Lamhaa: A Look from two Lenses.

Masrook A Dar

Is Kashmir all about money? Do Kashmiri schools train their students to turn into Lashkar? Are innocent children used as human bombs in Kashmir? Have sex scandals to do anything with pro freedom groups? Are women used as Human shields in Kashmir? Is every pro-freedom group corrupt in Kashmir? And every pro-Indian group the messiah, these are the question that one has, when one comes out of the movie theater. Is this true or not can be a debate, but for Rahul Dholakia there is no such debate as his film ‘Lamhaa’ attributes all these things to this section of Kashmiri society.

In 2008 upsurge (Ragdaa – as was the name given by local Kashmiris), National Award winning director Rahul Dholakias’ film came in news flashes. Since then Millions of people like me have been waiting for the movie to release. The movie came into news and made headlines in June 2010 when Dholkia took the movie to Sri Lankan International Film Festival. The Government of India and the Censor board had some reservation in promoting the movie at International film Festival (Srilanka), But Dholakia and his crew stood firm and took the movie to Srilanka.

Rahul Dholakia in one of his statements said that, “‘Lamha’ is different from other films made on the plight of Kashmiris. This film is not from the point of view of the government or the politicians, it is from the point of view of the people of Kashmir,” and even stated further that, “We faced no problems in Kashmir. Omar (Abdullah), the chief minister of Jammu and Kashmir is my friend and he provided us with full security. Also there was full support from the people.”

It has been two years since I like million others were waiting for the movie to release. Finally, it was 16th of July 2010 when the veil was lifted and the wait was put to an end. Eager to see the movie I woke up early as I had to fetch the tickets, at the back of my mind I had the apprehension that the movie is from the Award winning director who has the credit of directing the much appreciated movie ‘Parzania’. When I reached the theater I found quiet a handful of guys waiting for the movie to start. I went straight away to the ticket counter and asked the guy if he could give me a better seat to sit. I was surprised by his statement, “sit wherever you want,” as a small crowd was turning to watch the much media hyped movie.

Now said this, I have two interpretations for the movie: a) as an insider – Kashmiri, and b) as an outsider – moviegoer. I will start my interpretation of Lamhaa as a moviegoer and later on come to interpret it as an insider in the second section of this writeup.

Lamhaa is about the highest militarized zone and conflict hit region Kashmir. The movie opens in 2009 and tells all about what was the condition in 1989 when the Natives of Kashmir turned refugee in their own country. Contrary to other movies based on Kashmir, in which Pakistan is depicted as villain (promoting insurgency and destabilizing not only the region but whole India) and India as hero (upholding its democratic principles and fighting for the noble cause), Lamhaa takes a middle route. Lamhaa ridicules all political leadership (across the borders), Military agencies, corrupt Businessmen, and Militant and Moderate factions. We are shown the miseries of Kashmiri people – Muslims and Pundits at surface level. Although the migration of Hindus from Kashmiri and the disappearances of Kashmiri Muslims at the hands of security agencies has nothing to do with the plot of the movie still it forms the essential part of the movie. It also shows us Dardpora village of Northern Kashmir where a large chunk of the women are half widows.

Vikram (Sanjay Dutt) is sent as an undercover agent, the parallels can be taken from any James Bond movie, on a high profile secret mission to Kashmir when the Indian intelligence gets information of a probable big terror attack in the valley. Separatist leader Haji (Anupam Kher) has been fighting against the Indian government since 1989 for freedom of Kashmir. Aziza (Bipasha Basu) supports her mentor (Haji) in his mission and Aatif (Kunal Kapoor), who is now a reformed militant, wants to contest elections from the valley to win his people and province.

Like in any conventional Hindi movie, for the protagonist Vikram, his job seems to be a child’s play. Vikram easily sneaks into much guarded police commissioner’s office in broad daylight and has easy access to all the information. He in no time finds a local tailor who has all the information about Kashmir- from politicians to intelligence agencies to separatists. Vikram, like any hero can easily convenience any body be it Peer Baba (Mahesh Majrekar) or Aziza (Bipasha Basu) and in this way he comes close to Aziza in unearthing the plot.

