The politics of adoption: International perspectives on law, policy & practice

The Politics of Adoption: International Perspectives on Law, Policy & Practice

Volumn , Issue , 2006, Pages 1-334

  O'Halloran, Kerry ^a  

^a QUEENSLAND UNIVERSITY OF TECHNOLOGY   (Australia)

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EID: 84891381673     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1007/1-4020-4154-3     Document Type: Book

References (454)

1. See, Gibbons, The Decline and Fall of the Roman Empire, Harrap, London 1949 at p. 30.
2. See, Gilligan, R., Irish Child Care Services: Policy, Practice and Provision, Institute of Public Administration, Dublin, 1991.
3. See, Gibbons, The Decline and Fall of the Roman Empire, op cit.
4. See, Bird, C., The Stolen Children; Their Stories, Random House, Australia, 1998.
5. See, Bridge, C. and Swindells, H., Adoption-The Modern Law, Family Law, Bristol, 2003 at p. 314.
6. See, Hubinette, T., 'Adopted Koreans and the Development of Identity in the 'Third Space', in Adoption & Fostering, London, BAAF, vol. 28, no. 1, 2004, pp. 16-24 where the author refers to the resulting Korean adoption diaspora.
7. See, Hubinette, T., 'Adopted Koreans and the Development of Identity in the 'Third Space', in Adoption & Fostering, London, BAAF, vol. 28, no. 1, 2004, p. 19.
8. See, for example, Dyer, A., The Internationalisation of Family Law, 30 UC Davis Law Review 625, (1997).
9. See, further, Triseliotis, J., 'Intercountry adoption: global trade or global gift?', Adoption & Fostering, London, BAAF, vol, 24, no. 2, pp. 45-54, 2000.
10. Feigelman, W. and Silverman, A. Chosen Children: New Patterns of Adoptive Relationships, New York, Praeger (1983)
11. and Saetersdal, B. 'What became of the Vietnamese "baby life children"?, Melbourne, paper in conference proceedings on Permanence for Children, (1989). However, this must be set against the evidence from adoptees transnational groups that adulthood often brings difficulties with cultural identity.
12. See, Silberman, L., 'The Hague Children's Conventions: The Internationalization of Child Law' in Katz, S., Eekelaar, J. and Maclean, M. (eds.) Cross Currents: Family Law and Policy in the United States and England, Oxford, Oxford University Press, 2000, at p. 607;
13. citing D'Amato, A., Cross-Country Adoption: A Call to Action, 73 Notre Dame Law Review 1239
14. and Bartholet, E., International Adoption: Propriety, Prospect and Pragmatics, 13 J Am Acad Matrim L 181 (1996).
15. See, Triseliotis, J., Shireman, J. and Hundleby, M., Adoption Theory, Policy and Practice, Cassell, London, 1997 at p. 181.
16. See, http://www.hcch.net/e/status/adoshte.html.
17. see, for example, Hoksbergen. R, Juffer, F. and Waardenburg, B., Adopted Children at Home and at School, Lisse, Sweets and Zeitlinger, (1987).
18. See, Cretney, S., Masson, J. and Bailey-Harris, R., Principles of Family Law, London, Thomson Sweet & Maxwell, 2003 at p. 832.
19. Citing, Selman, P., 'The demographic history of intercountry adoption' in Selman, P., (ed.) Intercountry Adoption (2000).
20. Citing, Second Report to the UN Committee on the Rights of the Child by the UK, (1999), para 7.23.8.
21. Statistics cited in Triseliotis, J., Shireman, J. and Hundleby, M., Adoption Theory, Policy and Practice, Cassell, London, 1997 at p. 183.
22. See, Re H; Re G (Adoption: Consultation of Unmarried Fathers) [2001] 1 FLR 646.
23. See, for example, Flintshire County Council v K [2001] 2 FLR 476, the 'internet twins' case.
24. See, for example, Re M (Adoption: International Adoption Trade) [2003] EWHC 219 (Fam)
25. -[2003] 1 FLR 1111 which concerned a white British couple who had adopted a baby from a black American couple after paying approximately £17, 500 to an American adoption agency. The home study reports, prepared by a British social worker, were criticised by the court as "deeply flawed and inadequate documents" and it also referred to "the evil and exploitive trade" of buying and selling babies.
26. See, Tomlin Committee report (Cmnd 2401) 1925.
27. See, Houghton Committee, Report of the Departmental Committee on the Adoption of Children, (Cmnd 5107), London, HMSO, 1972.
28. See, for example, Lowe, N., 'The Changing Face of Adoption-The Gift/Donation Model versus the Contract/Services Model', Child and Family Law Quarterly, 371, 1997.
29. See, for example, Bowlby, J., Attachment, Penguin, London, 1969.
30. See, Duncan, W., 'Children's Rights, Cultural Diversity and Private International Law', in Douglas, G. and Sebba, L. (eds), Children's Rights and Traditional Values, Aldershot, Ashgate, 1998 at p. 32.
31. See, for example, Benet, M. K., The Character of Adoption, Johnathan Cape, London, 1976.
32. see Goody, E., Contexts of Kinship, Cambridge University Press, London, 1973.
33. See, The Decline and Fall of the Roman Empire, Harrap, London 1949 at p. 131.
34. See, Gilligan, R., Irish Child Care Services: Policy, Practice and Provision, Institute of Public Administration, Dublin, 1991.
35. See, Middleton, N., When Family Failed, Victor Gollancz, London, 1971.
36. See, Bean and Melville, Lost Children of the Empire, Unwin Hyman, London, 1989.
37. See, for example, Tizard, B., Adoption: A Second Chance, Open Books, London, 1977.
38. See, Cretney, S., 'Adoption-Contract to Status?' in Law, Law Reform and the Family, Clarendon Press, Oxford, 1998, at p. 186.
39. See, Transactions of the National Association for the Promotion of Social Sciences (1874)
40. quoted by Pinchbeck, I. and Hewitt, M. in Children in English Society (1973), p. 359.
41. Also, see, Fox Harding Perspectives in Child Care Policy, Longman (1997) at p. 35 where he suggests that there was considerable opposition to laws restricting child labour and introducing compulsory education because these were seen as constituting an unwarranted state interference with parental authority.
42. See Re Thomasset [1894] 300.
43. See, Ex parte Skinner, 9 Moo 278;
44. Simpson on Infants, 2nd ed (1908), p. 115.
45. -23 Ch D 317, pp. 71-2.
46. See, De Mannerville v De Mannerville, op cit.
47. See, Gardner v Bygrave [1889] 6 TLR 23 DC
48. Mansell v Griffin [1908] 1 KB, 160
49. obiter, R v Hopley [1860] 2F and F 160.
50. See, Lough v Ward [1954] 2 All ER 338; this remained the case until abolished by s 5 of the Law Reform (Miscl Prov) Act 1970.
