Time to recognize children’s right to post-adoption contact with siblings
Hege Stein Helland, Ph.D. Candidate at the Centre for Research on Discretion and Paternalism and the Department for Administration and Organization Theory, University of Bergen
The Ministry of Children and Families is revising the Child Welfare Act, and hereunder the provisions related to the use of adoption as a child welfare measure. However, section 4-20a regulating post-adoption contact was continued with only minor linguistic changes, ignoring the arguments from expert by experience groups and continuing with a narrow understanding of family. From a child’s rights perspective this is problematic.
Post-adoption contact and the Norwegian Child Welfare Act
In Norway, adoption can be used as a child welfare measure without the biological parents’ consent1. Adoption without consent is an invasive measure that can conflict with several of the general principles underlying the measures applied by the Norwegian child welfare system, among other the biological principle.
When a child is in public care, biological parents and the child have the right to contact with each other – siblings and other relatives or non-kin persons only have limited access to this right – but once an adoption is decided this right is terminated. The Norwegian Supreme Court have on several occasions (Rt. 1990 p. 1274 Rt. 1997 p. 534) encouraged the legislators to consider the option of post-adoption contact – an arrangement where a limited right to contact remains after an adoption is decided – arguing that such contact could aid the balancing of different principles underlying the law and in particular to prevent the need to weigh the benefits of continued contact with biological parents up against the benefits of adoption when determining the child’s best interests.
The Child Welfare act is amended
Years later, legislators followed up on the signals from the Supreme Court and by the Act no. 18 of 4 June 2010 a new provision was added to the Norwegian Child Welfare Act (1992), namely section 4-20a on post-adoption contact (Besøkskontakt). Provision 4-20a introduced the option to grant contact between the child and her parents, if the prospective adoptive parents consent to it and if such contact is considered to be in the child’s best interests.
Nine years later in April 2019, in the consultation paper attached to the second public hearing for the proposal for a new child welfare law, Norwegian legislators proposed to continue the current legislation regarding provision 4-20a with only minor linguistic changes. From a children’s rights perspective, the provision regulating post-adoption contact is flawed as long as siblings and other persons of significance for the child are not included in this right.
Furthermore, the deliberative process leading up to the passing of the original bill had several deficiencies regarding the issue of whom to embed into the circle of persons that were to be included in the provision. In order to understand this and for why leaving the provision unchanged would be a mistake, we need to look into the legislative process back in 2009 and 2010.
The legislative process
Back in 2009, the legislators made a special inquiry to the hearing instances in the consultation paper connected to the proposed amendment to the child welfare legislation2 to pay particular attention to the question of post-adoption contact. They asked: should it be limited to the child’s biological parents or possibly another circle of persons?
Several of the hearing instances stated their opinion about the matter and there was a marked resistance towards limiting the circle of persons to biological parents. One of the organizations that commented on the proposal was The National Association of Children from the Child Welfare System (Landsforeningen for barnevernsbarn, LFB). They argued it was likely that many children would want to maintain contact with their siblings, and not necessarily their parents.
Despite the dissuading feedback from the hearing instances, in the recommendation3 that followed the proposal, the legislators (the committee) chose, based on a majority of three (the Labour Party, the Centre Party and the Socialist Left Party) to two (the Christian Democratic Party and the Conservative Party), to limit the provision to only include parents.
In other words, the decision-makers entrusted to give decisions on adoption, the members of the court-like body the Social County Board (the Board), are not given the option to grant contact between the child and her siblings as siblings are not encompassed by the provision. This is also the case for other relatives like grandparents and for other persons that the child has a significant attachment to or a relationship of trust with. As for the latter group, this was also not deliberated by the committee.
The outcome of this process can be seen as a reflection of how the biological principle is interpreted in Norwegian child law where, traditionally, the bonds that are encompassed in policy and practice as eligible for protection and conservation are those between the child and her biological parents.
Weak assessment for restricting the right to contact
The decision to restrict the provision to the child’s biological parents was based on the assessment that it posed a risk of future litigation about contact. Furthermore, the pragmatic consideration that it would entail an administrative burden if more people would have access to claim contact was weighted heavier than the child’s potential interests in contact with other persons than their biological parents.
The justification provided for this assessment was founded on the assumption that, for the child, the important thing is essentially to secure contact with her biological parents – other relationships are considered secondary – and further, that it is in the interests of the child to narrow down the pool of persons that the Boards potentially has to include in their assessment of post-adoption contact. Moreover, connected to the latter it was an argument to limit the number of persons that are in a position to appeal a decision or demand a re-examination of the case in the Board.
