The purpose of this book has been relatively simple: it has sought to determine how best to protect the rights of children in intercountry adoption in Europe by providing content to the principles set out in international law. In doing so, it has provided practical examples from European jurisdictions of the issues that can arise in establishing appropriate legislation for intercountry adoption, and how these can be improved upon by using a children's rights framework.

It has not been the intent to advocate uniform rules across Europe, but to expand on international human rights law principles to provide more detailed guidelines for conducting the intercountry adoption system in conformity with the best interests of the child. There are many areas in which uniform laws would not be beneficial; an example of this was seen in Chapter Three in the discussion of the in-country waiting periods for children before placement in intercountry adoption – the length of time that domestic alternative care is considered will necessarily depend on the individual situation in the jurisdiction in question. Where domestic foster care and alternative accommodation is well developed, then longer periods are justified in order to give the child the highest chance of a placement that ensures continuity of culture, ethnicity, language and religion, subject to difficulties for young children concerning attachment. On the other hand, where there are few domestic foster care or adoptive placements available, and the child will otherwise be living in substandard institutional care, shorter time periods must be advocated. In this situation, this book has proposed general guidelines that states must consider when developing their legislation, and when deciding what length of waiting period best suits their particular situation.

There are other issues discussed in this book that are more conducive to a prescriptive approach, for example services for adoptive parents such as preadoption counselling, post-adoption services, and psychological and legal assistance for birth parents. While the implementation of such services will depend on the financial resources of the state, the aim of the system and the principles behind it will remain unchanged.

International adoption worldwide is governed primarily by two international instruments: the United Nations Convention on the Rights of the Child, which has been ratified by all European states; and the Hague Convention on Intercountry Adoption, which has been ratified by all but three. In addition to these international instruments, the Revised European Convention on the Adoption of Children of 2008 (ECA 2008) provides a regional mechanism for regulating the practice. Although this Convention has fewer signatories than the international instruments, its regional nature and the specificity of its provisions make it an important element of the legal regime. These instruments will provide the core for the analysis of state practice in this book, and for developing normative guidelines for the protection of children's rights in intercountry adoption.

Although the European Convention on Human Rights will play a central role in this book, its provisions will not be used as a basis for analysing state practice. Instead, the decisions of the ECtHR themselves will be examined for compliance with the rights of the child as contained in the instruments above, focusing in particular on whether they promote children's rights in this area, or rather undermine the international human rights principles.

The reason for treating the ECHR differently from these other international and regional instruments is two-fold. First, and most importantly, the Convention is not a children's rights instrument. As Eekelaar and Dingwall argue, the structure of the ECHR suggests that “the minds of the drafters were not directed at the child within the family, but on the relationship between the adult members and the outside world.” Children and minors are only mentioned twice in the main body of the Convention: under article 5(1)(d) (the right to liberty and security) an exception to the right is permitted where a minor is detained for the purpose of educational supervision or for bringing him or her before a legal authority; and under article 6(1) (the right to a fair trial) which allows for the exclusion of the press or public from a trial where the interests of a juvenile require. Both these articles thus provide exceptions to general rights for adults in order to provide additional protection for children in the area of juvenile justice, rather than providing children with rights that they can enforce against the state.

Discussing the proposed QALY approach for the assessment of pain and suffering damages and highlighting the advantages emanating from its potential utilization are important to realize the desirability of its implementation. However, the theoretical discussion is of little value if the suggested framework cannot be practically implemented. Concrete examples are therefore necessary to support the theoretical discussion and to prove that the proposed QALY framework can indeed be practically applied, bringing about an improvement in the assessment of pain and suffering damages for various personal injuries. In chapter 5, the example of deafness illustrated how QALY research can be used for the assessment of pain and suffering damages. Chapter 7 contributed four more examples to the analysis. More specifically, pain and suffering damages were assessed for four additional health conditions that inflict high immaterial losses, namely paralysis (paraplegia), lower leg amputation (above and below the knee), loss of sight in one eye (and loss of one eye) and contraction of HIV. Assessing pain and suffering damages for these five cases by implementing the proposed QALY approach clearly demonstrated that existing information from health economics could be practically utilized in the context of tort law after only minor processing and at relatively low cost.

Having demonstrated both in theory and in practice the competence of the proposed QALY framework to assess pain and suffering damages better than existing approaches in a number of ways, the analysis is concluded in the present chapter by revisiting the research questions posed in the introduction and summarizing the main results. Promising venues for future research relating to the results of this study are also suggested. Literature dealing with the impact of detrimental health states and personal injuries on health, physical integrity and the quality of life is highly relevant for the evaluation of the immaterial losses resulting from these injuries, even if it has been produced in the context of scientific fields other than law and the economic analysis of law. It is hence surprising that not many comprehensive proposals, and none suggesting the framework proposed in this book, have thus far been made that this literature should be taken into consideration in the assessment of pain and suffering damages.

Calculating pain and suffering damages due to personal injury is a difficult task. To achieve the goals of tort law, as those are stipulated both in legal theory and in law and economics scholarship, the method that should be used to perform this calculation should be able to account for the decrease in health and bodily integrity, as well as the duration of the injury suffered, in a predictable and consistent manner, and at the same time allow the judge to incorporate into her decision particular circumstances pertaining to the case at hand which may influence the amount awarded.