51. See, for example, R v Hale [1974] 1 All ER 1107 it was alleged that the accused had "unlawfully secreted... a girl aged 13 years, against the life of her parents and lawful guardians"
52. See, St John v St John (1805) 11 Vessey 530
53. and Vansittart v Vansittart (1858) 2 De Gex & Jones 249 at p. 256;
54. Hamilton v Hector (1872) LR
55. Equity 511.
56. See, In re O'Hara [1900] 2 IR 232
57. per Holmes LJ at p. 253;
58. 34 ILTR 17 CA.
59. Also, see, Humphrys v Polak [1901] 2 KB 385
60. CA and Brooks v Brooks [1923] 1 KB 257.
61. See, Van v Van, p. 259, per Turner L J.
62. See, Commentaries on the Laws of England, Oxford, Clarendon Press, 1765.
63. -[1900] 2 IR 233 at p. 244.
64. See, Lowe, N., 'English Adoption Law: Past, Present and Future' in Katz, S., Eekelaar, J. and Maclean, M., Cross Currents: Family Law and Policy in the United States and England, Oxford, Oxford University Press, 2000.
65. See, Bean, P. and Melville, J., Lost Children of the Empire, London, Unwin Hyman, 1989.
66. See, The Report of the Committee on Child Adoption (Cmnd 1254), 1921.
67. See, Lowe, N., 'English Adoption Law: Past, Present and Future' in Katz, S., Eekelaar, J., and McLean, M. (eds.), Cross Currents, Oxford University Press, 2000 at pp. 308-310.
68. See, McWhinnie, A., Adopted Children: How They Grew Up, Routledge&Keagan Paul, London, 1967.
69. See, See, Lowe, N., 'English Adoption Law: Past, Present and Future' op cit at p. 311.
70. See, Report of the Child Adoption Committee 1924-1925, (Cmnd 2401).
71. See, Report of the Departmental Committee on the Adoption of Children, Cmnd 9248, London, HMSO, 1954.
72. See, See, Lowe, N., 'English Adoption Law: Past, Present and Future' op cit at p. 322.
73. See, Report of the Departmental Committee on the Adoption of Children, op cit, para 24.
74. See, Report of the Departmental Committee on the Adoption of Children, London, HMSO, 1972, Cmnd 5107, paras 33 and 34 and recommendation 2.
75. See, Report of the Departmental Committee on Adoption Societies and Agencies, London, HMSO, 1937, Cmnd 5499, p. 4.
76. See, Report of the Departmental Committee on the Adoption of Children, op cit, para 17.
77. See, Bridge, C. and Swindells, H., Adoption-The Modern Law, Family Law, Bristol, 2003 at p. 12.
78. See, for example, Z County Council v R [2001] 1 FLR 365 where Holman J upheld the right of a relinquishing birth mother to insist that her siblings were neither informed of her decision nor approached to assess whether they would be in a position to undertake care responsibility.
79. -[1991] FCR 1052.
80. -18 EHRR 342.
81. -[2001] EWCA Civ 347
82. -[2001] 2 FLR 26.
83. -[2001] 1 FLR 302.
84. -[2001] 1 FLR 646.
85. -[2001] UKHL 70
86. -[2002] 1 FLR 196.
87. See, Re B [1971] 1 QB 437
88. per Davies L J at p. 443.
89. See, Re D (No. 2) [1959] 1 QB 229.
90. See, for example, CD Petitioners [1963] SLT (Sh Crt) 7.
91. See, for example, In re A (An Infant) [1963] 1 WLR 34.
92. Also, see, In re H (A Minor: Non-Patrial) [1982] Fam Law 121 where an adoption order was granted in respect of an immigrant child despite contrary advice from the Secretary of State.
93. See, for example, In re D (Minors) [1973] Fam 209.
94. As documented by Bean and Melville in Lost Children of the Empire, Unwin Hyman, 1989.
95. See, Rowe, J. and Lambert, L., Children Who Wait, London (1973).
96. See, In Re D (A Minor) (Adoption Order: Validity) [1991] 2 FLR 66.
97. See, Re D (An Infant) (Adoption: Parent's Consent) [1977] AC 602 at p. 638.
98. See, for example, the leading Northern Ireland case of In re E. B. and Others (Minors) [1985] 5 NIJB 1 where, as eloquently explained by Hutton LJ: "If the only test was the welfare of the child and the wishes of the natural parents could be disregarded, then there would be some cases where a child, taken into care for a short time because of the illness of his parents or some other family emergency, could be taken away permanently from humble and poor parents of low intelligence, and perhaps with a criminal record, and placed with adoptive parents in much better economic circumstances who could provide the child with greater material care and intellectual stimulation, a more stable background and a brighter future"
99. -[1970] AC 668.
100. See, specifically, Re W (An Infant) [1971] 2 All ER 49 where Hailsham LJ emphasised that: "The test is reasonableness and nothing else. It is not culpability. It is not indifference. It is not failure to discharge parental duties. It is reasonableness and reasonableness in the totality of the circumstances".
101. -[1949] CH 320.
102. See, Eekelaar, J., 'What are Parental Rights?' [1975] 89 LQR 210
103. and Hall, 'The Waning of Parental Rights' [1972] CLJ 248.
104. See, Re C (A Minor) [1988] 1 AER 712h.
105. See, the Houghton Committee, Report of the Departmental Committee on the Adoption of Children (Cmnd 5107), 1972
106. which followed on from the report of the Departmental Committee on the Adoption of Children Working Paper (HMSO), 1970.
107. See, for example, Triseliotis, J., Open Adoption: The Philosophy and the Practice, 1970.
108. See, for example, Gunn-Russo v. Nugent Care Society and Secretary of State for Health [2001] EWHC Admin 566
109. -[2002] 1 FLR 1
110. -[2001] UKHRR 1320
111. -[2002] Fam Law 92, QBD.
112. See, Grotevant, H. and McRoy, R., Openness in Adoption, Sage Publications, USA, 1998, at p. 196.
113. See, Brodzinsky, D. and Schechter, M., The Psychology of Adoption, Oxford University Press, USA, 1990 at p. 318.
114. See, Re MW (Adoption: Surrogacy) [1995] 2 FLR 789 where the court dismissed a surrogate mother's opposition to an adoption application by commissioning parents in respect of a child who by then had been in the applicants care for two-and-a-half years.
115. See, for example, the account of 20 years of such experience in Dalen, M. & Saetersdal, B., 'Transracial Adoption in Norway', Adoption & Fostering, Vol 2, no. 4. 1987.
116. Also Ngabonziza, D., 'Inter-country adoption in whose best interests' Adoption & Fostering, Vol 2, no. 1, 1988.
117. See, Murphy, J., 'Child Welfare in Transracial Adoptions: Colour-blind Children and Colourblind Law' in Murphy, J. (ed) Ethnic Minorities-Their Families and the Law, Hart Publishing, Oxford, 2000.