Issues of justification
There are three issues with the justification they provided.
First, there is no incompatibility between the argument that other persons than the child’s biological parents should be included in the provision and the argument to limit the number of persons encompassed by the provision – this is merely a matter of prioritization and individual assessment to each case. The argument appears weak as one does not take into consideration that the actual persons entitled with this right could be altered without changing the maximum number of persons whom contact can be granted per child.
Second, the assumption about the inferior value of relationships other than the parent-child order is not substantiated with any references to research nor does it contain any discussions of the normative basis of the decision, e.g. of the value of sibling relationships. We know that the majority of children that are being adopted by the child welfare act in Norway have biological siblings; two thirds of the children that were adopted between 2011 and 2016 had at least one biological sibling. Children with personal experience from the child welfare system (The National Association of Children from the Child Welfare System and the Child Welfare Pros) have on several occasions problematized the narrow understanding of family in Norwegian law and practice and argue that siblings and persons other than biological parents can be important for children.
Third, they do not consider the advice from the National Association of Children from the Child Welfare System, among other, in any substantial matter. Interestingly, the argumentation of the majority to restrict the circle of persons to biological parents was grounded in a wish to protect the child and though one can interpret their actions as an attempt to act in a child centric manner, they forego a broader discussion of the child’s interests. With these objections in mind, the legislator’s suggestion to continue the current legislation regarding provision 4-20a (new 5-11) is problematic. I will elaborate on why it is problematic to restrict the child’s right to contact to biological parents.
The problems with the Ministry’s suggestion to continue the current provision
In the consultation letter from April 2019 it is stated that the suggestions in the proposal for a new child welfare law strengthens the perspective of the child and it is further expressed as a general consideration in the note that:
«(…) the child welfare system should be based on the resources that exist around the child. This is important both to be able to implement measures that are well adapted to the needs of children and the family, and to maintain important relationships for the child if measures are needed outside the home».
This reflects the general sentiment in the note, where sibling relationships and other non-traditional relationships are acknowledged as relevant elements to consider when drafting a new child welfare law. It is among other reflected in the discussions around access after care order, where not only siblings, but also half- and step-siblings are considered important for the child to remain access to after a care order.
The value of sibling relationships for adopted and fostered children have gained political and scholarly attention in the later years and research has shown that both social and biological siblings have significance for the sense of belonging and identity for children in care. This is also referred in the hearing note in the discussion about care order access. Still, the legislators seem to lagging behind in these matters when it comes to adoption.
One could speculate, that while the legislators adhered to the recommendations from the Supreme Court they did at the same time neglect to conduct the necessary practical and normative reflections of the implications such a right would have for the child beyond the judicial benefits that was implied if a right to post-adoption contact was to be implemented.
Even though it is difficult to say anything about the correctness of the assessment that the Ministry made back in 2009 and again in 2019, the apparent lack of child’s perspective taken with concern to whom the children themselves express needs to remain contact with is no way favorable for the purpose of developing institutional spaces for the child and their autonomy, nor to safeguard the interests in a best possible way.
Recommendations for the policy-makers
When the Government appointed a committee to conduct an inquiry and to prepare a draft for a new and modern child welfare law back in 2014, it was a stated purpose that the process should include updated knowledge both from research and from the children themselves and that such knowledge should be substantially weighted when drafting the new law.
Although there is no opportunity for sanctions or coercion in the implementation of post-adoption contact, the inclusion of the siblings in this right will have a symbolic significance. At the same time, it will represent an important step in the efforts to secure and strengthen the rights of the child. With this in mind, the legislators should consider including, as a minimum, siblings in the circuit of persons with right to post-adoption contact.
Footnotes
1 By section 4-20 in the Norwegian Child Welfare Act of 1992.
2 Prop. 7 L (2009-2010) «Changes in the Adoption Act and the Child Welfare Act».
3 (Innst. 209 L (2009–2010))
The blog-post is based on the following sources:
Helland, H.S., Skivenes, M. & Tefre, Ø.S. (2019). Høringsinnspill til forslag om ny barnevernlov [Consultative comment to proposal for a new child welfare law]. Centre for Research on Discretion and Paternalism, University of Bergen.
Helland, H.S. & Skivenes, M. (2019) Adopsjon som barneverntiltak [Adoption as a child welfare measure]. Report. Centre for Research on Discretion and Paternalism, University of Bergen.