Ilona, 20, came to Britain from Hungary two years ago to make a better life for herself, and has worked as a hotel chambermaid. An attempt to get a late abortion brought her to the attention of children’s social services. She told social workers that she and her partner did not have the financial means to look after their daughter and were prepared for her to be taken into care and adopted in Britain.
The parents wanted nothing further to do with their child, Annuska, but they did want the best for her and opposed the local authority’s plans to return her to Hungary for adoption or to be looked after by another family member. They didn’t want relatives in Hungary to know about their child or for her to know about her origins and history.
They firmly believe the better life they sought for themselves in Britain should be available to their child. But Hungary regards all children born to Hungarian parents as its nationals and demands the right to decide the fate of those who may be subject to care proceedings or adoption in Britain.
Annuska’s case is far from unique. Across the UK, children’s services have seen growing numbers of complex child protection issues among families from eastern European countries since their accession to the EU.
“Free movement of workers and their families within the European Union has led to many children living, permanently or temporarily, in countries of which they are not nationals. Inevitably, some of them will come to the attention of the child protection authorities because of ill-treatment or neglect, or the risk of it,” Lady Hale said in the supreme court this year in a case of two young Roma girls over whom Hungary wanted jurisdiction.
Until a few years ago, cases of migrant parents voluntarily giving up their children were virtually unknown. Frank Feehan, QC, a barrister and family law specialist, is supporting Ilona’s case to have her daughter adopted in Britain. He says: “Relinquished baby cases number about 20 or 30 a year. We had never heard of these cases a few years ago.” Cross-border care and adoption cases now number hundreds a year, he adds, “almost always from EU accession states”.
Poverty is a common factor. Migrant workers come to escape poverty but find they cannot do so even when they find work. Karen Goodman, professional officer at the British Association of Social Workers, says she is seeing more child protection cases among children of eastern European parentage as a result of poverty and domestic violence, as well as cases like Annuska’s where parents are actively giving up their children to UK authorities because they do not wish them to grow up in their home country.
Cultural and religious concerns are also a factor. Alexandra Conroy Harris, legal consultant for child placement charity CoramBaaf, says social workers became aware of “relinquished children” cases at the time of the first wave of migration from Poland in 2004. If women had unwanted pregnancies, “as Catholics they would not go for terminations. This way [putting them into care] they did not have to tell their families back home”, she explains
Anthony Douglas, chief executive of Cafcass, which provides legal guardians in care cases, warns against the “charged implication that parents come here to offload their children for adoption” as a misuse of EU migration arrangements. He says “relinquished children” are a small proportion of foreign child protection cases. Still, he concedes that the growth in cross-border care proceedings poses big problems for the local authorities concerned. Should children taken into care be fostered or adopted in Britain, or returned to their parents’ home country?
Latvia and Slovakia also take a similar stance to Hungary. They consider they should have the right to decide the fate of all children born to Latvian or Slovakian parents. Relations with all three countries are “highly charged”, says Douglas.
British courts are having to decide whether it is in the child’s best interests to agree to the demands of these countries and allow care decisions to be taken there. According to EU regulations, the best interests of the child are the priority, and the “best placed” jurisdiction for those interests to be decided is usually where the child is habitually resident, unless they have a particular connection with another member state (such as their homeland). Best interests may include considering ethnicity and ensuring children maintain links with their cultural background.
The regulations require British courts to recognise other EU courts and child protection services as not inferior in “competence, diligence, resources or efficacy”. Yet, of course, there are differences, hence the tensions between Britain and some other EU nations. In particular, some of the EU authorities use orphanages more than Britain does and object to Britain’s use of fostering and adoption without parental consent. “We in Britain think foster care is better but we can’t use that as a reason for not sending children back,” says Conroy Harris.
In the case that went to the supreme court, Hungary wanted jurisdiction over two Roma girls aged three and four, who have been fostered in Britain for three years. The foster carers are not an ethnic match and the girls are not learning Hungarian. Their parents, now back in Hungary, have been trying to have them returned to the country.
The case went all the way to the UK supreme court where Lady Hale ruled that from a best interest point of view, the English family court was where the decision about the girls’ future should be made. It would be able to choose from a range of options, whereas a Hungarian court would always exclude care in Britain and reject non-consensual adoption in the UK – even though that might be in the girls’ best interests.
Not all eastern European countries take the same view as Hungary, Latvia and Slovakia. In another case, an Estonian department of children and families official, Ly Ruus, wrote to the English family court: “We are very happy for the baby finding new parents. For a child growing up and being responsible and a good person, it does not matter where you are born and where you live – all that matters is the love and care you get from your parents who will be around you.”
That view is supported by Andrew Webb, the lead on family justice at the Association of Directors of Children’s Services. Cultural roots are important, he says, but babies can develop perfectly well in different circumstances. They should know their life story so they can look for their roots, “but I don’t think that’s the same as making a decision on the basis of the nationality of the child”.
But Feehan believes there is a fundamental problem in Hale’s approach in terms of relations with other EU states. “Courts must be careful when exercising this jurisdiction. It cuts across the traditional principle that legal status should not change unless all parties agree.”
In contrast, Nuala Mole, founder of the Aire Centre, a charity advising on European legal issues, finds Hungary, Latvia and Slovakia’s stance outdated. “The idea that states own their citizens and have the right to make decisions about them is old-fashioned,” she says. Under international law, states are signed up to the primacy of the best interests of children. “The home territory is the EU – not individual countries.”
And if Britain leaves the EU? “British courts wouldn’t have to decide on which jurisdiction is best placed to hear the cases,” says Mole. But she assumes Britain would try to sign up to agreements such as the European Free Trade Association and so the EU legal regime would remain in place.
In Annuska’s case the high court ruled that, despite the EU regulations, her parents had given valid consent for an adoption, so the English family court, not a Hungarian court, can make decisions in her case.
The family court has now heard her case and dismissed the local authority’s application for a care order, which would have resulted in her return to Hungary. Mr Justice Baker said that “such a plan would not be in [Annuska’s] overall interests”. The local authority has therefore confirmed that she will be adopted in England, in accordance with her mother’s wishes.
Baker said: “A move to Hungary would in my judgment be far more disruptive and damaging than an adoptive placement in this country which will involve only one change of carer, no language difficulties, and a transition that can be arranged at a pace and in a way that best meets [Annuska’s] needs.” He accepted those needs included being brought up with an understanding of her background and cultural heritage, and said that “those who arrange her adoption should look carefully to ensure that any proposed adopters are aware of this factor and have the ability and commitment to bring her up with such an understanding”.
As for the two Roma girls, they have been fostered for so long in Britain and have not learned Hungarian, so it seems unlikely they will go back to Hungary even if the UK votes to leave the EU.
• Some names have been changed