118. See, Department of Health, LAC 20, 1998.
119. See, Fitzpatrick v Sterling Housing Association Ltd [2001] 11 FLR 271 where the House of Lords ruled that a settled homosexual relationship did constitute a 'family' for the purposes of the law relating to landlord and tenant.
120. See, for example, Re E (Adoption: Freeing Order) [1995] 1 FLR 382 where the Court of Appeal, albeit reluctantly, approved the placement of a girl with a single lesbian adopter.
121. See, Golombok, S., 'Lesbian Mother Families' in Bainham, A., Day Sclater, S. and Richards, M. (eds.) What is a Parent? Hart Publishing, Oxford, 2000.
122. -[1997] Fam Law 8 and 225.
123. -[1997] 2 FLR 406.
124. See, also, Re E (Adoption: Freeing Order) [1995] 1 FLR 382.
125. See, the Department of Health, The Victoria Climbie Inquiry ('the Laming Report'), the Stationary Office, London, 2003.
126. See, for example, Goldstein, J., Freud, A, and Solnit, A. J. Beyond the Best Interests of the Child, 1973 which promoted the 'psychological parenting' concept and where the point (contributing significantly to the rationale for permanency planning) is made that "Continuity of relationships, surroundings, and environmental influences are essential for a child's normal development" (pp. 31-32).
127. See, for example, Bowlby, J. Attachment and Loss, London, Hogarth Press, 1969
128. and Howe, D. et al., Attachment Theory: Social, Developmental and Clinical Perspectives, New Jersey, Analytical Press, 1999.
129. Also, see, Harris, G., 'The Human Life Cycle: Infancy' in Davies, M. (ed.) The Blackwell Companion to Social Work (2nd ed.), Oxford, Blackwell (2003) at pp. 342-347 where Harris states that 'in extended families, infants might form an attachment to family members other than the main care provider' (p. 343). It is now accepted that an infant child is equally capable of forming an attachment to a male or female carer.
130. See, for example, Waterhouse, Lost in Care: Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974 (The Stationery Office, London, 2000).
131. The 'outcomes research', analysing and evaluating the care careers of looked after children, is comprised of many different reports compiled in the main from within the social work and allied professions. These include: Triseliotis, J. and Hill, M. Hard to Place-the Outcome of Adoption and Residential Care, Gower (1984);
132. Thoburn, J. Captive Clients (1980);
133. Milllham, S. et al., Lost in Care (1986);
134. Rowe, J., Hundleby, M., and Garnett, L. Child Care Now-A Survey of Placement Patterns (1989);
135. Farmer, E. and Parker, R. Trials and Tribulations (1991);
136. Parker, R., Ward, H., and Jackson, S. et al. (eds.) Looking After Children: Assessing Outcomes in Child Care, London, HMSO (1991);
137. Bullock, R., et al., Going Home (1993);
138. Dept. of Health, Caring for Children Away from Home: Messages from Research (1998);
139. Adoption as a Placement Choice: Argument and Evidence, The Maudsley (1999);
140. and Broad, R. et al., Kith and Kin: Kinship Care for Vulnerable Young People (2001).
141. Houghton Committee in Report of the Departmental Committee on the Adoption of Children (Cmnd 5107), 1972 at para 38.
142. See, Re J (A Minor) (Adoption Order: Conditions) [1973] Fam 106, per Rees J where it was first held that continued contact was not inconsistent with adoption.
143. Also, see, the decision of the House of Lords in Re C (A Minor) (Adoption Order: Conditions) [1989] AC 1, HL where it was re-affirmed that there was a power to attach a condition where this was in the welfare interests of the child concerned.
144. See, Re C (A Minor) [1988] 1 AER 712h where both factors arose for consideration. However, also
145. see, Re S (Contact: Application by Sibling) [1998] 2 FLR where the court refused an adopted nine year old child leave to apply for a contact order enabling her to resume her relationship with a seven year old half brother with special needs who had been adopted into a different family. The application was resisted by the boy's adoptive parents on the grounds that it would disrupt his life. The court held that the making of an adoption order was intended to be permanent and final and issues such as contact should not be considered after that event; except in the most unusual circumstances.
146. See, British Association of Social Workers, Analysis of the Children Bill, 1975, which states: "It would be an intolerable situation if financial resources were made available to subsidise adoption when an allocation of similar resources to the natural parents may have prevented the break up of the family in the first place" at p. 22.
147. Cited by Lowe, N., 'English Adoption Law: Past, Present and Future' op cit, at p. 330. In support of this approach it has to be noted that child care adoption is virtually non-existent in Denmark where the state heavily investsinthefamily supportservices necessarytokeep vulnerable children at home.
148. See, also, Bridge, C. and Swindells, H., Adoption: the Modern Law, Family Law, Bristol, 2003 where it is stated: "By 1951, baby adoptions comprised 52% of all adoptions. By 1968 this proportion was even greater-amounting to 76% of all adoptions- and in the same year, 91% of all adoptions were of illegitimate children. Adoption of illegitimate babies had become the primary focus of adoption law" at p. 6.
149. See, Re B (Minor) (Adoption: Parental Agreement) [1990] 2 FLR 383.
150. See, also, Re G (TJ) (An Infant) [1963] 1 All ER 20 CA;
151. Re D (Minors) (Adoption by Step-Parent) [1980] 2 FLR 103
152. and; Re B (A Minor) (Adoption) [1988] 18 Fam Law 172.
153. See, Interdepartmental Group, DoH, Review of Adoption Law, para 3, (1992).
154. -[1998] 2 FLR.
155. See, also, Re D (Adoption Reports: Confidentiality) [1995] 2 FLR 687.
156. See, Bridge, C. and Swindells, H., Adoption-The Modern Law, Family Law, Bristol, 2003 at p. 217 where it is noted that under the 1976 Act more than 50% of adoptions in England & Wales were step-parent adoptions.
157. See, Re B (Adoption: Natural Parent) [2002] 1 FLR 196 HL where the House of Lords endorsed an adoption order made by the High Court in favour of an unmarried father as sole applicant.
158. See, Masson, J., Norbury, D., and Chatterton, S., Mine, Yours or Ours? HMSO, 1983 where it is noted that in 1951 a third of all adoptions involving 'legitimate' children and just under one-half of those who were 'illegitimate' were step-parent adoptions.
159. See, Lowe, N., 'English Adoption Law: Past, Present, and Future' in Katz, S., Eekelaar, J. and Maclean, M., Cross Currents: Family Law and Policy in the United States and England, Oxford, Oxford University Press, 2000 at p. 317.
160. where as authority for this definition he cites Masson, J., Norbury, D. and Chatterton, S. Mine, Yours or Ours? HMSO, London, 1983 at p. 9.
