Children's Access to Adoption Records—State Discretion or an Enforceable International Right?

Abstract

Although at first sight the issue of children's access to adoption records appears both narrow and arguably clear in international law, it is an issue which raises fundamental questions. It is not that secrecy is inherently wrong, the arguments do not rest upon a moral presumption either way.' The questions which are posed here are, first, whether secrecy is appropriate in relation to adopted children and, second, whether the legal control of secrecy equally serves both adults' and children's interests. Access by children to their birth records whilst they are still children is perceived as opening 'Pandora's Box,' risking traumas between three possible parties: the adopted child and the adoptive and birth parents. Nevertheless, because it is an issue which challenges our notions of equality, setting issues of participation and autonomy against those of protection and welfare, it ought no longer to be avoided. The moral imperative behind much of international human rights law is the treatment of all of humanity as of equal worth. Hence, many international and regional human rights treaties enshrine either general or specific provisions on equality and unjustifiable discrimination. However, although international law takes a substantive approach to equality rather than a formalistic one,2 the concept of equality has been insufficiently developed to counter child discrimination effectively. Had it been otherwise, it would not have been necessary to adopt a global human rights treaty for children because they would already have been sufficiently protected under general equality clauses. Indeed, the misapplication of the equality principle has had negative consequences for children, as their particular needs have not been taken into account. Belatedly, there has been a welcome and increasing focus on the discrimination occurring between adults and children, but discrimination between different groups of children often passes unnoticed. This is because there is an additional element to discrimination concerning children which does not appear to have been considered by human rights fora. Differences may be introduced because they appear at first sight to be necessary for the protection of children, but such are arguably unlawful unless they can be shown to have an objective and reasonable justification.3 Child access to adoption records also has equality implications for adopted children as a class. Older children will remember their names and require