One finds it a little difficult to absorb the diverse characters and their ideologies. When the movie finishes the first thought which gets ones attention is do I know all the characters of the movie? The movie has overall got a good story and good star cast but really what matters is silence and slowness of the movie, which downgrades the quality of the subject. Though the movie attempts to touch several concerns like half widows of Dardpura village, sex scandals in which politicians are involved, disappearances of thousands of Kashmiri people and psychosis of Security forces (A reference in which one solider says that he has to work for mere 7000 bucks in such a difficult region). But these concerns are peripherally touched and are not a part of core narrative. Besides the picturesque land scape of Kashmir which is shown through the lens of Jamie Fowlds camera, there seems no editing work done in the movie as the camera movements from one seen to another annoys the audience however the background music is reasonably good. The next part of this review will be the interpretation of Lamhaa as an insider.

Looking at Lamhaa as an insider, I found a shift from the traditional Bollywood movies based on Kashmir. Lamhaa is neither a pro Kashmir film, nor an anti India film. It actually becomes difficult for the audience to place the movie on the conventional platform of either being pro or anti to something. Dholakia and his costars in all their interviews where of the view that the film reflects the feelings of common Kashmiri, which for me as a Kashmiri was hard to digest. If I had to sum-up it in one phrase I would borrow the phrase from Lamhaa itself – ‘Beautiful Bollywood Drama’. The main problem of the movie is looking at the subject matter superficially as a layman. One can’t account financial transactions to every account of what is happening in Kashmir. Dholakias’ analysis of Kashmir problem seems to be political gimmick and financial transactions to which every organization as well as local people are a party, sidelining the sentiments and aspirations of Kashmiris. The movie in a way does not give weight to the political dispute of Kashmir and instead mocks at it. For Dholakia it is all about money, as he uses the word ‘company’ quiet a few times in the movie. It looks as if no intellectual thought is put in the movie; rather it looks some nationalist Indian in narrating the story from the heights of Surat (a city in Gujrat).

Being a Kashmir one can easily relate Haji and his associates to Veteran Kashmiri separatist leader Syed Ali shah Geelani and APHC respectively. Dholakia’s movie is no different from other Indian movies in a sense that all Kashmiri separatists are not true representatives of Kashmir. It shows them as professional moneymakers, which a large chunk of Kashmir population and Diaspora will disagree. Haji is shown as a schoolteacher who exploits his students and shows them the path of ‘violence’. The film portrays Kashmiri separatists and militants exploiting not only these innocent children but also women. The movie shows small children being used as human bombs and women folk as the torchbearers of Kashmiri freedom struggle. In a scene where Aziza is humiliated by a number of Kashmiri women wearing green bands on their forehead and veiled in black dresses, it does not take a minute for a Kashmiri to relate these women with Dukhtarani Millat. As I said earlier there is a scene where sex scandal, which made to news headlines in Kashmir is shown. But in the movie it is Aziza, a pro Kashmiri women leader who exposes the scandal. Vikram again comes to the scene where he gives proof to Aziza that it has links to Haji – Kashmiri separatists. An ordinary Kashmir will feel the pain the way Dholakia portrays him. It is a direct attack on Kashmiri sentiments and the concept of Kashmiryat.

It would not be unfair if I use dholakia’s phrase ‘Company’ here and argue that Kashmir is a big company for Bollywood. Film directors now and then come up with movies on Kashmir and try to do some sort of poetic justice with the sentiments of Kashmiris. But the truth is it is a company where they can earn not only name but also fame by playing with the sentiments of Kashmiri people.

A large part of the movie focuses on the conflict within the separatists; there is a section of them, which boycotts elections, and the other section, which are of the opinion that elections are the solution to the problem. One can find the references to the times before 80’s when Sheikh family came in favor of elections and some of Kashmir’s prominent leaders distanced themselves from the electoral process. Although the timeline Dholakia gives is present but relating it with past becomes more obvious. The movie ends up with young Kashmir leader (Aatif) wining the minds of people and eventually elections. It becomes difficult to understand whether Dholakia is of the opinion that electoral process is the solution of the problem or justifying pro-Indian political leaders as the messiah of Kashmir.

