A new article published in Family Court Review, argues that the widespread practice of unnecessary termination of parental responsibility drains child protection systems of their resources, causes children and their natural parents long-term damage, and is in legal violation of families’ human rights.

Researching Reform — and the Children and Families Truth Commission — fully support this view, as readers of our blog will know.

The article, published on 23 March, was written by Vivek S. Sankaran, a clinical professor of law at the University of Michigan Law School who directs the Child Advocacy Law Clinic and Child Welfare Appellate Clinics at the law school, and Christopher E. Church, an Academic Affiliate and Pro Bono Attorney with the CHAMPS Clinic at the University of South Carolina School of Law, a pediatric medical-legal partnership. He is also a Senior Clinical Fellow at Emory University School of Law, where he co-directs the Appeal for Youth Clinic, supporting civil and criminal appeals to protect the constitutional rights of children and their families.

While the data and research in the article focus on the US, the practice of terminating parental responsibility, the presence of child-rights focused legislation, and the approaches to social work in parts of the US which are cited in the research, make this article relevant to Britain’s own child protection system.

Parental Responsibility (PR) in England and Wales is set out in section 3(1) of the Children Act 1989, which describes PR as,”all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

Not everyone who has brought a child into the world automatically gets PR. The status of fathers in Britain varies depending on whether they are married to the mother or listed on the baby’s birth certificate. Mothers acquire PR from the moment the baby is born.

Natural parents with PR going through child protection proceedings in England and Wales lose their PR the moment an adoption order is made. The removal of PR severs any legal connection between the child and their natural family, which in turn makes it almost impossible for children and their natural parents to stay connected socially, physically, and emotionally.

The article itself is behind a paywall, but Professor Sankaran has very kindly given Researching Reform permission to share the article in full, for free.

We would also like to thank Simon Haworth for alerting us to this work.

The article is 19 pages long, so we are adding it inside a gallery where the pages can be flicked through, magnified or paused.

We are also adding the preamble to the article in the body of the post, below some important quotes we’ve extracted from the article.

Quotes

“Under the auspices of protecting children, the child protection system terminates parental rights even when parents pose no danger, even when children are benefiting from the relationship with their family, and even when the availability of other legal arrangements satisfy the State’s parens patriae interests in keeping kids safe and providing long-term stability.”

“For example, despite the court in Adam’s case acknowledging “it may have dropped the ball,” it did nothing to correct the injustice. This seems to be in part because terminating parental rights (TPR) is part of a broader narrative, predicated on the supremacy of adoption as a permanency disposition, that invites courts to terminate parental rights more often than necessary. TPR is a central feature of the child protection system.”

Abstract

This Article explores the unnecessary termination of a child’s relationship with their parent from an empirical, clinical, and constitutional lens. Part I explores administrative data related to TPR, which like many child protection metrics, resembles nothing short of a wild west of practices and policies relating to how often and how fast child protection systems terminate parental rights.

These data also reveal how TPR can unnecessarily delay legal permanency for children, particularly those children who are living with extended family, and how a State pursuing TPR can drain its own scarce resources, a system perpetually decrying insufficient resources. Part II highlights the clinical research showing the need for children to have relationships with their birth parents, even with those who might be unable to care for them.

This section also summarizes the research documenting the trauma experienced by parents who have their parental rights terminated, which might impact the parent’s ability to care for other children in the future. Part III discusses the unconstitutional features of the child protection system’s overutilization of TPR.

Well-established principles of constitutional law require courts to search for less restrictive alternatives prior to infringing on individuals’ fundamental rights, like the right to direct the care of one’s child. Still, child protection systems stubbornly persist in terminating parental rights, a thinly veiled effort held out as a means to achieve legal permanency for children despite TPR being neither necessary nor sufficient to achieve legal permanency for children.

Key points for the family court community:

• Terminating a child’s relationship with their parent can inflict significant harm on the entire family.
• States vary on how often and how quickly they terminate parental rights.
• Unnecessarily terminating a parent’s rights can needlessly delay legal permanency for children and can drain scarce systemic resources.
• Terminating a parent’s rights, where other less intrusive alternatives exist, raises serious constitutional concerns.