BLOG: Finland’s Prime Minister Petteri Orpo’s Governments Programme took a much-awaited initiative to advance the role of adoption from care in Finland. However, the placement of this initiative in the Programme, paired together with solving the infertility crisis, raises some serious questions about the role of children’s rights in this equation.
Blogpost by: Petra Järvinen, Doctoral Researcher, Faculty of Management and Business, Tampere University, and visiting scholar at the Centre for Research on Discretion and Paternalism (DIPA) in April and May 2024.
Introduction
In Finland, adoption and child protection are understood to be detached from one another. The two are governed by different laws and have totally different goals: where adoption permanently changes the legal familial ties and provides the child with a ‘new family’, child protection measures are temporary and aim to strengthen and preserve existing bonds between the children and their biological parents. Recently, however, there has been a political initiative from the current government to unite the two. The Government’s Programme, opens up the possibility of increasing the use of adoption from care. Although the initiative itself is a welcome one, the linkage made by the Government’s Programme with adoption from care to infertility and family planning raises concerns about children’s rights. In this blog post, I will first introduce the legal and political developments about adoption from care, highlight these previously mentioned concerns, and lastly, suggest a way forward.
The legal divide between child protection measures and adoption
In Finland, child protection and adoption are traditionally kept separate in legislation. Child protection measures, such as out-of-home care which this text is focused on, are governed by the Child Welfare Act (417/2007). Out-of-home care is seen as temporary, and reunification of the child and biological family, when the need for child protection measures no longer exists, should always be the aim. Still, such reunifications are quite rare.[1]
In Finland, child protection and adoption are traditionally kept separate in legislation.
Petra Järvinen
Adoptions, on the other hand, are governed by the Adoption Act (22/2012). Adoption severs the ties between a child and their biological family, giving the child legal status as the child of their adoptive parents. The aim of adoption is to create a new family unit by establishing a legal parent-child relationship between people who did not have that before.
Unlike out-of-home care, adoptions are permanent. This creates a fundamental difference between them, and there is a clash between the aims embedded in the two measures. While the aim of the out-of-home care is to eventually reunite the child with their biological family, adoption from care severs the child’s legal ties to the biological parents and replaces those with legal ties to adoptive parents. This clash is especially highlighted when adoption is used as a child protection measure, where the foster parents adopt the child in their care. This measure is rarely used but is legally possible. Here, the out-of-home care placement is terminated with adoption, which is permanent in nature. Although the ultimate goal of both measures is to provide safe and secure conditions and a loving family for a child to grow up with, the way to get there differs fundamentally.
Adoption from care also raises questions about the role of parental consent. Section 11 of the Adoption Act has made adoption without parental consent a possibility in exceptional circumstances. These exceptional circumstances entail that adoption needs to be undeniably and strongly in the best interests of the child, and there are no sufficient reasons for parents to withhold their consent considering the quality of the relationship between a child and their biological parents. However, adoption without parental consent is extremely rare. In a study on adoptions in Finland during 2015–2016, Laine et al. (2018) finds that only 63 out of 618 judgments concerning adoptions in the two years were identified as adoptions from care.[2][3] All 63 decisions were based on parental consent and except for two cases, the birth parents were the ones initiating the adoption proceeding.[4] By advancing the legislation concerning adoption from care, the role of parental consent in these proceedings needs to be regulated, too.
Adoption without parental consent is extremely rare.
Petra Järvinen
New prospects?
In 2023, Prime Minister Petteri Orpo’s government published its Government’s Programme, a document naming the goals and objectives of the current government for the next four years.[5] The Programme included remarks about advancing the role of adoption from care when it’s in the best interests of the child. Although this entry is quite vague, it recognizes that in some cases it might be in the best interests of the child to be adopted from care.
The entry also recognizes that, in theory, the possibility to adopt from care is afforded in the current legislation, situated in the grey area between the Adoption Act and the Child Welfare Act, but the laws are not intended to work together. In the arguments of the Government’s Proposal for the Child Welfare Act back in 2006,[6] it was stated that out-of-home care should always be regarded as a temporary measure. The question about adoption from care, though raised in the Proposal, was ruled to be outside the Act’s scope, further widening the gap between adoption and child protection measures.
In theory, the possibility to adopt from care is afforded in the current legislation, situated in the grey area between the Adoption Act and the Child Welfare Act, but the laws are not intended to work together.
Petra Järvinen
The Governement’s Programme, however, seeks to build on this already existing, though rarely utilized, structure that falls in the grey area between the Child Welfare Act and the Adoption Act. The Programme’s initiative to advance the role of adoption from care is much awaited by academics and child protection professionals, but it has not gained motion yet, as I will elaborate below. Moreover, the location of this new opening in the Programme is problematic and raises concerns about the aim of the proposition.
What is there to be afraid of?
The section in the Government’s Programme mentioning adoption from care reads as follows:
“In Finland, childlessness affects one in five persons in fertile age. Adoption processes will be facilitated. In the best interests of the child, attention will be paid to an option allowed by law: adoption of a child who has been taken into care.”