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Masrook Dar -
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The Author is a Research Scholar at The English and Foreign Languages University, Hyderabad and can be reached at masrook@gmail.com.

Brazil, with its vast land area rich in natural resources, a vibrant and enterprising people, and the advent of modern communication and transportation, has recently come to be center stage in world economic development. Keeping pace with the new demand, the Brazilian people have recently, in the past 20-30 years, made significant advances toward a judicial system that allows fair participation for all of its citizens as well as foreign investors

Background on the Brazilian Legal System

Emerging from a repressive military dictatorship, a National Assembly of 559 members charted the new Constitution of Brazil of 1988. The “Carta” as it is often called, is a complex, 150 page document with 245 articles and 73 transitional provisions that makes not only fundamental democratic provisions, but also specific provisions on more than 400 subjects such as environmental protection, labor relations, children’s rights, science and technology, hunting, fishing, eviction laws, and much more. The system of jurisprudence set up to support the Constitution is equally complex. There is a State judicial branch and a Federal branch based on civil law statutes with parallel courts for labor law, electoral law and military law. Brazil’s new system is similar to the civil law systems of Western European countries, especially France. The increased complexity of the Brazilian system comes in the addition of an almost endless chain of possible appeals and the fact that many cases become constitutional issues due to the specificity of the constitution. In addition, the highest Brazilian court, the Supreme Federal Court, in Portuguese, the Supremo Tribunal Federal (STF), must adjudicate on every case that comes before it making its workload enormous.

After 1988, more reform was needed to prevent gridlock due to overload of the system, which fortunately could be brought about by legal action through the new Constitution. One major change came in the Amendment to the Constitution 45 passed in 2004 that provided a mechanism similar to “stare decisis” or decisions based on the resolution of past cases. A second major change has been the approbation and validation in the Brazilian code of the use of arbitration as a means to settle disputes. Brazil’s supreme court has affirmed the constitutionality of the nation’s 1996 arbitration law, and in another milestone development the Federal Republic of Brazil acceded in 2002 to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Since 1995, other amendments to the 1988 Federal Constitution have been passed into law opening formerly closed sections of the Brazilian economy such as oil and gas, mining, energy and telecommunications to foreign direct investment (FDI), and Brazil has maintained its position of one of the world’s most favored destinations for FDI worldwide in recent years.

Current Situation

The process of Brazilian internationalization is still in its infancy, however. Foreign investors in Brazil do not yet benefit from the framework set by the 1965 Convention on the Settlement of Disputes between States and Nationals of Other States (ICSID Convention), nor do they benefit from the protection of bilateral investment treaties (BITs), since Brazil has not yet ratified any of the 14 BITs it entered into with different countries in the 1990s.

Thus with the Brazilian legal system as complex as it is and with many new and ongoing developments in arbitration and international relations as well as constitutional issues, the Brazilian legal translator must be trained and updated to remain current of all forms and practices.

Legal Translations in Brazil

The field of Brazilian legal translation has become an important field given the increased participation of Brazil in the world economy. Whereas formerly most Brazilian legal cases were internal and conducted comfortably in Portuguese, today foreign entities doing business in Brazil or Brazilian firms involved in other parts of the world present their cases in international courts and courts of arbitration in a variety of languages, and often these cases must be revalidated back in Brazil. Legal translations from and into Portuguese must be done with the utmost accuracy to assure they will not be rejected in court due to format, meaning or details.

Considerations when choosing a Portuguese legal translator

When translating into Brazilian Portuguese, the translator must be a native Brazilian speaker as well as be proficient in the source language. While editors may be called upon to polish the final text in the target language, the Brazilian translator must capture the whole meaning and innuendo of the original text. On the other hand, we recommend that all documents translated into/from Portuguese for use in international or Brazilian courts be edited and proof-read by an editor of the original language working in conjunct with the Portuguese to help corroborate the meaning. The Portugues Translator must also be updated in the latest developments in Brazilian law and arbitration.

