Primacy, Paramountcy, and Adoption in England and Scotland

Abstract

Article 3(1) of the United Nations Convention of the Rights of the Child (‘UNCRC’) requires children’s ‘best interests’ to be ‘a primary consideration’ in actions concerning them. Article 21, however, mandates States that recognise the concept of adoption to ensure that ‘best interests’ ‘shall be the paramount consideration’. English and Scots adoption law have both moved from treating best interests as merely the ‘first’ consideration to treating them as the ‘paramount’ consideration. This ostensibly aligned both systems with the UNCRC, but raised issues regarding the child’s relationship with her birth family, also protected by the Convention. This chapter analyses the relationship between ‘primacy’ and ‘paramountcy’ within the UNCRC, before considering the implications of the shift in the governing principle in domestic law.

Keywords: Child Protection, Children's Rights, Identity, Judiciary

JEL Classification: K0, K10