161. See, the Departmental Committee on the Adoption of Children, Working Paper, HMSO, London, 1970, paras 92-94.
162. Also, see, Report of the Departmental Committee on the Adoption of Children (Cmnd 5107), 1972.
163. The Adoption Process at p. 9.
164. See, Re D (An Infant) [1959] 1 QB 229
165. -[1958] 3 All ER 716.
166. See, FvS [1973] Fam 203 at 207
167. -[1973] 1 All ER 722 at 725 CA.
168. Also, see, Re B (Adoption: Natural Parent) [2002] 1 FLR 196 HL above at f/n 31.
169. -[1999] 1 FLR 250.
170. See, Re G (Adoption Order) [1999] 1 FLR 400.
171. See, In re DX (An Infant) [1949] 1 Ch 320 at p. 321.
172. see, for example, Broad, B. (ed.) Kinship Care: The Placement Choice for Children and Young People, Russell House, 2001
173. Greef, R. (ed) Fostering Kinship: An International Perspective on Kinship Foster Care, Arena, 1999
174. and Hegar, R. L. and Scannapieco, M., Kinship Foster Care: Policy, Practice and Research, Oxford University Press, 1999.
175. See, Report of the Departmental Committee on the Adoption of Children, London, HMSO, 1972, Cmnd 5107, paras 84-90 and recommendation 13.
176. See, Lowe, N., 'English Adoption Law: Past, Present and Future', op cit, at pp. 321-322, where he cites the 'Looked After' statistics for England as showing the following child care adoptions: 2, 400 in 1997;2, 500 in 1998; and 2, 900 in 1999. The Dept of Health annual statistics reveal that in England during the year ending 31 March 2002, a total of 3, 400 looked after children were adopted.
177. Despite recommendations in the Curtis Report, The Care of Children, (Cmnd 6922) 1946
178. where adoption was advocated for older children in care and subsequently those of the Houghton Committee, Report of the Departmental Committee on the Adoption of Children, (Cmnd 5107) 1972 which pressed for adoption to be made available to children in public care where this was in the best interests of a particular child.
179. See, Lowe, N., 'English Adoption Law: Past, Present and Future' in Katz, S., Eekelaar, J., and Maclean, M., Cross Currents: Family Law and Policy in the United States and England, Oxford, Oxford University Press, 2000 at p. 315.
180. see, Report of the Departmental Committee on the Adoption of Children, London, HMSO, 1972, Cmnd 5107, paras 173-186.
181. -[2002] 2 FLR 730.
182. Also, see, P, C and S v UK (2002) 35 EHRR 31
183. K and T v Finland [2001] 2 FLR 707
184. and Johansen v Norway (1996) 23 EHRR 33;
185. -[2001] 1 FLR 611 at para 31.
186. See, the Department of Education and Skills, Draft Regulations and Guidance for Consultation (Care Planning, Special Guardianship), London, 2004 at p. 20.
187. See, Maluccio, A. and Fein, E., 'Permanency Planning: a redefinition', Child Welfare 62:3, pp. 195-201, (1983).
188. -[2001] 2 FCR 89.
189. -[2003] EWHC 3448 (Fam).
190. Note, also, R (L and Others) v Manchester City Council; R (R and Another) v Manchester City Council [2001] EWHC Admin 707
191. -[2002] 1 FLR 43 where the court ruled that the local authority practice of paying less to kinship carers than to foster carers was unlawful.
192. See, also, the government's Green Paper, Every Child Matters, published in September 2003.
193. See, Lowe, N., 'English Adoption Law: Past, Present and Future', op cit, at p. 333.
194. See, for example: Re P (A Minor) (Adoption) [1990] 1 FLR 96;
195. R v Lancashire County Council, ex parte M [1992] 1 FLR 109;
196. and Re JK (Adoption: Transracial Placement) [1991] 2 FLR 340. Also, see, Caesar et al., 1993 and Tizard and Phoenix, 1989.
197. -[1990] 1 FLR 58 at p. 63.
198. Also, see, Re O (Transracial Adoption: Contact) [1995] 2 FLR 597.
199. See, Adoption: The Future, (Cmnd 2288) HMSO, 1993, para 4.32.
200. See, Re An Adoption Application [1992] 1 FLR 341
201. Re AW (Adoption Application) [1992] Fam Law 539
202. and Re C (A Minor) (Adoption Application) [1992] Fam Law 538.
203. see, for example, Re WM (Adoption: Non-Patrial) [1997] 1 FLR 132.
204. -[1999] 1 FLR 370.
205. -[1997] 2 FLR 230.
206. See, also, Re N [1990] 1 FLR 58 where the adoption application by white foster parents in respect of a four year old Nigerian child, placed with them when 3 weeks old, was successfully challenged by the child's father who lived in the US. The court, attaching considerable weight to the father's assertion that adoption was unknown to Nigerian law and carried resonances of slavery, warded the child giving care and control to the foster parents.
207. -[1996] 2 FLR 441.
208. See, also, ReB (Adoption: Child's Welfare) [1995] 1 FLR 895 which concerned an adoption application arising from the informal foster care arrangement made for a Gambian child. In refusing the application, Wall J placed considerable importance upon the child's cultural inheritance as an integral aspect of its welfare.
209. See, further, http://www.unicef.org/crc
210. and respectively.
211. see, .
212. See, Waterhouse, Lost in Care: Report of the Tribunal of Inquiry into the Abuse of Children in Care in the Former County Council Areas of Gwynedd and Clwyd since 1974, the Stationery Office, London, 2000.
213. See, e.g. The United Kingdom's First Report to the UN Committee on the Rights of the Child (HMSO, 1994). The second report was published in September 1999.
214. See Glaser v United Kingdom [2001] 1 FLR 153 where the court recognised that the complexities arising from the case being transferred between jurisdictions required additional reports to ensure that the eventual decision affecting the welfare interests of the child was based on a thorough investigation.
215. and Hokakanen v Finland [1944] 19 EHRR 139
216. -[1996] 1 FLR 289, where, in both cases, the delay was attributable to the party awarded custody refusing to comply with the terms of contact orders.
217. See Bock v Germany [1990] 12 EHRR 247, where the court held that there had been a breach of Article 6 by the delay resulting from domestic courts seeking an unnecessary number of reports.
218. See H v United Kingdom [1988] 10 EHRR 95, where the court noted that the irreversibility of adoption proceedings was a factor in the adopters' failure to apply promptly.
219. Also, see, Mikulic v Croatia, Application No 53176/99, ECHR, 07.02.02 where the court ruled that, given what was at stake for the applicant, the four year delay before hearing did not satisfy the obligation to act with particular diligence to progress the proceedings.
220. See, also, Paulsen-Medalen and Svenson v Sweden (1998) 26 EHRR 260.
221. -2 EHRR 305.
222. 35 EHRR 31;
223. -[2002] 2 FLR 631.
