New legislation could face challenges under Human Rights Act

New legislation which changes the criteria allowing courts to
have children adopted without their parents consent could face
multiple legal challenges, a barrister has warned today at a
conference, writes Simeon Brody from
Norwich.

Dr Caroline Ball told a conference in Norwich today that the
Adoption and Children Act 2002, expected to come into force in
December, could face challenges under the Human Rights Act.

The new legislation says a court can dispense with parental
consent if the welfare of the child requires it – a clause which
replaces a list of more specific criteria in the current
framework.

Ball, a retired reader in law at the University of East Anglia
(UEA), said the government should have adopted a more stringent
test which made it clear that the advantages to the child of
becoming part of a family must be significantly greater than any
other alternative option if the wishes of the parents are to be
ignored.

She said the welfare of the child was a very subjective test and
there was a risk of it descending into social engineering, with
some families perceived as more attractive than others.

But she warned that the European Court of Human Rights had been
very reluctant to separate children permanently from their birth
families unless there were cogent grounds.

She told the Norfolk Council and UEA conference: “It seems
inevitable to me that unless courts are rigorous in addressing the
relevant criteria in the welfare checklist when balancing the
article 8 rights to family life of parents with child, there are
bound to be many Human Rights Act 1998 challenges to decisions to
dispense with consent based on the welfare of the child
test.”