Lord Justice McFarlane: ‘The difficulties facing adopters and adopted children have been made more difficult with the ever-increasing facility to trace and make contact via social media.’ Photograph: Alamy Stock Photo
Too many children are being forcibly adopted against the wishes of their families and prevented from having any contact with their natural parents, a senior judge has suggested.
In the era of social media and with children being removed from problem homes at ever older ages, Lord Justice McFarlane argued, it may no longer be practicable or beneficial to create an “impermeable seal” around an adoptive home.
His comments, although posed in the form of questions, are a challenge to current family justice policies and the dominant presumption, particularly since the Baby P scandal, that more children should be taken out of homes where they may be exposed to violence.
Entitled “Holding the risk: the balance between child protection and the right to family life”, McFarlane’s lecture on Thursday to the family justice council warned that more research was needed to justify the courts’ “highly intrusive, draconian orders” for permanent removal.
Social work practice, spurred on by initiatives from the Tony Blair and coalition governments, “has led to the age at which children may be considered as candidates for adoption regularly encompassing youngsters of the ages of five, six, seven years or older,” the judge explained. Around 20% of adoptions involve children over the age of four.
The older children are removed, he said, the more likely they are to carry the mental scars of their traumatic family life.
“The difficulties facing adopters and adopted children in this regard have been made significantly more difficult … with the ever-increasing facility to trace and make contact, in an uncontrolled way, with individuals over the internet or via social media,” he added.
This has led to “erosion in the hitherto impermeable seal around the adoptive placement, created by social media”. These changes are, McFarlane said, “sufficient to raise the question of whether our model of adoption continues to be as valuable to each of the individuals concerned as we have hitherto held that it is”.
Britain’s relatively high forcible adoption rate is, the judge noted, “rare across the world”.
He continued: “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 about the success of placements, he said. “The stability and security provided by adoption is said to provide a quality of care which far outstrips any other model that might be available.”
But a future which may include placement breakdown, unstructured and possibly unknown contact with the natural family, upset and confusion, “seems a long cry from the sunny upland of a happy, settled, secure future with a ‘forever family’ which has been the traditional goal of those making adoption orders to date”.
Other problems confronting magistrates and judges in the family courts include care funding restrictions. “In a neglect case,” he said, “where permanent removal is a borderline decision, the question of what resources can be introduced into the home to support the parents may be determinative of the outcome.”
Greater efforts should have been made to promote family drugs and alcohol courts, which offer a way of “breaking the cycle of vulnerability, addiction, confrontation with authority and failure, which is so often the hallmark of families who come back and back before the family courts because, without intervention, they are placing their children at risk.”
The practice of allowing contacts in abusive relationships during private law proceedings – where they have been stopped in child protection proceedings – should also be reviewed, McFarlane suggested.
Better transparency in the family courts would help the public understand the nature of the dilemmas faced by magistrates and judges, he said. “The vacuum created by the lack of sound and accurate information about the system provides a space into which ill-informed, and at times deliberately incorrect, commentary and advice can be introduced.”
Sometimes, he said, such ignorance even encourages “some parents to disengage entirely from the process, refuse to be assessed by independent experts, dispense with the expert lawyers freely provided by the state and, in some extreme cases, flee with their children to Ireland, France or further afield.”
McFarlane, who sat for many years in the family division of the high court, is on the court of appeal. His lecture was in memory of Bridget Lindley of the Family Rights Group who died last year.[“Source-theguardian”]