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What is in the best interests of the child? Closed adoption, airbrushing birth parents – how long will these concepts continue?

25 Years’ of the 4 Jurisdictions Conference

How long will we continue with closed adoption; airbrushing out birth parents, and is an alternative akin to the Muslim concept of Takafala a better way?

The 25th Four Jurisdictions Family Law Conference, hosted by the Northern Circuit, took place in Malaga from 31 January to 2 February.

The conference, attended by Priya Palanivel and Jennifer Moore provides the opportunity for international practitioners in Scotland, Ireland, Northern Ireland, England and Wales to come together to share the developments in their respective jurisdictions; to learn, to share knowledge and to build on strong connections, benefiting lawyers and our clients.

Looking at the last quarter century of children law and contemplating what the next 25 years will hold proved interesting and thought provoking. The following themes emerged:-

  1. What is considered in the “best interests” of any child has changed. Mr Justice MacDonald noted: It is acknowledged that children have a right to know their identity. To determine what is best for any given child requires the Judge to have knowledge of their social and linguistic background, the traditions that stem from that. The test is applied more subjectively now than ever before.
  2. The Courts are more alive now to separating issues of welfare from issues of social practice, religious practice and cultural aspects of a child’s upbringing, in which the Court has no business interfering.
  3. The colossal rise in the use of social media has caused issues that Judges have hitherto had to grapple with; Mr. Justice MacDonald asked “will screen time become a welfare issue?” It of course will have been raised in hundreds, if not thousands of private law children applications and is no doubt a topic the Court will require scientific child welfare evidence in due course.
  4. It was acknowledged that our laws on closed adoption are “out of step” with Europe. Mr. Justice Hayden commented that he had once supported and believed in adoption, but said that his confidence in the practice had waned. He referred to closed adoption as being “clunky”, and said it doesn’t sit well with children having a sense of autonomy and identity. He said he had come to think of the practice as being “out of date and disproportionate”, referring to the birth parents being “airbrushed out” and difficulties with children being “deprived” of knowledge of their genetic background, which they need.

Mr. Justice Hayden referred to the positive aspects of the Muslim legal concept “Takafala”. “Takafala” in Arabic, means to take care of an orphan by providing for all of their needs, i.e. food, clothes, education. “Kafala” is a temporary delegation of parental responsibility, which sees the “Kafil” (adoptive parent) agreeing to support the “Makfoul” (adopted child) until he or she is an adult. It is common for a family member to take the Kafil role. The relationship with the birth family is not terminated; there is no airbrushing out the child’s past – Mr. Justice Hayden suggested we could, in our legal system, consider incorporating some of these ideas. He concluded in calling for “something a little lighter than the system we use at the moment.”

Rayden Solicitors are family law specialists committed to working with families and other solicitors to minimise the impact of any family law issue on the children of the family and as a result their mental health and wellbeing. We assist our clients in dealing with their family matter in a way that puts the children first and promotes their best interests.  If you have any questions or require any support regarding any of the issues in this blog, please do not hesitate to contact us.

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