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At the Democratic convention would Hillary be President and Obama VP or the other way around?
Both are doing very well. At the Democratic convention one of them downgrading from Pesidential candidate to Vice Presidential candidate would not guarantee later similar Presidential campaign success.

In fact if Hillary wins and has a rough Presidential term, Obama as her VP may never have a chance to run successfully for the Presidency again.

What do you think will happen?

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Portuguese Translation Service provided this article.

Further information: Biometrics in schools

Various schools have implemented fingerprint locks or registered children’s fingerprints. This happened in the United Kingdom (fingerprint lock in the Holland Park School in London,39 databases, etc.),40 in Belgium (école Marie-José in Liège4142), in France, in Italy, etc. The NGO Privacy International has alerted that tens of thousands of UK school children were being fingerprinted by schools, often without the knowledge or consent of their parents.43 In 2002, the supplier Micro Librarian Systems, which use a technology similar to US prisons and German military, estimated that 350 schools through-out Britain were using such systems, to replace ” rel=”external nofollow” target=”_blank” href=”http://www.china-printing.net/”>library cards.43 In 2007, it is estimated that 3 500 schools (ten times more) are using such systems.44 Under the Data Protection Act (DPA), schools in the UK do not have to ask parental consent for such practices. Parents opposed to such practices may only bring individual complaints against schools.45

In Belgium, this practice gave rise to a question in Parliament on February 6, 2007 by Michel de La Motte (Humanist Democratic Centre) to the Education Minister Marie Arena, who replied that they were legal insofar as the school did not use them for external purposes nor to survey the private life of children.46 Such practices have also been used in France (Angers, Carqueiranne college in the Var ? the latter won the Big Brother Award of 2005, etc.) although the CNIL, official organisation in charge of protection of privacy, has declared them “disproportionate.”47

In March 2007, the British government was considering fingerprinting of children aged 11 to 15 as part of new passport and ID card (the latter having been recently implemented in the UK), also lifting opposition for privacy concerns. All fingerprints taken would be cross-checked against prints from 900,000 unsolved crimes. Shadow Home secretary David Davis called the plan “sinister.”44

Recently, serious concerns about the security implications of using conventional biometric templates in schools have been raised by a number of leading IT security experts, including Kim Cameron, architect of identity and access in the connected systems division at Microsoft, who cites research by Cavoukian and Stoianov48 to back up his assertion that “it is absolutely premature to begin using ‘conventional biometrics’ in schools”.

Biometric vendors claim benefits to schools such as improved reading skills, decreased wait times in lunch lines and increased revenues.49 They do not cite independent research to support this. Educationalist Dr Sandra Leaton Gray of Homerton College, Cambridge stated in early 2007 that “I have not been able to find a single piece of published research which suggests that the use of biometrics in schools promotes healthy eating or improves reading skills amongst children… There is absolutely no evidence for such claims”.

The Ottawa Police in Canada advised parents who fear that their children may be kidnapped to have their fingerprints taken.50

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The next generation of websites will have a vastly different way of communicating information to their visitors. Websites will evolve into true communication platforms that will take advantage of the Web’s multimedia capabilities and the Internet’s broadband penetration.

The new website model will have the look, feel, and sound of your very own narrow-cast communication channel complete with audio and video programming and on-site personalities that will present and guide audiences through the maze of content. But unlike television, this humanized Web-experience will allow site visitors to make their own programming choices; audiences will be able to experience the content they want, when they want and in the format of their choice: audio and video, or text and graphics.

Why Websites Will Become Multimedia Communication Channels

1. There are millions of websites on the Internet representing millions of small and medium size companies with an enormous aggregate investment, and the vast majority of these websites are underperforming in large part because they have not taken advantage of the Web’s multimedia communication capability and the penetration of broadband transmission.

2. Business owners want to see better results but they are being stymied in part by their own lack of vision and unrealistic expectations, but more importantly by a conventional wisdom promoted by particular Industry interests that handicap website owners’ ability to capitalize on the Web’s multimedia communication capability and its democratizing economic character.

