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Adoption Laws, What needs to change?

Adoption Laws – What needs to change?

In somewhat of a reaction to the recent news of the new born abandoned at the Coronation Market earlier this week, the Minister of State in the Ministry of Education Youth and Information, Robert Nesta Morgan recently made statements indicating the need for “abandoned babies to be placed with an approved foster family without delay” and the Minister of Education, Youth and Information Fayval Williams also indicates that there is a need for change in how the society and state manages issues of adoption and abandonment.  We have been promised that they are fast tracking the tabling of a new Adoption Act, and yet still no one has really said what changes will be made.

Well before a problem can begin to be solved one must identify and admit the issues and shortfalls that plague the Adoption system.

So, let us address these abandoned babies. Earlier this year I wrote an article titled, “Did we Facilitate the Pit Latrine Babies?”, who were both abandoned in 2019, but before that, on April 4, 2018, a new-born was found dead in a trash can in the vicinity of the National Gallery. Now here we are again in 2020, another abandoned baby, who thank God did not suffer the same fate.

I have had the incredible joy of being the first person to inform a mother that she is going to have a baby, only to be greeted with tears and fear, shock, and dismay. They then plead for me to tell them how to get rid of the child and despite trying my best to convince them otherwise, I watch them walk out of my office knowing they are going to solicit and most likely acquire the advice they need to terminate the pregnancy.

I imagine the women who threw away these babies are women who simply did not or could not find a way to terminate the pregnancy and so they waited it out, and once able, they terminated their connection to the child. These mothers need to be supported during pregnancy, to know that there is another option out there, to have their hand held through the process and then be guided toward adoption instead of the dreadful alternative. We cannot fix this with legislation, and I think Minister Williams agreed when she stated that “We need to better support families and parents in need, whether to improve their material and psycho-social situation so they are able to care for and raise their child, or to place the child with one of the many approved, waiting families.” But how? Who? When, Ms Williams?

In an article titled, ‘Adoption dilemma’, published on January 5, 2014 Ingrid Brown starts her article by stating, HUNDREDS of children will never lose the label ‘wards of the State’ because their biological parents are failing to sign over their rights to have them adopted by families who have been fostering them for years.”

She goes on to tell the story of a 36-year-old woman who has been trying to adopt a child that was in her care from the age of six months.

Despite being told that she would be able to collect the baby immediately after birth she was turned away and told to wait until the child is six months.

Having collected the child at six months old and caring for her she was in the process of trying to adopt the child who, according to the article was now five years old.

Despite not being able to contact the parent from 2012 she was informed that the adoption process would not go forward because of lack of consent from the parent. She also indicated that the then Child Development Agency (CDA), now Child Protection and Family Services Agency (CPFSA), informed her that they would need to run an ad for six weeks and if there is no response, she would then be able to adopt the child.

However, the story ends in frustration as the last information she received from the then CDA was that her case was handed to another adoption officer and when she contacted the Department, she was informed that nothing could be done since they had not heard from the mother.

Having myself interviewed persons who have adopted and fostered children I certainly think this is the stereotypical example of what it feels like to go through the process of adoption in Jamaica. So how is a new Adoption Act to help this?

Firstly, according to s. 13(3) of the Children (Adoption of) Act (hereinafter called the current Act) a child can be adopted as young as 6 weeks. It therefore raises the question as to why this foster mother was told to wait until six months and furthermore what change will be made in the act to effectively have a child placed into care of a potential adopter at the age it already stipulates?

Secondly, the current act under s.11 states that the Court may dispense with required consent when:

(a) in the case of a parent or guardian of the child, that he has abandoned, neglected, or persistently ill-treated the child or has persistently failed without reasonable cause-

(i) to discharge the obligations of a parent or guardian of the child; or

(ii) to demonstrate interest in the child;

(b) in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the child, that he has persistently neglected or refused so to contribute;

(c) in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld or for any other reason such consent should be dispensed with.

In the story we revisited the mother was made aware of the ability to dispense with consent by advertising a notice for six weeks, however it seems this was not done before her case was handed over to another officer and then went cold. So, I ask again, what are we trying to change in the current Act when it already provides a solution for this problem?

I now bring our attention to a 2015 case, Adoption Board (The) v In the Matter of the Children (Adoption Of) Act [2015] JMSC Civ. 185, over which Justice Sykes, as he was then, presided.

The matter was an appeal of the decision of the Adoption Board which denied the applicant the ability to move forward with an adoption of a 16-year-old girl, his second cousin, for whom he cared for since she was in her mother’s womb.

This form of adoption is what we refer to as a “private adoption” because the child was never a ward of the state and was being given up for adoption directly by the parent to the adopter. But to be clear, private adoption does not exist in Jamaica because all adoption must be approved by the Adoption board of the CPFSA.

Justice Sykes, defined adoption by reference to the dictum of Lord Simon, at paragraph [9] he states:

“The essence of what an adoption is and what it does was captured in the dictum of Lord Simon in O’Connor v A and B [1971] 1 WLR 1227 at pages 1235 – 1236: The upbringing of its members until they are in a position to assume independent membership must be the concern of any society. Nevertheless, for a number of reasons, societies generally delegate the main responsibility for the upbringing of their infant members to the natural parents. Hence arises a reciprocal primary right in the natural parents to bring up their own child. The right of the child to be decently brought up to adult membership of the society needs no analysis or expatiation. But there will be some natural parents who do not wish to enjoy the rights, with their concomitant obligations, of bringing up their natural child — indeed, wish to surrender such rights and obligations. On the other hand, there will be people who, for various reasons, will wish to enjoy such rights and assume such obligations in respect of a child who is not their natural child. Adoption is the procedure whereby the two classes of adults — those who wish to surrender their rights and obligations in respect of a child and those who wish to assume them — are brought together, so that the latter are legally substituted for the former in relation to the child in question.”  (emphasis added)

After carefully analysing the current Act and the adoption process Justice Sykes, at paragraph 7, came to the conclusion that the two-step process of requiring potential adopters to apply for a licence which then allows you to apply for adoption has no basis in law. The process is and should be a one step process, which is to apply to adopt a child, as provided for by the current Act. 

