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Lord Justice McFarlane questions use of adoption for older children

Call for ‘sound, wide-ranging research as to outcomes’

Lord Justice McFarlane has given a lecture to the Family Justice Council questioning whether too many children are being forcibly adopted against the wishes of their families. He raised, in particular, issues relating to the adoption of teenage children in the age of social media. He said that more research is needed to justify the courts' "highly intrusive, draconian orders" for permanent removal of children from their natural families.

In the conclusion to his speech, he said:

"Making an adoption order radically shifts the tectonic plates of an individual's legal identity (and those of others) for life. That is a very big thing to do in order to protect that individual from harm during their formative years. Is an order of that magnitude necessary? How do we know that it is indeed the best outcome for the young person whose future life is being decided by the court? And, if I am right that we can no longer be certain that it is, how is it possible to say that by making adoption orders, particularly in the middle to low range of abuse cases, we 24 are indeed getting the balance right between child protection and the right to family life."

Lord Justice McFarlane was giving the inaugural Bridget Lindley Annual Memorial Lecture to the Family Justice Council. His speech was entitled Holding the risk: the balance between child protection and the right to family life.

McFarlane LJ said:

"My general thesis that the current balance between child protection and human rights is largely sound is only tenable if adoption is, indeed, the most beneficial arrangement for the young people for whom it is chosen by the courts. My question, in short terms, is 'But is it?'. If adoption was once the best outcome for children in these cases, does that continue to be the case today?

"Magistrates and judges up and down the country on every day of the week are making these highly intrusive draconian orders removing children permanently from their natural families on the basis that to do so is better for the child and that 'nothing else will do'. But, I ask rhetorically, 'How do we know this is so?'

"Family judges receive almost no feedback upon the outcome of the decisions that they make."

He added:

"Without sound, wide-ranging research as to outcomes, and without detailed individual feedback as to the progress of particular cases, it is difficult, indeed logically it is impossible, for judges to have confidence that the current balance between child protection and human rights, which favours a massive erosion of the right to family life because it is "necessary" to do so to protect the child, is indeed justified."

Sir Andrew also addressed transparency in the family courts and commended the work of The Transparency Project. He said:

"Those of us in the system need to be proactive in shining a light on our work, both in general and, if necessary, in particular cases, so as to
generate a far greater understanding amongst the public of what lies behind the important decisions that are taken about children by the courts, as an arm of the State, in the public's name."

The speech also offered "a few short suggestions as topics for fine tuning of the system". These related to neglect and resources; post-adoption contact; benefits from focusing on parents; special guardianship orders; domestic abuse; and independent reviewing officers.

For the full text of the speech, click here. For coverage in The Guardian, click here.

13/3/17