‘Adoption in a Digital Age: Social Media, Children’s Rights and Appropriate

Responses’ Dr Aisling Parkes (Faculty of Law)

&Dr Simone McCaughren (School of Applied Social Studies)

‘…evidence suggests that these searches have had mixed outcomes. Some mothers are angry that they have been contacted on behalf of the adoption person, having understood that no contact would be made after their child was given up. A mixture of relief, sadness and hope overwhelms others, and yet others are simply unable to face the pain of reopening old wounds. For many the birth of their child is a secret they never shared…there is great frustration that information which by today’s standards they might expect to be made readily available is withheld from them. However such information is withheld because of the honoring of confidentiality given to the mother at the time of the birth. These adopted people have grown up with an understanding of children’s rights which was only beginning to be acknowledged at the time of their birth to be denied, therefore, such basic information as their original name unless the consent of their natural mother can be secured to reveal it is often seen as an affront to their dignity as adults and their rights as citizens’.

Cathleen Callanan, 2002

Current Adoption Law: Fit for Purpose?• Closed model / ‘transplant’ model of adoption (Adoption Act 2010)

‘…an adoption order…severs, irrevocably and for all time, the legal relationship between a child and her family of birth. It creates irrevocably and for all time (unless the child is later adopted into another family) a new legal relationship, not only between the child and her adoptive parents, but between the child and each of her adoptive parent’s families’ (Baroness Hale [2008])

• No legal right to information and tracing (for adopted child, now adult)

• IO’T v B judgment [1998] (Pre-1952 informal adoption case)

Recent Challenges to Legal Framework

1. Increased Recognition & Importance attached to Children’s Rights has served to influence law, policy and practice

2. Cyberspace 1. Growth of social media2. Increased normalisation of the internet as source of information

International Children’s Rights Law

• International human rights law is in essence about redistributing unequal power

• Have there been imbalances in power in the past?

• Rights-based analysis reminds us that the interests of one party cannot be promoted and prioritised to the exclusion of others

• Decision-makers must focus on the child as an autonomous individual with separate and competing rights and interests to which the state must have regard

• 1990s onwards – children's rights gained momentum in Ireland• Growing awareness in legal and social work contexts nationally and internationally

New Challenges to Traditional Approaches: Children’s Rights

UN CONVENTION ON THE RIGHTS OF THE

CHILD (1989)

& ECHR (1950)

Family life•Article 8 ECHR

Protection from Harm

•Article 19 CRC

Expression & Information •Articles 13 & 17 CRC; Article 10 ECHR

Identity•Articles 7 & 8

CRC; article 8 ECHR

Identity: Articles 7 & 8 CRC

… is what we know and what we feel. It is an organising framework for holding

together our past and our present and it provides some anticipated shape to

future life (Freeman, 1996)

Protection from Harm – Article 19 CRC

• State has an obligation to protect children from harm

• Children have increasing access to the internet

The Right to Freedom of Expression: Social media and on-line searching• Cyberspace is a new social environment that is distinct and unique

but it can include all the physical places where people interact

FREEDOM OF EXPRESSION (Article 13 CRC)

1. The child shall have the right to freedom of expression; this right shall include

freedom to seek, receive and impart information and ideas of all kinds, regardless

of frontiers, either orally, in writing or in print, in the form of art, or through any

other media of the child's choice.

2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or(b) For the protection of national security or of public order (ordre public), or of

public health or morals.

How has Adoption Law responded to these challenges?

Inadequate Law = Inadequate practice responses• Social work practice must operate within the parameters of the law

• Dilemma for practitioners

• Balance must be struck between the rights of both adopted children (now adults) and mothers whose children were placed for adoption

Mothers whose children have been placed for adoption

Without full free and informed

consent

Choices, input, control

Guarantee of Confidentiality

Adopted Person’s Perspective

Traditional Approaches to Information, Tracing, and

Reunion• Accredited body from where child was placed

• Formal request in writing to AAI/ Accredited Body

• Non-identifying Information *

• Decision to trace – Long waiting lists (up to two years but varies)

• Allocation of trained social worker: Support, mediate & facilitate

Responses from Adoptees: Internet and Social Media

• People are circumventing traditional approaches to gathering information

• Private investigations• National Registrars of Births

• Internet/social media search

• On-line support groups

Consequences

• Accredited Body is no longer always first point of contact for tracing

• Unmediated

• Unsupported

• Additional information – identities can be confirmed/ denied

• Internet and Open Adoption practice

• Children already have info concerning their origins

• Adoptive parents feel unsupported

Inadequate responses – Law & Practice• No right to non-identifying information (Law)

• No right identifying information (Law)

• No adequately resourced professional support service

• Inconsistent responses from accredited bodies

Moving Forward: What are the MOST Appropriate Responses?• Open Adoption Bill 2014 – Deputy Anne Ferris

• Information and Tracing Bill – Opportune time to reflect on adoption Law reform for the future

• ‘structured and regulated approach for applicants seeking access to adoption information’ and ‘to facilitate contact between parties affected by adoption, including where an adoption order has not been made’ (Former Minister for Children, Frances Fitzgerald)

• Seeks to place National Contact Preference Register on a Statutory Footing

Appropriate Responses from Law & Practice

• Law and practice need to operate cohesively

• Information and Tracing Law needs to be implemented ASAP

• New legislative provisions need to reflect children’s rights and social media concerns (proactive rather than reactive)

• Due acknowledgment given to children’s rights in social work practice

• Right to identity (future: statutory right to identifying info and open adoption practice)

• Protection from harm & freedom of expression (on the internet): safeguards and practice guidelines for safely searching online

• Resources • making information widely available • adoption and social work practice • Support and advice services

Key Question

• Why is it that the rights of some mothers to privacy/confidentiality

(which according to case law are not absolute) whose children were

placed for adoption are given priority over the right of the children to

identity (also not absolute)?

Thank you