He further noted, in paragraph 10, that the practice of the Board was to consider applications based on the reports placed before it and not to interview the applicants. 

He indicated at paragraph 4 – 5,

 “The reasoning of the Board goes like this: in order for a child to be eligible for adoption it has to be shown that the present circumstances are deficient in some significant way. While a deficiency is necessary it is not sufficient to justify adoption. The sufficient condition is met when the deficiency is significant enough to lead to the conclusion that the child is in need of care and protection. Unless that threshold conclusion is reached then the adoption is prevented.”

[5] “anyone familiar with the concept of care and protection will know that it connotes the idea of a child who has been abused, neglected, or is at risk of being abused or neglected or both

And that,

“Neither counsel for the Board nor the witness for the Board was able to provide any theoretical or practical justification for the need to form this conclusion before a child could become eligible for adoption.”

At paragraph 41, Sykes J succinctly states the that the Board refused the application despite the following undeniable facts:

a. the child has never lived with the biological father;

b. the child spent the first six months of her life with her biological mother and has never, in the last 15 ½ years lived with her mother;

c. the male applicant has been, on the evidence, the sole or main source of income that has supplied the needs of the child for her entire life including life in the womb; d. the child lives in one-bedroom house with two beds;

e. the inference from all the material is that this child has no other source to turn to for material assistance;

f. her mother does not work consistently and has three other children none of whom lives with her;

g. her biological father has one other child, and he has consistently said he cannot look after the child.

He captured my sentiment, and the sentiment of many readers I believe, in this statement as he concluded that the Decision of the Board was to be set aside:

“To deny a 16-year-old who is coming to the end of her school life the opportunity to be adopted by the applicants, one of whom has been supporting the child all her life is difficult to understand. To deny a child the opportunity to break the very evident cycle of persistent poverty, early pregnancy (as has happened to her mother who has gone on to have three more children none of whom lives with her) and reduced economic, social, and educational opportunities on the ground that she is not at risk is not easy to appreciate. But this is exactly what the Board has done by its decision.”

How do we address these issues by tabling a new Act when the Board seems to be in the practice of ignoring or adding to the current Act, without justification? How do we solve the issue of the board determining that a child has to be in need of “care and protection” before being eligible for adoption? How do we support the definition of adoption as being “the procedure whereby the two classes of adults — those who wish to surrender their rights and obligations in respect of a child and those who wish to assume them — are brought together, so that the latter are legally substituted for the former in relation to the child in question.”

Well in my opinion until we start talking about the privatisation of adoption, we will not be addressing any of these issues.

The fact is, Section 4 of the current Act, restricts any person or body, other than the adoption board from making arrangements for the adoption of children. This is further strengthened by section 21 which restricts any person from advertising that they are desirous of adopting a child, giving up their child for adoption or are willing to make arrangements for the adoption of a child. At first glance, the problem may not be very apparent, but if you look deeper you will suddenly feel the sting of these restrictions.

If you are like me and most people, I discussed this with, when you think about the adoption process, much like pregnancy, you would like to choose who to trust through this very delicate process, you would like to have your hand held, to have someone advocate for you, support you, guide you and ultimately take you safely to the finish line, not a moment later than is necessary.  You certainly do not want to start this process with a stranger, in this case the officer assigned to your case, and worst, be assigned to another officer somewhere along the process, all while not being able to feel like you can hold them accountable for their action or inaction.

If I were thinking of giving up my child, I would not want to go through a government agency. I would not want to deal with any person that happens to be assigned to me, I want to find someone I trust, someone I can lean on, I want to feel that utmost confidentiality is being maintained, I would want it to be PRIVATE.

Furthermore, it certainly is not right for someone desiring to adopt from a person who has already handed over a child to them and given their consent, to then be declined by a board of members they have never met. If I may give myself permission to speak freely and boldly, “How is this their business?” And how can a Board supersede the consent of the parents, who are willing to give up their child for adoption? If they take that position, they are effectively saying the parents do not have the child’s best interest in mind and if that be the case the child cannot be then made to stay with those parents.

It is my humble opinion that these issues have been present for many years and will continue to exist if it continues to be solely a public process. Creating a family is not a public matter, the ability to be a parent is the natural path of maturation and therefore the incredible mountains that we have to maneuver to do just that is simply superfluous. We can, as responsible adults, make these decisions and come to these arrangements without having to get a public body involved. The Supreme Court is obviously more than competent and able to satisfy themselves, before making an adoption order, that this there is nothing nefarious happening. So, to answer my own question, “Adoption laws, what needs to change?” Section 4 and Section 21, let us change that, let us remove section 3 of the First Schedule, requiring the application to the Board, in fact let us remove the Board from the process (unless the child is a ward of the state) and allow the Court to play its role. Let us support the transition of responsibility from those who cannot manage it or do not want it to those who are desirous of becoming responsible for a child. Let us allow family life to be what it should be, PRIVATE.

Dr. Xinyu Addae-Lee

(Medical Doctor and Attorney-at-Law)

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