3. Up until recently, major search engines have stifled Web-based marketing communication by failing to develop appropriate measures with which to properly index Web-based multimedia presentations. With the popularity of Google Video, YouTube, and the advent of Google Video Ads, the search engines will develop the technological means to better index multimedia content.

4. Progress can only be halted in the short term. Multimedia communication technology and the Web’s ability to accommodate it have outpaced the Web’s gatekeepers. The limitations imposed by SEO strategists on delivering content cannot stop the demand for a more humanized Web-communication experience that provides material that is informative, meaningful, and memorable.

5. As successful as some companies maybe with their PPC (pay per click) programs, the vast majority of small and medium size businesses are not. It is impossible for every business that is prepared to pay for placement or for SEO-expertise to be number one or even on the first page in any particular search category. There are just too many companies in similar businesses, with similar objectives to all rank on the first page of search results. As a consequence businesses will begin to focus on delivering more effective content to truly interested Web-visitors who take the time to find you on the Web or who respond to your direct marketing efforts. More emphasis will be placed on how long visitors stay on a site, and what visitors learn and retain from that site rather than spending money on attracting just more random traffic.

6. With articles and books being written about the Web’s natural ability to access niche markets (‘The Long Tail’ by Chris Anderson), businesses will soon realize that delivering meaningful content to interested audiences takes precedence over attracting volumes of uninterested traffic. High volumes of traffic may be the goal of sites that make their money by delivering traffic to advertisers, but if you have your own product or service to sell, it’s about the quality of traffic not the volume.

7. Human beings are hardwired to listen, learn and retain information based on how the brain receives information. People just don’t like reading information on computer screens. The linear narrative (storytelling) delivered by the sound of a human voice, enhanced by the moving image of a real person is how information is most effectively transmitted. It’s about communicating the
message and how best to deliver the content.

8. The broadcast advertising model is not relevant to the narrowcast nature of the Web. Even websites that attract thousands of simultaneous visitors, still speak to one visitor at a time, and each of these visitors can experience your content in the order and at the time they choose. The Web audience for your offering wants content, and your Web marketing and communication techniques need to be adjusted to deliver your message as content and not merely as advertising.

9. The Web’s hyperlinked nature is a two-edged sword. As quickly as people can be directed to your site by high search engine ranking or reciprocal links, they can also leave at hyper-speed when they are frustrated by reams of text, outbound links, and distracting advertisements. People want content delivered in familiar, easily understandable, and digestible formats – audio and
video.

10. Advertising as we know it is dead. Two thirds of television audiences completely ignore or disengage from television ads, and website audiences learn quickly where the ads are on a website and then avoid them. If you what to make your point, get your message across, and attract interest in what you do, you have to provide quality content that is entertaining, compelling, and above all memorable.

The Narrowcast Communication-On-Demand Website

The narrowcast communication-on-demand website model will deliver information formatted in audio and video programs. Text and static pictures will be provided for those who need to print hardcopy information for reference purposes.

This model offers businesses the ability to take advantage of the Web’s full communication capabilities and the hardwired nature of people to respond to human-based presentations that enhance attraction, comprehension, and retention of information.

If you want to improve your bottom line using the Web, you have to start thinking differently. The same old marketing and sales models of the past are not going to work on the new multimedia Web. Web-audiences will demand more than a sales pitch or product specification sheet.

How to Convert a Static Website into a Multimedia Website

Traditionally websites are divided into sections that provide information on the company, the products and/or services, clients, help resources, company news and PR initiatives, and contact information.

These traditional website elements have to be reformatted into more effect program-style presentations using video interviews, expert opinion, and how to sessions, as while as audio FAQs, knowledge bases, and product or service descriptions. Testimonials, success stories and corporate histories can be turned into entertaining and compelling video documentaries that establish brand personality and build confidence.

The Web has evolved from its early days into a fully functioning multimedia communication environment. If you’ve followed all the rules and listened to all the conventional wisdom, and you’re still not getting what you want out of your website, maybe it’s time you tried a different approach.

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Illinois National Guard major and Iraq War veteran from the US state of Illinois. shakesville.com http

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To what extent is the law on adoption fair critically evaluating the role and discretion of the judiciary in adoption proceedings while taking into account the implications of the Human Rights Act and the erosion of family values.

