Monday, January 27, 2003
Adoptive parents win access dispute
Alberta court ruling: Birth mother denied request for one letter and picture a yearAnne Marie Owens
An Alberta court has turned down a birth mother's request for annual updates from her child's adoptive parents, ruling it is an interference that could stand in the way of an adoption.
CREDIT: John Ulan, The Canadian PressAlberta's Minister of Children's Services, Iris Evans, has just completed a provincewide review of the Child Welfare Act.
The birth mother supported the adoption but wanted to be sent a letter and picture of her daughter each year through a third-party agency that would ensure she had no contact with the girl or the girl's new family.
Such correspondence has become a routine part of private adoptions, but was rejected in this case in a judgment that appears to give the upper hand to adoptive parents.
The girl, who is now eight, and her birth mother and adoptive parents all cannot be identified under court rules.
The adoptive parents strongly opposed any kind of follow-up contact with the birth mother.
Judge Ted Carruthers ruled that as the adoption was in the girl's best interest, he could not let anything interfere with it.
"It is not open to the court to assess the reasonableness or unreasonableness of the request ... but rather, the effect of this request on the mind of the prospective adoptive parents," he said in his judgment this month. "I find from that perspective that the request for access would affect the course of the adoption and therefore, would interfere with it."
The birth mother's lawyer is filing notice of her intention to appeal today.
"This gives the adoptive parents all the power," says Diann Castle, a Calgary lawyer. "You have to look at what is in the child's best interests, not just now, but in the future.... I think this was in the adoptive parents' best interests."
She said there is very little case law to help courts across the country determine how to proceed in balancing the rights of birth parents and adoptive parents.
In a similar case in Alberta's Court of Queen's Bench last spring, a judge ordered a couple to share personal information and photographs with the natural parents of their adopted son, saying the "biological, cultural and emotional links between the child and the birth family" had to override the adoptive parents' concerns this information-sharing would be an excessive intrusion and interference.
Alberta's Minister of Children's Services, Iris Evans, has just completed a provincewide review of the Child Welfare Act and is expected to introduce new legislation this spring.
Much of the debate at public meetings around the province has revolved around questions of how to satisfy the competing demands of birth parents and adoptive parents.
Ms. Evans has said she believes the child's right to know who their birth parents are overrides the rights of parents who wish to remain anonymous.
The child involved in this case is a Crown ward under the official custody of the provincial child welfare ministry.
The girl is described as being "not easily adoptable due to her special needs," which include a range of problems such as Attention Deficit Disorder and other behavioural difficulties that may be due to fetal alcohol syndrome.
The girl, who is also described as "very polite, honest, open and forthright," was six when she became a Crown ward and had continued access to her birth mother.
Ms. Castle said her client would have been content to receive annual updates through the province's post-adoption agency.
"We looked at the least intrusive option," she said. "This mother will always be the biological mother.... This child will one day look for the mother. Studies show that most adopted children need to find out about their families."
The prospective adoptive parents, who did not appear before the court but submitted a letter, said they were "adamantly opposed to access" with the girl's natural mother.
"It is intimidating, makes us feel uncomfortable and is causing stress to us," they said in their letter. "We never planned to be involved with the birth family.... Access could inhibit this adoption. Access would not be in the best interest of our family."
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© Copyright 2003 National Post