The Proportionality of Non-Consensual Adoption in England and Wales under s52(1)(b) of the Adoption and Children Act 2002

This thesis conducts a conceptual analysis of the proportionality of non-consensual adoptions in England and Wales. It does so by examining the English legislation and case law on adoption and the jurisprudence of the European Court of Human Rights (ECtHR). This thesis considers and applies rights from the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of the Child (UNCRC) to determine when non-consensual adoption may be regarded as a necessary and proportionate interference with children’s and parents’ rights. The proportionality principle requires the domestic courts and the ECtHR to strike a balance between the various rights and interests of children and parents while taking into account children’s welfare. The final strand of the proportionality principle identifies whether the State measure is the least restrictive measure available to satisfy the State’s objective. This strand is not applied in all non-consensual adoption cases heard by the domestic courts or the ECtHR. However, this thesis argues it is essential to identify whether less restrictive alternatives exist as these measures may prove equally effective in protecting children’s welfare when compared with adoption, and may also protect children’s and parents’ rights. This thesis makes a conceptual contribution to the academic scholarship on non-consensual adoption law by identifying how the UNCRC, the ECHR, the best interests principle and ECtHR jurisprudence can be applied so as to provide optimal protection for children’s and parents’ rights in adoption cases. This thesis concludes that judicial reasoning in the courts should routinely consider UNCRC rights and the effectiveness of less restrictive alternatives. Furthermore, it argues that there is a positive obligation under ECHR Article 8 to provide State assistance in circumstances where children can safely be raised by their parents, which is not yet recognised in English case law.