Here adoption from care is tied together with facilitating and streamlining the adoption processes, but it is also connected to the infertility crisis and subsequently hinted to as a way of solving it. The plans for updating the child welfare law, which has the support of experts and academics in the field, appear a few pages later. In between these two entries, there are remarks about contraception, parental leaves and student welfare, highlighting that adoption from care is not understood to be part of the child protection system but rather part of the policies considering family planning, fertility and wanting a child.
This chosen approach to adoption from care raises questions: Why is adoption from care linked to the infertility crisis and portrayed as a solution to it alongside “regular” adoption? At the same time, the need to open the discussion could be argued for with the ever-prolonging time spent in out-of-home care,[7] the upward trend in children in foster care[8] and a declining number of foster families. The choice to speak about the infertility crisis and adoption from care in the same sentence creates a picture where the masses of children in out-of-home care are seen as a possibility to shorten the queue of willing adoptive parents by giving them a child that is already readily available. This is problematic, not only from the ethical standpoint but also from the standpoint of children’s rights and children’s best interests which ought to be given priority when making decisions about their future.
The choice to speak about the infertility crisis and adoption from care in the same sentence creates a picture where the masses of children in out-of-home care are seen as a possibility to shorten the queue of willing adoptive parents by giving them a child that is already readily available.
Petra Järvinen
Where to go from here and how to get there?
The discussion about adoption from care is nevertheless now open in Finland, although it has not yet gained the attention of the wider population. My opinion is that when – or if – these suggestions ever evolve into a legislative process, it needs to be done together with a renewal of the Child Welfare Act, simultaneously implementing adoption from care into the Act. In this way, the principles and good practices of child protection, shaped by the human rights instruments, such as the United Nations Convention on the Rights of the Child (1989) and case-law by European Court of Human Rights,[9] and the fundamental rights stated in the Finnish Constitution, would guide the process. This would also help to safeguard the best interest principle and underline that the individual needs and rights of the child need to be the most important considerations. When done that way, adoption from care is not treated as a way to solve the infertility crisis or left on the sidelines of the Adoption Act. Rather, it’s seen to add something valuable that’s still missing from the toolbox of child protection measures, and in that way give a child a permanent, loving family that responds to their needs.
My opinion is that when – or if – these suggestions ever evolve into a legislative process, it needs to be done together with a renewal of the Child Welfare Act, simultaneously implementing adoption from care into the Act.
Petra Järvinen
[1] Pösö, T., Toivonen, V-M. and Kalliomaa-Puha, L. (2019) Haluaa kotiin äidin luo. Erimielisyydet ja lapsen etu huostaanoton jatkamista koskevissa valituksissa ja hallinto-oikeuden ratkaisuissa. [Wants to get home to mother. Disagreement and best interests of the child in the appeals and judgements of administrative courts about care order continuation]. Oikeus 3:2019, p. 226–243.
[2] The exact numbers about adoption from care are not available, because adoption from care is not officially part of the child protection system, and therefore there are no statistics concerning it.
[3] Laine, S., Pösö, T. and Ujula, T. (2018) Adoptio lastensuojelussa: lukumääristä ja ominaispiirteistä [Adoption in child protection: About statistics and charasteristics], Yhteiskuntapolitiikka 2(83), p. 199–207.
[4] As a rule, adoption needs to be consented both by the biological parents and the child of 12 years or older.
[5] A strong and committed Finland. Programme of Prime Minister Petteri Orpo’s Government. Publicatios of the Finnish Government 2023:60. [ https://valtioneuvosto.fi/en/governments/government-programme# / ]
[6] Governments Proposal for Child Welfare Act 252/2006 [Hallituksen esitys eduskunnalle lastensuojelulaiksi ja eräiksi siihen liittyviksi laeiksi 252/2006 vp].
[7] According to the statistics of 2023, 31 % of children in foster care in 2023 have spent at least half of their lives, and 25 % children have spent over six years in out-of-home care. Finnish Institute of Health and Welfare, Child welfare 2023 – Child welfare notification filed for one out of six teenagers in 2023. Official Statistics of Finland. [Finnish language version]. [All language versions available at https://www.julkari.fi/handle/10024/148992 ]
[8] Finnish Institute of Health and Welfare, Child welfare 2023 – Child welfare notification filed for one out of six teenagers in 2023. Statistics report 19/2024. Official Statistics of Finland. [All language versions available at https://www.julkari.fi/handle/10024/148992 ].
[9] For example the cases of K. & T. v. Finland (25702/94, 12.7.2001, GC), K.A. v. Finland (27751/95, 14.1.2003) have had an effect on current child welfare legislation and references for these cases can be found in preparatory materials of the Child Welfare Act (see footnote 2).
This work was funded by the Strategic Research Council (SRC) established within the Research Council of Finland, grant numbers 345950 and 346002