Adoption in England and Wales is governed completely by statute. On 30 December 2005, the principle statute governing adoption, the Adoption and Children Act 2002 was fully implemented. It represents the most radical overhaul of adoption law for 26 years, replacing the outdated Adoption Act 1976 thereby making the child’s welfare paramount and modernising the entire legal framework for domestic and inter-country adoption. The law on adoption is now in a much better position then it used to be, thanks to the ten years worth of reform proposals.

“In December 2000 the Government published a White Paper on adoption (Adoption – a new approach; Cm 5017, Department of Health, December 2000). This set out the Government’s plans to promote greater use of adoption, improve the performance of the adoption service, and put children at the centre of the adoption process. The White Paper built on the proposals of the Prime Minister’s Adoption Review, which were published for consultation in July 2000 (Prime Minister’s Review: Adoption; Performance and Innovation Unit, July 2000). The White Paper included a commitment to introduce new adoption legislation in 2001.

The Government believes that the interests and welfare of a child (throughout his/her life) should be the focus of the adoption since it has lifelong implications. For this purpose the Act makes the welfare of the child the paramount consideration for courts and adoption agencies in decision-making relating to adoption. ‘The Adoption and Children Act 2002 has updated the law to align adoption law with the Children Act 1989. The Act has improved performance of adoption services and promotes greater use of adoption for looked after children. The Act also introduces some amendments to the Children Act 1989. A feature of these amendments, contained in Part 2, Sections 111–122, is the range of alternatives to adoption that might nevertheless provide varying degrees of permanence and legal certainty. ‘[1]

Foremost, the Act aims to encourage more people to apply to adopt and build confidence in the adopter assessment process. The Government is now committed to provide an independent review where an adoption agency intends to turn down a prospective adopter’s application. The Act also includes powers enabling the appropriate Minister to establish a mechanism, which may be run by an independent body, to review qualifying adoption agency’s determinations. The intention is that the independent review mechanism will review, at a prospective adopter’s request, applications that adoption agencies have indicated they are not in favour. It is also intended to use the independent review mechanism to review qualifying adoption agency determinations about the disclosure of information concerning a person’s adoption. The mechanism could be used to review other determinations made by adoption agencies. This places a duty on local authorities to make arrangements for the provision of adoption support services, as specified in regulations. This duty will be used to deliver the new framework for adoption support services (including financial support) It also provides a new right to request and receive an assessment of needs for adoption support services. The assessment will link with other local authority functions and local education authorities and health services, where such needs are identified, with the aim of identifying a coordinated package of support to help adoptions succeed.[2]  Adoption is defined like so by Wikipedia as:

‘A process whereby a person assumes the parenting for another who is not their child and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents’.

Under the new act, the effect of an adoption order is still to irrevocably transfer the child from one family to another by severing the ties between the biological family and the child. I feel the new Act is to a large extent fair as one of its main aims are to enable more children to be adopted, mainly by relaxing the pre-requirements of potential adopters. It therefore becomes a more child centered system. It looks at ensuring birth parents understand the impact of consenting to an adoption. In takes into account the length of time disputes take to be settled and looks to resolving them early so that adoption itself does not become a fait accompli. Previously children had next to no say on adoption proceedings. Today the voice of the child can be heard through reports to the court. Now there is also an effective case management system to reduce delay in the decision making process.

They propose to achieve these aims through proceedings under the Act which are subject to the overriding objectiveset out in Rule 1 of the Family Procedure (Adoption) Rules 2005 of enabling the court to deal with cases justly, and is expressed to include that: [3]

• ·         Parties are on an equal footing           
• ·         Cases are dealt with in ways which are proportionate to the importance and complexity of issues
• ·         Cases are dealt with expeditiously and fairly
• ·         Cases are allotted an appropriate share of court resources

This is also in line with the no delay principle under the Children Act 1989. Re C (adoption disclosure to father) . It is also emphasized by the ‘paramountcy principle’

which obliges the court and agency to make decisions on whether to dispense with the consent of the birth parent if deemed incapable on grounds such as mental illness. It also obliges the court or adoption agency to consider that in general any delay is likely to prejudice the child. Section 1(4) of the Act provides a welfare checklist tailored to the particular circumstances of adoption that must be adhered to by the court and adoption agencies. In doing so, the Act aligns adoption legislation with the relevant provisions of the Children Act 1989.

