ArticleOctober 17, 2022by included

How can we tackle adoptive parent discrimination?

This National Adoption Week, Included asks why the UK Government discriminates against adoptive parents and what can be done about it

Ask any parent to describe what it is like to raise a child and early in their description will be the word expensive. Most parents don’t start the process of beginning a family thinking in detail about the financial burden – and that is as it should be. The right to family life is a fundamental human right (articles 8 and 12 of the European convention on Human Rights) and should not be determined by economics. Governments of all stripes agree that parents should be supported with the cost of raising children and as a society we place a special emphasis on those early weeks and months when a child comes into the family. However, for adoptive parents this has not always been the case, and right now there is a group of adoptive parents for whom no statutory funding is available. Despite repeated attempts by advocates and allies to influence policy, the government appears resistant to change. During National Adoption Week (October 17-23) Included is arguing for a new approach to challenging this inequality informed by equality and human rights law, rather than politics.

An intersectional view

Coined in the 1980s by legal academic and activist Kimberlé Crenshawe the term intersectionality recognises the inequalities experienced by categories of people who are at the ‘intersection’ of two or more identities. For example, discrimination against Black women in the West is different to that experienced by white women (who experience gender discrimination, but are afforded the privileges of race) or Black men (who experience race discrimination, but are afforded the privileges of gender). This is not a question of degree i.e., which groups experience the most discrimination, but recognition that having an intersectional identity has left some groups – such as Black women – unprotected by equalities legislation which considers diversity characteristics in isolation, rather than with an intersectional lens. People at these intersections are, therefore, uniquely vulnerable to discrimination.

Taking an intersectional view of parenting and adoption reveals a category of parent whose unique situation makes them ineligible for the basic support most parents enjoy. Whilst employed adoptive parents, employed birth parents, and self-employed birth parents all receive statutory support, if you are self- employed and want to adopt a child you will not receive any statutory funding from the government. In practice, this means that there is no maternity/paternity leave or maternity/paternity pay available for self-employed people wanting to build their family through adoption. This unequal treatment is both illogical and unfair. It presents a major barrier to people considering adoption and reduces the number of families available to be matched with children in need of a loving, permanent home.

Employed birth parents: Statutory support since 1975, joint highest provision 
Self-employed birth parents: Statutory support at lower level than employed parents 
Employed adoptive parents: Statutory support since 2022, equivalent provision to birth parents
Self-employed adoptive parents: No statutory support
Why does unequal treatment of adoptive parents persist?

This practice is not an accident, but is discrimination by design. The UK Government is aware of the inconsistency of provision and confidently asserts its position when challenged (see house of commons debate from March 2022). Its main argument is that maternity leave and allowance policies were historically designed to support women preparing for and recovering from the physical hardship of pregnancy and giving birth, and they see no reason to change this. This is a short-sighted and reductive view of parenting and motherhood but it also lacks logic, as the government’s own policies invalidate the argument. If it is true that the requirement for any maternity support was that a woman must be pregnant and gave birth to the child she is parenting then why are employed women who adopt – experiencing neither pregnancy, nor give birth – eligible for paid leave?

Discrimination of adoptive parents on the basis of employment status

This inconsistency requires us to look beyond the policy line in search of the underlying motive that is driving this unequal treatment. We can do this by considering not the means of growing the family (i.e., birth or adoption) but the means of generating an income: employment or self-employment. Despite strategies to support entrepreneurialism governments often seem suspicious of the 4.2 million self-employed workers in the UK, believing them to have limitless ability to flex their income and suspecting they do not pay their taxes in full. We saw this forcefully during the COVID pandemic when provision for those whose jobs were at risk was radically different dependent on their employment status.  There was, for example, no support to self-employed workers earning above £50K p.a. whereas furlough for employed workers had no upper earnings threshold. Also, the then chancellor threatened to change the National Insurance and tax rules relating to self-employed people as a condition of providing support during COVID. In the absence of other credible motives, this suspicion of tax avoidance and misunderstanding of the financial freedom available to most self-employed workers is a strong contender for the government’s insistence on maintaining the inequality of provision for parents. And this inequality falls most heavily on parents wishing to adopt.

Why does adoptive parent discrimination matter and what can we do?

There are over 5000 children currently waiting to be adopted. It is essential that these children have the potential to be matched with families of all types, not just those who follow traditional routes of employment or are wealthy enough not to need statutory support to enable maternity or paternity leave.

Attempts to reverse this policy have failed in the past, in part because they were driven by political not legal arguments. Self-employed adoptive parents are a minority group. Dispersed through multiple sectors and often in precarious financial situations, they have limited bargaining power or surplus resource to lobby forcefully for change and are thus easily ignored. This means there is little external pressure to force the government to redress this unequal treatment.

Included is calling for a legal approach, challenging the government’s position towards self-employed adoptive parents in the courts rather than the House ofCommons. We believe a legal strategies can be built on the provisions in the Human Rights Act for family life free from interference, and the indirect discrimination of this policy on same sex couples and women (unlawful under the Equality Act 2010). We also welcome an approach that brings greater recognition in the law to intersectionality and the lack of protection afforded to people at the intersection of two or more identities.

If you are self-employed and have been prevented from adopting for financial reasons, please contact Rob Adediran to continue the conversation.