to formal courts of general jurisdiction and the generalist model applied in Norway, the County Board addresses only a narrow type of cases—primarily coercive child welfare issues and cases—and is therefore considered a specialist court model.

The County Board is purely a decision-making body; thus, the necessary professional case preparation is undertaken by the child welfare agency. The County Board may nonetheless appoint an independent expert to assess the case or certain aspects of it if deemed necessary. The general rule is that the County Board is composed of the County Board chair—who is a legal scholar—an expert member and a lay member.

The typical proceeding would be a hearing of two-three days, in which private parties with lawyers and public parties with lawyers, present their arguments. A child must be heard when it has reached 7 years of age, and also younger children should be heard if they are able to form her/his own views. The decision-making body has an obligation to provide information about the content and consequences of adoption to the parents and the child. There will be witness testimonies from both parties, and the board members may ask questions. After the hearing, the board members will deliberate and make a decision.

The decision-makers are equal in their influence and decision-making authority. All members must ‘vote’, and each case is decided by a majority decision (Quality Assurance Manual, 2010). It is underscored that it is of fundamental importance for the County Board judge to convey this respect for diverting viewpoints to board members, and their right and duty “to vote in accordance with their convictions” is underlined. The County Board operates as a court, and its procedural rules are largely based on the Dispute Act (2005), which also guides court procedures. The County Board is independent of the Government, and a decision made by the board may only be appealed and reviewed by the courts; it should be therefore considered an independent court-like administrative body (Skivenes & Søvig, 2017).

Adoption decisions
The chair will write the adoption decision in a form of a written judgment, that is confirmed and signed by the other members. The decision is usually about 10-15 pages long, and it’s required by law (tvistemålsloven) that all relevant arguments for the decision are mentioned in the judgments. The judgements are written to justify the decision, and consist of four parts. Parents, the child protection agency, and the child if she/he is 15 years or older, receive the judgement. About 6-10% of all child protection decisions are deidentified and made publicly available. For the period of 2011-2016, a total of 36 adoption judgements are publicly available.

A decision can be appealed to the distric court, and all aspects of the case will be heard in full by the court. Thereafter, the the distric court decision, can be appealed on specific grounds, for example on procedurel grounds, to appeal court and to supreme court.

Consequences of adoption
Adoption terminates parental rights and both of these decisions are made in the adoption order.  In the case of an ‘open adoption’ biological parents can retain contact with the child in the conditions set forth in the adoption order.

Sources

Legal Grounds
Spain is a member of the CRC, European Convention on Human Rights, and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (since 1995). Spain is a member of the European Convention on the Adoption of the Children (revised) since 2011.

In Spain, adoption is a family law act that is not directly connected to child protection. It is a legal term established in the Civil Code, arts 175 to 180. These articles have been updated several times; the last one with the modification to the Law for Childhood and Adolescence Protection System, Law 26/2015.

Adoption with consent of the parents
Adoptions generally require the consent of the biological parents with parental rights.

Adoptions without the consent of the parents
The law enlists cases where parents are unable to consent to an adoption (art. 177). In addition, child protection services may consider a child abandoned where:

  • The parents fail to recognize the problem;
  • The negative influence on the minor is denied;
  • Support measures are rejected;
  • The child’s needs are not met; and
  • There is an endangerment situation for the child.

Adoption proceedings
Adoption orders are made by judicial decision and require consideration of the best interests of the child and the suitability of the prospective adopters for the exercise of parental authority. The public entities of the autonomous regions responsible for the protection of minors handle the adoption process and take the adoption request to Court. As an example, in the autonomous region of Madrid, the “Comisión de Tutela del Menor”, a seven-member collegiate body, is the child custody commission responsible for child protection measures.

The process that goes from child removal to an effective adoption, especially in cases of involuntary removal and care order, can take a long time. So frequently, the public entity, prior to the presentation of the proposal for adoption to the court, may delegate the custody “for the purpose of adoption” to childcare centre or foster family, until the judicial decision of adoption is issued (art. 176). This is done by means of a duly motivated administrative decision, after hearing the affected parties and the minor if (s)he has enough maturity and, in any case, if (s)he is older than twelve years.

Adoption proceedings not initiated by parents typically start with the removal of parental rights by the Child Protection Services. This action is notified to the parents and the public prosecutor for minors. The CPS meets individually with each perty in the case, and the CPS thereafter present the written material and the case for the Commission (consisting of 7 persons).

Once the removal of parental rights is effective, the public entity grants a term of two years, during which parents can appeal the decision, provided that adoption has not yet been granted. Appeals would need to be made to the court; in practice, if the parents have not appealed within two years, the adoption process would be completed.

After the decision by the Commission, but in no more than 3 months, the CPS sends the complete child protection services file next to a three pages proposal for adoption to the family court. In deciding whether to allow the adoption proposal or not, the family court judge will carry out his own expert appraisal of the evidence. Prospective adopters have to obtain a prior declaration of suitability by applying to the relevant public entity. It is this public entity that decides whether to make a recommendation in their favour and to initiate adoption proceedings with the court.

Court makes the adoption Decision in the form of a written court order. The court will issue it based on hearing all the parties separately (adopting parents and child over 12 years old and sometimes younger children depending on their maturity). The children are heard in a safe and private environment. Though the Civil Code says that it is not mandatory to hear the biological parents that have lost their parental rights, in practice, the judges usually call them and hear them. The judge can commission all expert evidences she/he considers necessary. The court will issue a court order ratifying the initial CPS proposal for adoption or dismissing it. If the proposal is dismissed there will be no adoption and the child will remain in foster family or into a Child Care Center.

Adoption decisions
There will be a complete file of the case including the final adoption decision from the court, stored at the Child Protection Area and the Court. Biological parents and the public prosecutor for minors receive notification of the decision to remove all parental rights for the purpose of adoption of the child. The termination of parental rights is done by an order of the CPS.

Apart from this, the decisions are not publicly available. Before 2015, it was very difficult to research these decisions and  have some form of public accountability. This was due to the need to protect the names of the children. The Law 26/2015 and Organic Law 8/2015 on the modification of the child protection system has emphasized the importance of evaluation of these decisions for attaining public accountability.

Consequences of adoption
Adoption terminates legal relationship between the child and biological parents and creates a legal bond between the child and the adoptive family. It is possible to retain some contact between the biological family and the child if the interests of the child so require. These requirements have to be set forth in the judgment, but they can be later terminated based on the wishes of the parties concerned (art 178 CC). The adoption is irrevocable.

Sources