224. -[2002] 2 FCR 673.
225. See P, C and S v United Kingdom, op cit.
226. -[2002] EWHC 1379
227. -[2002] 2 FLR 730.
228. -[2001] 2 FLR 1300.
229. See O v United Kingdom, B v United Kingdom, H v United Kingdom, R v United Kingdom and W v United Kingdom (1987) 10 EHRR 29.
230. See, for example, Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300
231. and C v Bury Metropolitan Borough Council [2002] 2 FLR 868.
232. See Airey v Ireland (1979)
233. Series A No 32, 2 EHRR 305.
234. See, Olson v Sweden (No 1) (1988) 11 EHRR 299 where it is explained that to be justifiable such interference must be "relevant and sufficient; it must meet a pressing social need; and it must be proportionate to the need".
235. (Application No. 6753/74) (1975-76) 1-3 DR 118.
236. 12 EHRR 36.
237. -[2002] EWHC 1593
238. (Admin), [2002] 2 FLR 962.
239. Keegan v Ireland: Application No. 16969/90 (1994) Series A No. 290, 18 EHRR 342, at para. 44.
240. Marckx v Belgium (1979) Series A No 31, 2 EHRR 330, at para. 31.
241. -[2001] 1 FCR 653.
242. -[1997] 2 FLR 892.
243. See Johansen v Norway (1996) 23 EHRR 33
244. and Rieme v Sweden (1993) 16 EHRR 155.
245. Note that in B. v United Kingdom [2000] 1 FLR 1 the court found against an unmarried father without parental responsibility and held that the UK court had been justifiably discriminatory between his standing and that of a married father as he had no custody rights in respect of the child.
246. -[1999] 1 FLR 250.
247. Fam Law 478.
248. See also B v United Kingdom [2000] 1 FLR 1.
249. -[2000] 2 FLR 486.
250. But see also Sahin v Germany; Sommerfeld v Germany; Hoffman v Germany, [2002] 1 FLR 119.
251. -[2000] 2 FCR 614 at 625.
252. See also, Kutzner v Germany [2003] 1 FCR 249, where the court emphasised that any interference with this right will entail a violation of Article 8 unless the three requirements are satisfied. The element of " necessity" implies that the interference must correspond to a pressing social need and in particular be proportionate to the legitimate aim being pursued. An applicant local authority, in such circumstances, must inquire as to what additional measures of support can be given as an alternative to the extreme measure of separating a child from his or her parents.
253. -[2001] EWCA Civ 757
254. -[2001] 2 FLR 582.
255. 1 FCR 201.
256. 1 FCR 249.
257. See, also, Re B (A Child: Non-accidental Injury) unreported, Court of Appeal, April 24, 2002, where it was held that the judge at first instance had erred in refusing to order disclosure of documents to a sibling of B, the subject of proceedings. The disclosure, if made, would have had a direct bearing on the outcome of the proceedings.
258. -[2001] 2 FLR 549.
259. Also, see, Re M (Care: challenging decision by local authority) [2002] FLR 1300.
260. ECHR, 13.02. 2003.
261. 5 EHRR 223.
262. See also Kroon v The Netherlands (1994) Series A No. 297-C, 19 EHRR 263 where the court commented that it was a principle of good law to hold that the interests of the child were paramount.
263. -[2002] 1 FLR 119; at time of publication the subject of appeal to the Grand Chamber.
264. See, also, Scott v UK [2000] 1 FLR 958 where the ECHR upheld the decision of the court at first instance to dispense with the consent of an alcoholic mother and free her child for adoption because there was no evidence that she would ever be alcohol free and "what is in the best interests of the child is always of crucial importance".
265. -[1988] 2 FLR 445.
266. -[2000] 2 FLR 79.
267. -[2003] 1 FLR 210.
268. See, e.g. Re O (A Child) (Supervision Order) [2001] 1 FLR 923.
269. Re H (Contact Order) [2002] 1 FLR 22 at 37.
270. See also comments of Hale LJ in Re C & B (Care Order: Future Harm) [2001] 1 FLR 611, at paras. 33-34 and 620-621 and in
271. Re O. (Supervision Order) [2001] 1 FLR 923 at paras. 24-28.
272. See, also, the similar case of Venema v The Netherlands Application No 35137/1977, ECHR, 17.12. 2002.
273. 36 EHRR 255.
274. 23 EHRR 33.
275. -[2003] 1 FCR 201.
276. See Re W and B; Re W (Care Plan) [2001] EWCA Civ 757, as reported in
277. Family Law 581.
278. See Fortin, J., 'Children's Rights and the Impact of Two International Conventions: the UNCR and the ECHR' in Delight and Dole: the Children Act 10 Years On (eds. Thorpe, L. J. and Cowton, C., Family Law, Bristol, 2002).
279. Application No. 6482/147 (1975) 7 DR 75.
280. Inze v Austria (1988) Series A No. 126, 10 EHRR 394.
281. See also Marckx v Belgium (1979) Series A No. 31, 2 EHRR 330.
282. -[2002] EWCA Civ 1138
283. -[2002] 1 WLR 1537.
284. Citing Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711 at para 56.
285. -[2001] 1 FLR 43.
286. See, Duncan, W. 'Regulating Intercountry Adoption-an International Perspective', in Bainham, A., Pearl, D. S. and Pickford, R. (eds) Frontiers of Family Law (2nd ed), John Wiley and Sons, 1995 at p. 51.
287. See, Sargent, S., 'Adoption and Looked After Children: a comparison of legal initiatives in the UK and the USA', Adoption & Fostering, BAAF, vol. 27, no. 2, 2003, at pp. 44-52.
288. The Nature and Effect of Adoption (1990)
289. Agreement and Freeing, The Adoption Process, and Intercountry Adoption; and three background papers: International Perspectives (1990)
290. Review of Research Relating to Adoption (1990)
291. followed by Intercountry Adoption (1991-1992).
292. See, the Department of Health, Adoption Law Review: Consultation Document, 1992.
293. See, Adoption-A Service for Children, HMSO, 1996. Also, note the current consultation process in relation to the Children Bill particularly the Green Paper Every Child Matters, 2003 and Every Child Matters: Next Steps published by the Dept. of Skills and Education, 2004.
294. See, in particular, the Waterhouse Inquiry, Lost in Care: Report of the Tribunal of Inquiry into the Abuse of Children in Care in the former County Council Areas of Gwynedd and Clwyd since 1974, The Stationery Office, London, 2000.
295. See, Review of Adoption Law, op cit, at para 4.2.
296. Local Authority Circular (20) 1998.
297. See, the Department of Health, For Children's Sake: An SSI Inspection of Local Authority Adoption Services, 1996
298. and For Children's Sake-Part II: An SSI Inspection of Local Authority Adoption Services, 1997.
