Hello everyone!
I am resharing this post for two reasons: I have figured out what was preventing me from sending emails directly from my web domain www.notalegalrecord.net; and I am including the link to Judge Richard Doman's judgment, which you can copy and paste. My newsletter platform inserts so-called "query parameters" (into the links I embed in my posts. Usually they cause no trouble; but with the UK Family Court webpage, the addition of those parameters breaks the link. Technical note: you can always copy the first part of the link, which comes before the question mark, and paste it into a browser window. But my goal is to figure out how to eliminate the query parameters so you don't need to bother. Thank you!
Here's the post.
People who come across my posts on adoption often ask me what the alternative should be. There is the constructive version of this question: If the sociolegal practice of adoption were somehow abolished, what should replace it? And there is the hostile version: Would you have infants tossed in dumpsters, or languish in orphanages, or suffer some other horrific fate?
When the hostility is not tactical—misrepresenting my position to cast me in a morally ugly light—it might rest on a misunderstanding. When I talk about adoption, I am talking about a historically specific set of legal, social, and economic practices, pioneered in the United States and widely emulated in other European and Anglophone countries. When I criticize adoption, when I imagine abolishing adoption, I mean this set of practices. I do not mean all forms of long-term custodial care for a child outside their immediate family. "Adoption will always be with us"—yes, in this latter, broad sense. Of course it will. But adoption in the specific form I am concerned with did not exist before the early decades of the 20th century; to say that this will "always be with us" is to ignore the contingency of history. I think of Ursula K. Le Guin's remark about resisting the despair of thinking historical forces are immutable:
We live in capitalism, its power seems inescapable — but then, so did the divine right of kings. Any human power can be resisted and changed by human beings. Resistance and change often begin in art, and very often in our art, the art of words.
Our official understanding of the purpose of separating families is that, regrettable though it may be, it is sometimes necessary for protecting children in parlous circumstances. Indeed, on the official understanding, the best interests of the child are paramount, taking priority over all else. This is codified in the UK Adoption and Children Act 2002:
The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.
This language has a noble ring; it also imposes a high standard. Promoting the welfare of a child "throughout his life" would seem to require both keen foresight and considerable power over the trajectory of that child's life.
As for power, it seems little remarked upon, outside activist circles concerning adoption and foster-care policy, that a court order to terminate someone's legal parental rights for transfer to adopters is an extreme, if not absolute, exercise of state power. That order has lifelong effects on not only an adoptee but the original and adoptive parents, and their families, and the adoptee's descendants. All are affected by the "permanent sever[ance]" of "legal and practical ties" between the adoptee and their original parents—of "ceasing to be a member of [their] birth family."
I am now quoting from the judgment delivered by Richard Doman (https://www.bailii.org/ew/cases/EWFC/OJ/2023/239.html) in a UK Family Court case last year concerning Frank, who was three years old at the time that Judge Doman's order severed Frank from his original family and delivered him to his fosterers as their adoptive child.
I won't recapitulate Frank's story in detail: I urge you to read the judgment for yourself. Some of the key particulars are these:
Frank was removed from his mother for foster care immediately after his birth in 2020, owing to "Helen's long-standing substance misuse problems, including an overdose during her pregnancy with Frank; her unstable mental health; and, her ability to safely parent her children."
Frank was placed with his prospective adopters in October 2022, and "has been seen to thrive in their care since."
The prospective adopters formally applied for adoption in January 2023. Helen appeared at those proceedings and expressed her desire to oppose the adoption. Her sister Linda also appeared, and expressed her desire to be evaluated as a custodial guardian for Frank, as her (Linda's) domestic circumstances had changed.
Case workers' assessments of Linda were generally positive, although they raised doubts about Linda's commitment to guardianship responsibilities because she appeared not to be fully "open and honest" during her assessment. Judge Doman repeatedly notes in his judgment that Linda's absence from subsequent legal proceedings, particularly the final hearing, suggests a "lack of commitment to Frank."
Again, I recommend reading the judgment yourself. Lacking all but what is contained in the judgment, I find it reasonable to conclude that Helen's circumstances render her incapable of long-term care for her child. It is the opinion of the case workers and the judge that Helen's sister Linda is not capable of fulfilling the demands of guardianship—although we should note that a principal reason for this conclusion is that while Linda demonstrates the capacity to care for her own children, and for Frank's older brother Adam, she is deemed unable "to protect Frank from the chaos of his mother and wider family's life and the emotional harm and instability that would cause him."
I found this reasoning somewhat difficult to follow. (Linda is qualified to care for Frank's brother but not Frank himself?) As seems typical in family court cases, those opposing the prospective adopters' petition must commit no missteps, lest they be cited as evidence for unsuitability. Linda did not fully participate in the proceedings—an insult less to Frank than to the state powers deciding his fate. But one interpreted as a lack of commitment to Frank's care.
