Human Rights and Adopted Children

Article 12 of the European Convention on Human Rights (“the ECHR”) upholds the right to start a family. The 1998 Human Rights Act enshrines this right in UK law. The right to start a family includes the right to adopt a child. The ECHR does not oblige governments to provide adoption facilities; it does require governments to ensure that any systems for adoption which operate do not interfere with this right.

Article 14 of the ECHR states that the other rights contained in it should be applied without discrimination on any basis including sex, race, birth or “other status”. In broad terms the ECHR protects both the right to adopt a child and to enjoy the other rights contained within it without discrimination - regardless of whether one is adopted or adopts.

Equality Laws and Adoption

Recent UK equality laws restricted the ability of organisations to discriminate in the provision of services. The laws have meant that some religious, charitable organisations which previously provided adoption services may be prevented from doing so because they did not provide adoption services on an equal basis to all members of society. For example, some Catholic adoption charities - which only provided adoption services to heterosexual, married couples - breached the new equality laws.

UK equality laws do give some leeway to religious organisations which discriminate in accordance with the doctrine of their religion. However, anti-discrimination laws will be more strictly applied to publicly-funded adoption services operating in the wider community than to a religious organisation which operates on a more private level.

Rights of an Adopted Child

The laws which apply to adopted children depend, to some extent, on when they were adopted. The Adoption Act 1976 applies to children adopted before 30th December 2005 and the Adoption and Children Act 2002 applies to children adopted from 30th December 2005 onwards. However, many of the rules contained in the two Acts are similar.

When a child is adopted in accordance with UK law, the child generally acquires all the rights and entitlements of a biological child. In legal terms it is as if the adopted child was born to their adoptive parent or parents. A child who is legally adopted by British citizens will usually be treated as a British citizen regardless of the country of its birth.

Children adopted in accordance with UK law will also have the same rights to inherit their adoptive parents’ estates as would biological children. If a person dies intestate, (ie. without having made a will,) their adopted child has the same right to inherit their estate, or a share of it, as any biological children. This right is dependent on the child having been validly adopted in accordance with UK law and the entitlement may not exist if a child is adopted abroad and the foreign adoption was not formalised under UK law. Adopted children lose the automatic right to inherit from their biological parents.

In most of the UK, children who have reached the age of 18 have the right to see their full birth certificate, which may reveal that the child is adopted and give the name of their biological parents. In Scotland children have the right to see their birth certificate from the age of 16. A record of all children who have been adopted is now kept on the Adopted Children Register.

Adopted children who have reached the age of 18 may use another register, the Adopted Contact Register, to find their biological relatives. By adding their details to the Register an adopted child indicates to their biological relatives that they wish to contact them. However, the biological relatives must also have registered their details for this system of contact to be effective.

Rights of Adoptive Parents

Technically anyone over the age of 21 is eligible, and “has the right”, to be an adoptive parent. However, according to the Adoption and Children Act 2002, the welfare of the child must be the “paramount consideration” of both adoption agencies and of any court asked to make an adoption order. Therefore, a wide range of eligibility criteria can, and will, be applied to prospective parents.

These criteria should only relate to factors likely to influence an applicant’s ability to be a good parent and may vary according to the individual child. The line between discriminating against a prospective parent and protecting the child’s best interests may sometimes be blurred. For example, opinion is divided on whether children should only be adopted by those who share the child's ethnic background. Prospective parents who are rejected because they are from a different ethnic background could claim that they have been discriminated against and had their human rights curtailed. However, if this decision is deemed to be in the child's best interests the prospective parents' rights may have to take second place to the child's welfare.