The first thing that has to be acknowledged is that the Baby Ann case is a terrible one whichever way you look at it. All participants in it deserve sympathy and recognition of the difficulties they have faced, and will continue to face, because of it.

That said, I am going to break the consensus that’s emerged and say that I think the Supreme Court made the correct decision.

From a legal perspective it was really the only choice the Court could have made. The previous High Court decision, however logical it may have appeared, was clearly in contradiction of the 1937 constitution. But that’s not my argument. I don’t believe that those who sided with the adoptive parents proved the case that it was in Ann’s best interest to remain with them, and particularly not to the extent where it should have overridden their rights as her parents.

The argument for her staying where she was was that it would be disruptive to her life to remove her from the only parents she’s ever known. Undoubtedly this is true, in the short term. But two-year-old children are remarkably adaptable and it seems unlikely to me that she will suffer ill effects from the change in the long run. It’s just as possible that she would have suffered from knowing that her birth parents wanted her back and were not allowed to have her back.

I’m also not convinced that those who supported the adoptive parents were entirely motivated by the “best interests of the child” argument. Let’s consider a scenario in which the birth parents hadn’t willingly given her up at birth, but lost her through, say, a kidnapping. Assume that the adoptive parents knew nothing of the kidnapping and believed they were adopting through proper legal means. Would there still be a consensus that the child should remain with them? I very much doubt it. Many would agree that the birth parents should regain custody on the basis that they hadn’t chosen to give the child up – although this would hardly make removing the child from her adoptive home any less disruptive. Now admittedly I’m only making an assumption here on how people would react to this scenario but it’s an assumption I strongly believe is correct and if it is, it demonstrates that there is more than the mere “best interests” argument at work here (in much the same way that many people who claim to oppose abortion on the basis that they believe it is murder are nonetheless willing to make exceptions when women don’t choose to have sex).

And what that points to is an issue I raised earlier in this blog at the time of the Jehovah’s Witness transfusion case – the risk of the “best interests of the child” being used as a convenient cover to pursue a different, sometimes more sinister agenda. Such cases have already emerged in the US, where right-wing judges have used that excuse to deny custody to lesbian mothers or practitioners of minority religions, or where women have been jailed for not adhering to prescribed standards of behaviour during pregnancy. If you recall the Elián Gonzáles case, his uncles were only prevented using that argument in their custody battle by a Florida law which states that the “best interests of the child” are relevant only in a battle between two fit parents, not between a fit parent and a non-parent. You can bet that if it wasn’t for that law, the anti-Castro mafia which controls the state of Florida would have ruled that the boy’s best interests lay outside of Cuba.

Which is why I’m also hesitant to join in the consensus over the upcoming referendum to enshrine the rights of children in the Constitution. I support it in theory, because I have no basic disagreement with the notion that children should be given more constitutional protection - not least from this Government giving its appalling record on many children's issues (poverty, education etc). But I do think we need to recognise that there is negative potential in this constitutional amendment as well – potential for children to be turned into political footballs and for “children’s rights” to become just another vehicle by which reactionary forces can exert control over adults’, and in particular over women’s, lives. The wording of the proposed amendment will be extremely important and needs to be given due attention by the progressive parties in this State. We should not simply be falling over ourselves to welcome the referendum without any reference to this very real concern.


WorldbyStorm said...

Apologies if this has been posted twice - your comments system seems to dislike me...

I have to say on this one I largely disagree with you although I understand your logic. One of the pillars of the thinking behind adoption is that the initial trauma where a child is removed from a mother for whatever reason is extremely serious. The training adoptive parents go through here and in the UK is largely directed towards ameliorating that trauma and any resultant attachment issues, phobias and so on. To compound that initial seperation appears to me to be probably piling a further trauma on the child. Knowing quite a few two year olds in my time it's fairly clear that attachments are profound. Yes, of course the child will survive, but whether it's in it's best interests seems to me to be dubious.

I'm not entirely sure that you're correct in your hypothetical situation of a kidnapping. I suspect that in that instance the reports of social services would be the first port of call, and judging from their general attituded to seperation of children from parents I can make an educated guess as to where their sympathies are likely to lie.

More to the point, while I share your fears of a conservative agenda in sheeps clothing I'm hard pressed to see how this case has any relationship to the instances that you cite. Surely the liberal agenda is best served by acknowledging that families evolve through messy processes including adoption, whether by straight or lesbian or gay biological or adoptive parents. The issue here is much more centred on whether a child should be taken from one home where it has settled over two years and removed to another where it must reinitiate bonding etc and in the process effectively destroy the de facto family that it is already in for one which has yet to exist.

It's a very tough case indeed, and I can see right on all sides, but... it strikes me that reading between the lines best practice in child care is tending towards leaving the child where she is at present. That strikes me as a much more liberal analysis than the constitutional situation which appears to lean on concepts of marriage as legitimising tools of relationships to remove the child again. Indeed it can be said that this judgement, and perhaps your central analysis, ignores the point that parenting is a little bit more than simply a noun or descriptive label and actually has an awful lot more to do with it's use as a verb.

As for the referendum, I was actually dubious about it up until this case (again sharing many of your concerns), but now I'm beginninng to think that if it can override previous concepts of family that legitimise the de jure rather than the de facto then it might not be a bad thing...

However if this sort of case can prove that those of us on the liberal wing can take opposing views of it it sort of demonstrates the fairly grim complexity of the issue...

Wednesday said...

I largely disagree with you

Most people do, that's what makes it a "consensus" :)

See, I'm not arguing that there will be no trauma involved. But in real life there are any number of situations which may cause a child trauma. The law cannot be determined solely on that basis. It's just my view that in this case, the trauma will not be so overwhelming and so irreversible as to override any other consideration.

As to the kidnapping scenario, while there would surely be people who still would favour the adoptive parents, there'd be nothing like the consensus that exists over this case. People tend to put themselves in others' shoes and a parent whose child was kidnapped is a much more sympathetic figure than one who willingly gave the child up. Just listening to some of the comments that people have made about this case, there's obviously at least an element of "you made your bed, now lie in it" from some (I emphasise, not all) corners.

That's where it ties into my fears about the reactionary agenda and the referendum.

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