Sat | Aug 19, 2017

Laws of Eve: Victory for Adopters

Published:Monday | October 5, 2015 | 10:00 AM

I am grateful to all the persons who took the time to call, send an email or point me in the right direction in response to last week's article.

One such person told me about a judgement delivered by the Supreme Court in favour of adopters who appealed a decision of the Adoption Board denying them the opportunity to proceed with an adoption. The reference to the case is [2015] JMSC Civ 185, as the names of all persons connected to the adoption were withheld.

A Jamaican man and his Russian wife, who reside in South Carolina, United States, submitted an application to the Child Development Agency to adopt the man's 15-year-old second cousin. Although both of her biological parents are alive, she had only spent the first six months of her life with them, and her cousin had financially supported her all her life. In fact, prior to his migration, she had lived with him in Jamaica for five and a half years. At the time of the application, the child was residing with her grandmother.

 

BOARD'S ASSESSMENT

 

When the adoption application went before the Adoption Board for determination as to whether an adoption application should be submitted to the court, the board found (among other things) that, "... the paramount interest of the child is to be with their (sic) parents ... . In the assessment that was carried out, there weren't any issues why the child could no longer continue living in the current situation. The child was not in need of care and protection or in any danger ... the Adoption Board saw no compelling reason why the child should be adopted. The best interest and welfare of the child has not been established why she needs to be adopted."

In allowing the appeal, the judge found that the board seemed to operate (erroneously) on the premise that, "no adoption should be allowed unless the child is at risk", rather than assessing the case to determine what is in the best interest of the child. In fact, he stated that the Board's findings implied that "very significant deprivation" should exist before adoption is considered, which is wrong.

A number of the Board's practices were criticised by the judge:

• Turning the adoption into a two-stage process to include an application for a licence and then an application for an adoption order.

• The Board has created something called an adoption licence, when no such thing exists under the statute.

• The Board, which is empowered to do such things and make such recommendations concerning the adoption of children, did not interview any of the persons involved in adoptions. It relies solely on reports placed before it.

Here are some crucial facts the judge elicited from witnesses at court, but which were not contained in the reports to the board:

• The house in which the child lived had no running or piped water and no bathroom.

• The occupants of the house (including the 16-year-old young woman) bathed in full view of passers-by.

• The toilet was a hole in the ground.

• Cooking was done outside, and if it rained, it was done inside the single-room structure in which they lived.

With due credit to the Child Development Agency, adoption was recommended - it is the Board that got it wrong. So inexplicably wrong was the Board that the judge said, "Short of mental and emotional abuse, it is not easy to imagine what more should have been missing from this child's life before it could be said that her present circumstances were far from ideal."

Although each case will be determined on its own facts, with so many of our nation's children in desperate need of a protective and loving environment, the Adoption Board must do everything in its power to avoid getting it wrong!

• Sherry Ann McGregor is a partner and mediator at Nunes, Scholefield, DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com