Once a parent is caught up in the child welfare system, the deck is stacked against them. If there is "chaos" in their domestic life, reasons for imposing the family death penalty are not difficult to supply. For your domestic life is laid open to the system's scrutiny, potential demerits lurk everywhere. Not only does Linda's behavior toward the system's agents inspire doubt; Frank's original family's beliefs—confirmed or suspected—can supply reasons for removing him.
Judge Doman speculates on why Frank's family decided to contest his fosterers' petition when they did.
As I commented above the maternal family are Roman Catholic and the assessments demonstrate that Linda considers herself guided by her "intrinsic" Catholic faith. It was in a discussion with the local authority's social worker on 21st February 2023 with the maternal grandmother, that the local authority shared that Frank's prospective adopters were a same sex couple. The maternal grandmother's reaction was that she became very upset and commented that these circumstances were against her religion and that the family would oppose Frank being adopted by a same sex couple.
In Judge Doman's courtroom, as is typical of adoption hearings, some degree of lip service is paid to the importance, all things considered, of keeping children with their original families. Yet, to cite homophobic attitudes in Frank's family as a reason for doubting their motivation in petitioning to keep him is to imply the application of a strict standard that many families would fail, but for managing to avoid enmeshment in the system.
Judge Doman offers nothing but glowing words of praise for Frank's prospective adopters. Their home is free of chaos; they cooperate readily and efficiently with the care system and the court; they harbor no morally suspect beliefs. Judge Doman does not need to say that they "deserve" this child, and that his family does not. To do so, in any event, would be at cross purposes with the stated mission of the care system and the family court: to put Frank's interests to the fore.
This judgment makes us reflect on how family court actions manifest cultural expectations about social class and standards of "proper" behavior and thought. Dressed up as a dispassionate assessment about promoting Frank's "welfare, throughout his life," it is a morality play, with heroes and villains.
And it is not so dispassionate after all. Judge Doman shares in the belief that permanent legal severance, with no possibility of appeal or reversal—the family death penalty that results in Frank's "ceasing to be a member of his birth family"—is in his best interest. Why can there be no further process for reunification? Because the adopters' interests are tacit, but real, even determinative. The judgment does not reveal what we already know to be true in so many cases of "foster-to-adopt": people enter the system as foster caregivers with the ultimate goal of building a family with other people's children. We can only speculate whether this is true of Frank's adopters.
In one particularly astonishing passage, Judge Doman implies that the bitterly adversarial nature of the family court process for taking a child from their family and giving them to another is a demonstration of the fosterers' love for Frank:
I was particularly touched by the fact that [the prospective adopters] articulated that they were grateful for Helen's application for leave to oppose the adoption because they feel it strengthens the narrative they intend to give to Frank by explaining how loved and wanted he was by them.
There is a callousness here, a cruelty, made all the more shocking by Judge Doman's professing to be "touched" by it. The prospective adopters are eager to use their adversarial posture towards Frank's family to prove to him that they loved him.
Judge Doman concludes his judgment with an "open letter" of sorts to Frank, acknowledging that adoptees from foster care might look to their court documents for clues to understanding how and why their adoptions happened. And this letter could have been written by a marketing team for an adoption agency, whose business is to find children for adopters, and fulfill their dreams of making families.
I will end by citing a few passages in the letter.
I want to start by telling you that in many ways you are very lucky for two reasons. First, you have a birth family who dearly wanted to care for you, fought for you and to bring you up within their family. Secondly, your adoptive parents desperately wanted to care for you and wished for you to become their son; they withstood all the emotional turbulence that these proceedings bring to adoptive parents and were unwavering in their love for you and desire to give you the very best home they can.
In what sense Frank can be counted "lucky" in any of this, I can only leave to Judge Doman to explain.
I don't have a crystal ball; I can only make decisions about you based on the evidence I have available to me at the time I make it.
And yet the permanent, irrevocable severance of family connections through adoption implies that any future change of evidence or circumstances is irrelevant. Maybe Judge Doman ought to have a crystal ball.
Returning to my crystal ball: on all the evidence that I have available to me I am very confident that you will have a wonderful life with your adoptive parents. You are their number one priority. You are their son, and will be for your entire life. Their family life is your family life. They will love you, comfort and nurture you to become the person you are when you read this. When you do I hope that it provides an answer if there was a question, understanding if there was confusion and some comfort if there is hurt.
With this message, Judge Doman closes his judgment on Frank's case with one of the core ideas of modern adoption: Adoption is family transubstantiation. Frank is instructed on whom to call family, now and forever. The judge has a crystal ball after all.
How beautiful Frank's adopters look inside it.
How eternally will Helen and the rest of her family be punished for their failures.
How blinkered any of us must be to regard this as good fortune for Frank.