Section 1(3) of the Act obliges the Court to consider that delay in decision-making is likely to prejudice the welfare of the child. This provision is further supported by section 109 which imposes a duty on the court to manage cases by drawing up a timetable and giving directions for the purpose of ensuring that the timetable is adhered to. Avoidance of delay is further ensured by the Family Procedure (Adoption) Rules 2005 which provide a procedural code for the operation of the Adoption and Children Act in all three tiers of court in England and Wales. [4]

The role played by judges can be seen in placement orders, which involve the child living with his or her prospective adopters for a specific period that acts as a trial run. The judges are expected to communicate closely with adoption agencies and local authorities and ensure that the child is placed with suitable and capable parents, taking into account special needs like learning or physical disabilities. If the child has physical disabilities, is the home the child is being placed in conducive for his or her growth? Does the family the child is being placed with have sufficient financial resources to cater to the child’s learning needs?

The children will only be placed (more permanent nature) if the criteria are met. For instance what impact would a ten year Chinese speaking Asian child have if he or she was placed in the home of say an English speaking American family, as opposed to a situation where an infant of Chinese origin is placed with that same English speaking American family? In terms of language and communication the infant would definitely be able to adjust better as opposed to the older ten year old child.

The discretion of the judges arises where parental consent is a concern before placement and or adoption orders are made. Judges can order the removal of a child from the custody of his or her biological parents even if they disagree. An example of this would be when the parent(s) is or are incapacitated. Another example would be if a parent is unfit to be the care giver of his or her child, especially so for drug dependents or other deviants. Judges also have the discretion to determine post adoption visiting rights in spite of whether adopters agree or disagree. Most adopters prefer the child to have a clean break, and prefer not having any form much less regular interferences from the biological or birth parents. After all isn’t adoption the severance of biological ties? But then again this may not be in the best interest of the child, since the well being of the child is of paramount importance in the Adoption and Children Act 2002.

An illustration of the discretionary role the judges possess can be found in the following case, Re S (Adoption Order or Special Guardianship Order)[5], where a post adoption contract with the birth parents is desirable if both parties have agreed to maintain the right to visitation. The Court of Appeal pointed out that special guardianship orders fall within the Children Act 1989 and the well known provisions of Section 1 of the 1989 act apply to them. The child’s welfare shall be the court’s paramount consideration. The court must show due regard to his ascertainable wishes and feelings, his physical, emotional and educational needs, the likely effect on him of any change in his circumstances, his age, sex, background and relevant characteristics. if not also caused by any harm which he has suffered, and how capable each of his parents, and any other relevant person, is of meeting his needs. There is a halfway house position when the court considers that an adoption order should not be granted against the welfare of the child, and where a guardianship order or a residents order will better protect the child’s welfare. Judgment was given in this case alongside the case of Re AJ6] and the case of   Re MJ where both were dealing with the same point of law. Where in Re MJ was an appeal by a mother against an order placing her child for adoption with her half-sister. She argued that the half-sister should be appointed as special guardian instead. The appeal was dismissed. Whereas in Re AJ it was an appeal by parents against an order dispensing with the need for their. consent to adoption on the grounds that it was being unreasonably withheld. The appeal was dismissed.

There is also the case of Re P(adoption leave provision) where the responsibility of the birth parents is not extinguished until the final adoption order is makes it impossible to get back custody of the child.

Now there is a new question of whether an adoption has withstood the challenge posed by the European convention of human rights and fundamental freedoms? Will adoption stand in the face of the brave new world of human rights or will it solemnly retreat?