299. See, the Department of Health, Adoption Now: Messages from Research, 1999.
300. See, the Department of Health, The Government's Objectives for Children's Social Services, 1999, at para 1.3.
301. See, Department of Health, Consultation Report by the Performance and Innovation Unit, Adoption: Prime Minister's Review, Cabinet Office, London, 2000.
302. See, for example, Re B (Adoption Order) [2001] EWCA Civ 347
303. -[2001] 2 FLR 26.
304. See, for example Re D (An Infant) (Adoption: Parent's Consent) [1995] 1 FLR 895 where Wall J remarked that it is "... logical that a different test needs to be applied to the making of an order which extinguishes parental rights as opposed to one which regulates their operation" at p 898.
305. A view endorsed by the DoH in its Review of Adoption Law 1992 at para 7.1.
306. Note also Re W (An Infant) [1971] AC 682 where Hailsham LJ remarked that " welfare per se is not the test" endorsed by MacDermott LJ in the same case "... the mere fact that an adoption order will be for the welfare of the child does not itself necessarily show that a parent's refusal to consent to that adoption is unreasonable" at p 706. More recently, however, perhaps in response to decisions of the ECHR, the judiciary in this jurisdiction have been demonstrating an increasing willingness to recognise that the paramountcy principle has a bearing on consent issues.
307. See, Department of Health, Adopter Preparation and Assessment and the Operation of Adoption Panels: A Fundamental Review, 2002.
308. See, however, Re Adoption Application (Adoption: Payment) [1987] 2 FLR 291 where it was recognised that such a contract was in itself valid.
309. See, for example, W v Essex County Council [2000] 1 FCR 568
310. and A and Another v Essex County Council [2002] EWHC 2707 (QB).
311. See, Department of Health, Review of Adoption Law, 1992 at para 27.2 for criticism of the injustice of this practice in relation to natural parents.
312. Also, see Gorgulu v Germany, Application No 74969/01, ECHR, 26.02.2004 and further at Chap. 2.
313. See, Performance and Innovation Unit, Prime Minister's Review of Adoption, London, Cabinet Office, 2000 at Annex 4. 9
314. See, Performance and Innovation Unit, Prime Minister's Review of Adoption, op cit, where it is stated that "at least 70% of adopted children have some form of contact with members of their birth families" (para 3.141).
315. See, for example, Re D (Minors) (Adoption by Step-parent) (1981) 2 FLR 102.
316. See, Re D (A Minor) (Adoption order: validity) [1991] 2 FLR 66.
317. See, Re B [1996] 1 FLR 667 where an appeal by a local authority, supported by the guardian ad litem, argued that the judge at first instance had erred in law in not acting on the unanimous opinions of the experts, all of whom urged that the child be placed for adoption. The court dismissed the appeal
318. citing with approval the comment of Lord President Cooper in Davie v Magistrates of Edinburgh 1953 SC 34, 40 that "the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert"
319. per Ward LJ at pp. 669-670.
320. See, further, Chapter 4, sections 66-76, Status of Adopted Children, the Adoption and Children Act 2002.
321. Following the 2002 Act, the Dept of Health issued a consultation paper entitled The Draft Adoption Support Services (Local Authorities) (Transitory and Transitional Provisions) (England) Regulations and Draft Accompanying Guidance, December 2002.
322. See, also, Dept of Health, Providing Effective Adoption Support.
323. See, for example, Kelly, F., Early Irish Law, Dublin Institute of Administration Studies (1988).
324. See, Gilligan, R., Irish Child Care Services: Policy Practice and Provision, Institute of Public Administration, Dublin (1991).
325. See, Kelly, F., Early Irish Law, op cit.
326. See, Robbins, J., The Lost Children: A Study of Charity Children in Ireland 1700-1900 (1980).
327. Also, Eekelaar, J., Family Law and Social Policy (1984) and Gilligan, R., (1991).
328. See, further, Foster Care-A Child Centred Partnership, Stationery Office, Dublin, 2001
329. and Gilligan R, 'Children Adrift in Care-Can the Child Care Act rescue the 50% who are in care five years or more', Irish Social Worker, Vol. 14, No. 1.
330. Note that in W. O'R v E. H. [1996] 2 IR 248 the Supreme Court held that any order allowing the non-marital father (or any other person) access is deemed to have lapsed upon the making of the adoption order. For a broad definition
331. see Triseliotis, J., 'Open Adoption' in Mullender, A. (ed.) Open Adoption: The Philosophy and the Practice, British Agencies for Adoption and Fostering, London, 1991 at pp. 17-35.
332. -[2003] 1 ILRM 481.
333. Also, see, J. B. and D. B. v. An Bord Uchtála, (1998).
334. Milotte, M., Banished Babies, New Island Books, Dublin, 1997.
335. See, Report of An Bord Uchtála, Stationery Office, Dublin, 2000, at para 3.1.
336. See, Re JH (An Infant): KC and AC v An Bord Uchtála [1985] IR 375
337. and Duncan, W., The Constitutional Protection of Parental Rights in Parenthood in Modern Society, Eekelaar, J. M., and Sarcevic, P., (eds), (Dordrecht, 1993
338. and reproduced in the Report of the Constitutional Review Group, Dublin, Stationery Office, 1996, pp. 612-626.
339. See, for example, The State (Nicolaou v An Bord Uchtála [1966] IR 567;
340. G v An Bord Uchtala [1980] IR 32;
341. and WO'R v EH (Guardianship) [1996] 2 IR 248.
342. See, however, Northern Area Health Board and WH and PH v An Bord Uchtála (December 17, 2002) where McGuinness J held that a failure of parental duty and abandonment of rights while not being the same concepts in law are and will be related in the facts of any particular case.
343. Following the ruling in MFvAn Bord Uchtála [1991] ILRM 399.
344. Following the ruling in Keegan v Ireland, Application No 16969/90 (1994) Series A No 290 (1994) 18 EHRR 342.
345. Note, also, J. B. vD. B. (1998) where the consent of the father in respect of a child conceived as a result of rape was obtained which would seem to indicate that consent of the father in such circumstances should be obtained where possible. I am grateful to Shannon, G., for drawing this case to my attention.
346. See, Minister for Children, Mr Lenihan, B., TD, in foreword to Shannon, G., Adoption Legislation Consultation: Discussion Paper, Dublin, June 2003.
347. But, see Walsh J., in Binchy, W., Casebook on Irish Family Law, Professional Books, Dublin, 1984, at p. viii for a critical analysis of the Board's authority to make adoption orders without judicial endorsement.
348. See, further, Towards a Standardised Framework for Intercountry Adoption Assessment Procedures: A Study of Assessment Procedures in Intercountry Adoption, Stationery Office, Dublin, 1999.
