Naomi Angell, a member of the Law Society’s Children’s Law sub committee, examines the impact the Ukraine war could have on international adoption
In international conflict such as in Ukraine – when we are seeing the greatest refugee crisis in Europe since the Second World War – children can become separated from their families and moved across borders.
They may have been orphaned during the conflict or their orphanages destroyed.
These children fleeing from war zones are the most vulnerable of refugees, at real risk of trafficking, exploitation, abduction or sale.
The instinct for families in safe countries is to rescue these children and give them the refuge and security of a welcoming family home through intercountry adoption.
Over the years, intercountry adoption has been seized upon as an answer for children placed at risk by war or natural disaster.
It happened in Romania in 1990 after the fall of Ceausescu, when hundreds of children were discovered living in indescribable conditions in state run orphanages and in Haiti in the aftermath of the 2010 earthquake, when 1,500 children were adopted into the US.
However, is adoption always the right decision?
Landmark case in 1997
The risks of this desire to help these children through intercountry adoption could not be more vividly illustrated than in Re K (Adoption and Wardship) in 1997.
In the midst of the 1992 armed conflict in Bosnia, a baby girl was found under the body of her mother. A journalist took up her story and, with the help of a charitable organisation, the baby came to England for medical treatment and was placed with foster parents.
In time, the child became one of the family and only spoke English. She was also baptised as a Christian.
The foster-parents decided to adopt her and in a court process – which was later found to be seriously flawed – an adoption order was granted to the foster parents.
One of the most significant flaws was that it was not brought to the judge’s attention that the Bosnian authorities had announced that intercountry adoptions of Bosnian children should not take place.
The County Court judge hearing the case also directed that it was not necessary to appoint a children’s guardian.
Had a children’s guardian been appointed, they would have made enquiries as to whether family members of the child could be traced and would have sought the views of the head of the Bosnian Red Cross who had been appointed by the Bosnian authorities as the child’s guardian when the baby travelled to England for medical treatment.
This did not happen. Both these failures would have made it very unlikely that an adoption order would have been made.
In the meantime, a grandfather was found in a Red Cross refugee camp in Switzerland and it became clear the child and her family were Muslim.
The Bosnian guardian and the grandfather appealed against the adoption order. The Court of Appeal set aside the adoption and transferred the case to the High Court for re-hearing.
The High Court judge ruled that it was in the child’s best interests to stay with the adoptive family as she had formed a firm attachment to them and their other children, and that it would be damaging to her to be uprooted again.
However, her legal status within that family should be as a ‘ward of court’ – under the supervision of and protected by the High Court – rather than by an adoption order, which terminates the parental status of the child’s birth family and transfers it, in its entirety to the adoptive family.
The judge’s decision that it was in the child’s best interests that she should stay with the English family, was despite him acknowledging that a wrong had been done to the child’s birth family, whose right to have the child returned to them was completely accepted.
Substantial defined contact was granted to the child’s birth family, and the English family were to ensure the child received appropriate instruction in the Bosnian language and the Muslim religion.
War in Ukraine
Cases such as Re K inform how we should help children in Ukraine and provide them with safety and security in the UK.
One organisation working in the interest of children’s rights is the Hague Conference on Private International Law (HCCH).
The HCCH is an intergovernmental organisation working for the harmonisation of the rules of private international law. It has 91 members including member states of the European Union and the UK.
The body administers a number of international conventions including the 1996 Child Protection Convention and most significantly for these Ukrainian children, the 1993 Hague Convention of the Protection of Children in intercountry adoption.
The convention established an international system of cooperation to prevent the abduction, sale and the illegal trafficking of children and to regulate intercountry adoption.
In response to the plight of the children displaced by the war in in Ukraine, the HCCH published guidance on the Situation of Children Deprived of Their Family Environment due to Armed Conflict in Ukraine.
The guidance recognises the risks to vulnerable children caught up in conflict, and stresses that the primary concern for these children should be their safety and protection, rather than adoption.
The conflict in Ukraine should not be used as a justification for circumventing or disregarding international standards and essential safeguards to expedite adoptions of these children.
Importantly, the HCCH states that it must not be assumed that these unaccompanied children are orphans or in need of adoption. The firm priority should be to find and reunite these children with their birth families. Adoption is not compatible with this.
Adoption v temporary child-centred plans
In late March, a group of 52 children from orphanages in a Ukrainian war zone were brought to this country with their appointed guardians and carers.
The children were kept together and have been put up in accommodation near Stirling in Scotland. It is planned that, in time, they will be moved to small family-style groups.
For children who have already lost so much, keeping them together is the best course and the plan that has been set out is firmly child-centred, as it should be.
Childcare policies should always prioritise conserving as many links as possible for children, whether or not they’ve been brought up in institutional care, and their losses must be minimised.
In this war, losses for these Ukrainian children may include having to abandon the children’s homes where they’ve been living, the only homes they would have known, and with other children who have become their family.
It should equally be the case for children orphaned by or separated from their families in the turmoil of the war.
Maybe this should be the paradigm that emerges from this tragedy, that these children should be kept together, either with one or two others in a foster home or in group accommodation and looked after by their Ukrainian carers.
Although adoption might, in time, be the best long-term solution for some of these children, it should not be a primary objective in these chaotic and traumatic times.