Article 8 of the European Convention on Human Rights provides:[8]

1. Everyone has the right to respect for his private and family life …

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society … for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 6 enshrines the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal.[9]

The human rights issues arise due to the fact that adoption in itself is the severing of all ties between adopted children and their biological parents. What then happens to the right to one’s family life? The biological parents may not want their ties to be severed. Occasions like these usually entail a situation where a child is removed from the custody of his/her parents due to the fact that they are pronounced incompetent to be parents. It’s not just the parents whose rights are in question because even the child does not have an absolute say in adoption proceedings. The final decision making power still lies with the judiciary. Example Pc and S v UK.[10] where the father was not informed of the proceeding because the mothers request for confidentiality carried more weight.

On the surface there appears to be a breach of human rights, but these breaches have been justified by the spirit and intendment of the Act, hitting the ball right back home to the doorstep of the child’s welfare. At the point in time when the adoption proceedings are taking place, the child may not be mature enough to make a decision of such magnitude. Therefore, the courts take this heavy burden upon themselves with advice from adoption agencies and local authorities.

To make up for this apparent breach in human rights, the Adoption and Children Act 2002 has made provisions to enable adopted children from closed adoptions a way to get in touch with biological family members. Once eighteen years of age, adopted children may obtain an original copy of their birth certificate from the adoption agencies that placed them and the local authorities that oversaw it. Also the Registrar General is required to maintain an ‘adopted children’s register where relatives of the adopted child can leave messages for him or her (Section 77 & 78 Adoption Act). This has been encouraged for the following reasons:

• allowing them to do so gives them a sense of self. Knowing their past helps them settle into the future
• Knowledge of genetic history has proven useful especially where there are any health concern.
• Knowing about their birth parents helps obtain a sense of cultural identity.

Despite the fact that there is such an overwhelming need for a loving and supportive family unit, the need for this piece of legislation would seem like a no-brainer. However, there still are concerns about the erosion of family values with regards to the potential parents’ sexual orientation, gender identity or marital status. There is a small section of society that doesn’t think and or feel its morally or religiously justified for homosexual couples to adopt as it sends out the wrong message, and appears to be promoting a sinful way of life. There are others still who feel single parents shouldn’t be allowed to adopt because the ‘family unit picture becomes flawed’ since in their minds its not a family if it doesn’t consist of a ‘mummy and a daddy’. I, on the other hand am of the view that having people to love you and care for you, people to call family and a place to call home is far greater then who these people are and what their sexual orientation or gender is, or how many of them there are. Better one parent then none.

In a nutshell, the Adoption and Children Act 2002 is to a large extent fair. However, the implementation of the law does raise some human rights issues which on the whole is fairly justified from a family values perspective. I believe every child deserves a family.

Bibliography

CASES:

Re S (Adoption Order or Special Guardianship Order) [2007] 1 FLR

Re AJ [2007] EWCA Civ 55

Re MJ [2007] EWCA Civ 56

PC and S v UK (2002)

TREATIES:

SECONDARY SOURCES:

Family Law, University of London Subject Guide, R. Jago, 2008

Palgrave & McMillian Core Statutes Family Law

http://www.dcsf.gov.uk/everychildmatters/safeguardingandsocialcare/childrenincare/adoption/childrenact2002/act2002/

Her Majesty Courts Service : A Quick Guide to the Adoption and Children Act (2002)

Deborah Cullen, Secretary to the Legal Group, British Agencies for Adoption & Fostering (http://www.familylawweek.co.uk/site.aspx?i=ed340)

http://www.womensaid.org.uk/domestic_violence_topic.asp?section=0001000100220002§ionTitle=Children

[1] www.booksites.net/download/brammer/student_files/…/adoption.doc

[2] http://www.opsi.gov.uk/acts/acts2002/en/

[3] Her Majesty Courts Service: A quick guide to Adoption and Children Act (2002)

[4] www.ag.gov.au/agd/…Paramountcy…/13+Jan+Paramountcy.pdf

[5] [2007] 1 FLR                                                                                                                  

[6] [2007] EWCA Civ 55

[7] [2007] EWCA Civ 56

[8] http://www.murraystable.com/news-articles/articles/adoption-human-rights-seminar-paper

[9] http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights

[10] (2002)

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GRACE SUBATHIRAI