349. See, for example, The Southern Health Board v An Bord Uchtála [2000] 1 IR 165 where the court was satisfied that while the father had actually
350. See, NAHB v An Bord Uchtála [2003] 1 ILRM 481.
351. See, for example, The Southern Health Board v An Bord Uchtála, op cit
352. and also The Western Board, HB and MB v An Bord Uchtála [1995] 3 IR 178.
353. See, however, NAHB vAn Bord Uchtála, op cit, where the clear informed wish of the 12 year old child to be adopted was taken into account by the court when granting the order.
354. See, for example, RC & PC v An Bord Uchtála & St Louse's Adoption Society (8th February, 1985), unreported, HC.
355. The constitutional validity of s 12 (2) of the 1952 Act was successfully challenged in J McG & W McG v An Bord Uchtála & AG (1974) 109 ILTR 62 (High Court) which led directly to the introduction of the 1974 Act.
356. See, Eekelar, What are Parental Rights'? [1973] 89 LQR 210;
357. Hall The Waning of Parental Rights [1972] CLJ 248;
358. and Bevan and Parry Children Act 1975 pp. 208-239.
359. -[1998] 2 IR 321.
360. See, Law Commission, Adoption and its Alternatives-A Different Approach and a New Framework, Wellington, New Zealand, 2000. This report draws attention to the particularly high rate of intercountry adoption (116 per million in 1998 compared with 26 per million in Sweden and 117 per million in Norway) at p. 119.
361. See, Report of the Review Committee on Adoption Services, Adoption, Dublin, Government Publications, 1984 at p. 10.
362. See, The Independent Review, 5th January, 2005
363. as cited by Hilpern K. in her feature article 'The Daddy of All Game Shows' at p. 3.
364. 405 US 645 (1972) at footnote 9 where in reference to "custody or adoption proceedings" it is stated that: "Extending opportunity for hearing to unwed fathers who desire and claim competence to care for their children creates no constitutional or procedural obstacle to foreclosing those unwed fathers who are not so inclined" (p. 657).
365. As cited by Katz, S. 'Dual Systems of Adoption in the United States', in Katz, S., Eekelaar, J. and Maclean, M. (eds.), Cross Currents: Family Law and Policy in the United States and England, Oxford University Press, Oxford, 2001, at p. 279. For further Supreme Court rulings positively affecting thelocus standiof unmarried fathers
366. see, Quilloin v Walcott, 434 US 246 (1978)
367. Caban v Mohammed, 441 US 380 (1979)
368. and Lehr v Robertson, 43 US 248 (1983).
369. see, further, Fanshel, D., and Shinn, E. B., Children in Foster Care 29 (1978) as cited by Katz, S.
370. 'Dual Systems of Adoption in the United States', op cit at p. 300.
371. See, Polier, 'Amendments to New York's Adoption Law: the Permanently Neglected Child' in 38 Child Welfare 2, 1959.
372. See, Pennypacker, 'Reaching Decisions to Initiate Court Action to Free Children in Care for Adoption', in 40 Child Welfare, 1961;
373. also Polier, Parental Rights, Child Welfare League of America, New York, 1958.
374. See, Bastard Nation: The Adoptee Rights Organisation, 'A History of Sealed Records in the US', The Basic Bastard, www.bastards.org (2003).
375. See, for example, Meyer v Nebraska 262 US 390 (1923)
376. Stanley v Illinois 405 US 645 (1972)
377. and Wisconsin v Yoder 406 US 205 (1972).
378. See, Curtis v Curtis 71 Mass (5 Gray) 535, 537 (1856) where the court ruled that "adoption is not a question of mere property... the interests of the minor is the principal thing to be considered".
379. Cited by Katz, S., 'Dual Systems of Adoption in the United States', op cit at p. 283.
380. 455 US 755 (1982).
381. See, Woodhouse, B., 'The Adoption and Safe Families Act: a Major Shift in Child Welfare Law and Policy' in Bainham, A. (ed.), The International Survey of Family Law, 2000 Edition, Family Law, Bristol 2000 at p. 380
382. citing in support Gelles, R., The Book of David: How Preserving Families Can Cost Children's Lives, New York, Basic Books, 1996.
383. See, US Department of Health and Human Services, Adoption 2002: A response to the Presidential Executive Memorandum on Adoption, Washington, DC, 1997.
384. See, Senator Rockefeller of West Virginia, 143 Cong. Rec. 12199.
385. See, Bastard Nation: The Adoptee Rights Organisation, "A History of Sealed Records in the US", The Basic Bastard, www.bastards.org (2003).
386. See, Katz, S., 'Dual Systems of Adoption in the United States', in Katz, S., Eekelaar, J. and Maclean, M. (eds.), Cross Currents: Family Law and Policy in the United States and England, Oxford University Press, Oxford, 2001.
387. See, Katz, S., 'Dual Systems of Adoption in the United States', op cit at p. 285. But also see (as cited by Katz) the positive findings of Somit, J., 'Independent Adoptions in California: Dual Representation Allowed' in 1 Adoption Law and Practice (eds., Hollinger, J. H., and Leski, D. W.), 1988, para 5.01-5.09.
388. See, National Committee to Prevent Child Abuse, Current Trends in Child Abuse Reporting and Fatalities: the Results of the 1995 Fifty-State Survey, Chicago, NCPCA, April 1996 at p. 3.
389. Cited by Besharov, D., The Future of Children: Protecting Children from Abuse and Neglect, 1996.
390. See, Selwyn, J. and Sturgess W., 'Achieving Permanency through Adoption: following in US footsteps', Adoption & Fostering, London, BAAF, vol. 26, no. 3, 2002 at p. 40.
391. citing National Adoption Information, 2001.
392. citing Children's Bureau, 2001.
393. citing Adoption and Foster Care Analysis and Reporting System, 1998-1999.
394. See, General Accounting Office, 1989 as cited by McFadden, E., 'Kinship Care in the United States, in Adoption & Fostering, BAAF, vol. 22, no. 3 p. 8 (1998).
395. See, Barth, R. P., Yoshikami, R., Goodfield, R. K. and Carson, M. L. 'Predicting Adoption Disruption' in Social Work, 1998, pp. 227-33 for evidence that post-adoption subsidies mitigate adoption disruption.
396. See, Department of Health and Human Services, Adoption 2002: The President's Initiative on Adoption and Foster Care; Guidelines for Public Policy and State Legislation Governing Permanence for Children (1999).
397. See, Mullender (ed.) Open Adoption (BAAF, 1991).
398. See, Stehno, S., 'The elusive continuum of child welfare services: implications for minority children and youth', Child Welfare 69, pp. 551-562 (1990).
399. Also, Tatara, T., Characteristics of Children in Substitute and Adoptive Care: A statistical summary of the VCIS national childwelfare database, Washington DC, American Public Welfare Association (1993).
400. 537 A 2d 1227 NJ (1988).
401. 852 P 2d 44 Haw (1993); though this was not a 'same-sex' case.
402. See, E. N. O. v L. M. M. 711 NE 2d 886 Mass. (1999) at p. 891.
403. See, AFCARS, annual report, 2004 at http://www.acf.hhs.gov/programs/cb/ dis/afcars/publications/dlinkafcars.htm.
404. Following the decision in ALMA Society Inc. v Mellon 601 F2d 1238 (2nd Cir)
405. cert denied, 100 S Ct 531 (1979);
406. as cited by Katz, S., 'Dual Systems of Adoption in the United States', op cit at p. 292. The Supreme Court then held that the adult adopted applicants did not have a right of access to identifying information. Adoptees now have an unconditional right of access to their records in
407. Alaska, Kansas, Oregon and Alabama. However, as Julia Feast (co-author of The Adoption Reunion Handbook) has commented: "Legislation lags far behind the UK with most states not allowing adopted adults the most basic information about themselves-in some cases, not even their original name. This can make it nearly impossible for adopted adults and birth relatives to find each other, unless they can afford private investigators. Even then it can be difficult"
408. As cited by Hilpern K. in her feature article 'The Daddy of All Game Shows' in The Independent Review, 5th January, 2005, at p. 2.
409. See, Woodhouse, B., 'The Adoption and Safe Families Act: a Major Shift in Child Welfare Law and Policy' at p. 383.
410. 42 USC Section 675 (E). See, further, Chapter 2.
411. 42 USC 671 Section 15.
412. See, Bastard Nation: The Adoptee Rights Organisation, 'Legalized Anonymous Infant Abandonment/Safe Haven Laws', The Basic Bastard, www.bastards.org (2003).
413. Intercountry Adoption Actof2000, codified at 42 U. S. C. sec. 14901 et seq. The Hague Convention is expected to be ratified by the US by the end of 2004.
414. See, for example, the Ohio case of Burr v Board of County Commissioners 491 NE2d (1986)
415. where the tort of 'wrongful adoption' first attracted judicial notice and Meracle v Children's Service Society (1986) where an agency was prosecuted for wilful negligence.
416. Also, see, Blair, D. M., 'Liability of Adoption Agencies and Attorneys for Misconduct in the Disclosure of Health-Related Information' in Hollinger, J. H., and Leski, D. W., (eds.), 2 Adoption Law and Practice (1998) at para 16.01-08.
417. See, Selwyn, J. and Sturgess W., 'Achieving Permanency through Adoption: following in US footsteps', Adoption & Fostering, London, BAAF, vol. 26, no. 3, 2002 at p. 75.
418. 943 F. Supp. 886, 893-94 (M. D. Tenn. 1996).
419. 164 Or. App. 543
420. P.2d 833, 834 (1999).
421. However, the Queensland Government in The Adoption Legislation Review: Public Consultation, (Dept. of Families, 2003) accepted that a majority of respondents indicated a preference for adoption orders to be made in future by the Children's Court.
422. See, Swain, S. and Howe, R., Single Mothers and Their Children, for an account of the degrading experience of unmarried mothers and the prevalence of 'baby farming' and infanticide in the period 1850-1975.
423. Also, see, Allen, J., Women, Crimes and Policing in New South Wales (Ph. D thesis), Macquarie University, Sydney, 1984
424. as cited by Marshall, A. and McDonald, M., in The Many-Sided Triangle, op cit at p. 22.
425. citing WA PD 1896, p. 335.
426. See, further, Boss, P., Adoption in Australia, National Children's Bureau, Melbourne, 1992 at p. 211
427. as cited by Marshall, A. and McDonald, M., in The Many-Sided Triangle, op cit at p. 25.
428. See, McCalman, J., Sex and Suffering: Women's Health and a Women's Hospital, Melbourne University Press, p. 9.
429. See, AMS v AIF; AIF v AMS (1999) 199 CLR 160 per Gaudron J at p. 189.
430. See, Marshall, A. and McDonald, M., The Many-Sided Triangle, Melbourne University Press, Victoria, 2001 at p. 24.
431. See, Marshall, A. and McDonald, M., The Many-Sided Triangle, op cit at p. 30.
432. See, New South Wales Child Welfare Department, Annual Report 1921-25: "rich and poor alike are vying with each other to open their hearts and homes to these derelict children", at p. 5 as
433. cited in Marshall, A. and McDonald, M., The Many-Sided Triangle, op cit at p. 30.
434. See, Turner, N., 'Adoption or Anti-Adoption? Time for a National Review of Australian Law', 2 JCULR 43 (1995) for an analysis of the relative conformity in adoption law across all jurisdictions in Australia in the 1960s.
435. See, Winkler, R. and Van Keppel, M., Relinquishing Mothers in Adoption, 1983.
436. See, Marshall, A. and McDonald, M., The Many-Sided Triangle, op cit at p. 106.
437. See, Turner, N., 'Adoption or Anti-Adoption? Time for a National Review of Australian Law', 2 JCULR 43 (1995) for evidence that applications from step-parents and relatives, during the 1970s and early 1980s, dominated adoption proceedings in Australia.
438. See, AFCARS at www.acf.dhhs.gov/programs/cb/dis/afcars.
439. See, Australian Institute of Health and Welfare, Child Welfare Series: Adoptions Australia 1994-95, No 14 (AGPS, Canberra) at p. 21.
440. See, report by the Post Adoption Resource Centre of New South Wales as cited in Marshall, A. and McDonald, M., The Many-Sided Triangle, op cit at p. 196.
441. FLC 92-807.
442. See, also, Re Evelyn (No. 2) (1998) FLC 92-187 where the High Court of Australia considered and dismissed the issue of appeal.
443. FLC 92-807 at 85 106.
444. see Re Patrick: An Application Concerning Contact (2002) FLC 93-096.
445. See, Turner, J., 'Adoption or Anti-Adoption? Time for a National Review of Australian Law', 2 JCULR 43, 1995 at p. 45.
446. Also, see, Barth, M., 'Risks and Benefits of Open Adoption', in The Future of Children, vol. 3, no. 1, 1993.
447. See, Law Reform Commission Report 81, Review of the Adoption of Children Act 1965 (NSW), (1997).
448. Queensland Government, Dept of Families, Public Consultation on the Review of the Adoption of Children Act 1964, 2003, at chapter 4.
449. See, Adoption in Australia, Report of the AIHW, 1998.
450. FLC 93-108. 096 at 88.297.
451. FLC 92-807 at 85 106.
452. -107 FLR 151. The relevant statutory provision being s 26 (3) of the Adoption of Children Act (NSW) 1965.
453. See, also, the Council of Social Welfare Ministers, National Minimum Principles in Adoption at para 6.1 (1995) which requires a maximum age difference between adopters and adopted of 40 years for a first child and 45 years for subsequent children.
454. See, further, Harper, P., 'Adoption Law Reform: In Search of Self-Identity-Access to Information, 6 Legal Service Bulletin 52 (1981).