The previous chapter illustrated how a measure that is ‘state of the art’ in the domain of health economics, commonly used to inform the allocation of health care budgets and evaluate the cost-effectiveness of medical interventions, meets the requirements above and is thus well suited to provide a systematic basis for assessing pain and suffering damages. The use of QALYs in the calculation of pain and suffering damages allows the overall reduction in quality of life as a result of the diminution in health and bodily integrity as well as the age of the victim and the duration of injury to figure in the amounts awarded. The range of QALY values in turn allows judges to retain their discretion in choosing the correct value within the range that corresponds to the personal conditions and the specific circumstances of the case.

Besides these qualities, the current chapter suggests that using QALYs in the calculation of pain and suffering damages may have an additional advantage. Under the influence of insights from cognitive psychology, behavioral law and economics have proposed that victims (i.e. plaintiff s) as well as judges may make false predictions about the victims’ future subjective well-being. These false predictions are attributed to the psychological phenomena of hedonic adaptation neglect and the focusing illusion which can influence the calculation of pain and suffering damages and lead to awards that do not correctly reflect the loss of enjoyment of life of the victim due to the injury.

This book is concerned with personal physical injuries that occur in a tort law context. This implies that in case of an illicit act resulting in injury, the rules of tort law apply in affirming liability and awarding damages. Thus, a party may be liable for inflicting a personal physical injury if she has acted illegally intentionally or through negligence. In certain cases she may even be strictly liable irrespective of her culpability. To found liability, a causal link must exist between the unlawful behavior and the injury inflicted in all three cases and additionally, only in cases of negligence, a duty of care and a breach of this duty are required, the definition of which may differ per country. The tort law context further implies that the parties involved in the dispute arising due to the infliction of injury may be perfect strangers, such as the parties to automobile accidents, or may previously have had a consensual/contractual or market relationship such as the parties involved in medical malpractice cases (doctor– patient), cases of product liability (manufacturer/seller–consumer) and cases of work-related accidents (employee–employer). In the latter cases, if a contractual agreement already exists before the injury was inflicted, the injured party may be able to claim for damages both on the basis of a tort and on the basis of a breach of contract, provided of course that this is allowed by the legal system at hand.

Personal physical injuries may generate two types of losses: monetary losses and immaterial losses. Monetary losses, frequently also referred to as pecuniary, may for instance consist of the loss of future earnings, the costs of hospitalization or doctor visits at home, the costs of paying a maid to clean the house, the costs of taking a taxi instead of driving to work, as well as any other cost incurred after the injury in order to sustain the injured person. With the exception of loss of future income, which is more challenging to assess, these losses are relatively easy to ascertain and compensate as they are incurred as a result of spending money on goods and services exchanged in markets, refunding the price of which will mend the loss.

Identifying the goals of a branch of law is an important task. Clear and coherent goals allow the content of both legal rules and court judgments to be formulated in a way that facilitates their attainment. The previous chapter illustrated that, according to traditional legal theory, tort law serves a plurality of goals. Of these, compensation and satisfaction are widely accepted as being most relevant when the result of a tort is personal injury. They provide guidance as to how losses arising from personal injury should be treated and, particularly with respect to immaterial losses, how pain and suffering damages should be set in order to achieve these goals.

The conclusion drawn from the preceding analysis is that in order to attain compensation and satisfaction, the damages awarded for pain and suffering in cases of personal injury should be determined on the basis of criteria pertaining to the resulting immaterial effects of the injury, namely the reduction in health and quality of life. To assess these effects, the severity and duration of the injury in combination with the age as well as other special characteristics of the victim at hand, should be taken into consideration. Unfortunately, as noted previously, despite being accepted by legal systems as the main elements for determining pain and suffering damages, these criteria are not always explicitly incorporated as such and subsequently not clearly reflected in court decisions. To the extent that judicial adjudication on damages fails to take into consideration the reduction in health and quality of life resulting from a personal injury, it may also be unsuccessful in accomplishing the goals of compensation and satisfaction.

Having investigated the goals of tort law and the subsequently emerging criteria for assessing pain and suffering damages, as these are stipulated by traditional legal theory, the analysis now turns to law and economics. The following sections present the goals of tort law as accepted by economic analysis, in order to provide the underlying rationale that should permeate the assessment of damages for immaterial losses. These goals provide a measure of judgment regarding the competence of current and hereafter proposed methods of damage assessment to attain them.

The preceding detailed description of the QALY, although far from being complete, aimed to show that the QALY is a reliable measure of the quality and duration of life that has resulted from and is supported by thorough scientific research. The previous analysis emphasized the QALY's strengths and weaknesses in the context of the economic appraisal of health care programs and interventions, where it has been used so far. The ability of QALYs to represent the consequences of different health treatments and interventions in terms of morbidity and mortality in a relatively simple manner has led many researchers to recognize the QALY as the best method currently available to assist the allocation of health care resources, although this assertion has not been uncontested. Taking advantage of these characteristics, the current chapter revisits the problem underlying the assessment of pain and suffering damages for personal injuries, offering a solution that is based on an alternative use of the QALY.

As explained previously in chapter 2, the problem with the assessment of pain and suffering damages, as it is currently performed in most of the countries examined, is that it lacks a framework which can take into account the relative consequences of different types of injuries on the remaining life expectancy and the health and quality of life of the victim and translate them into monetary awards. The result is that damages awarded may be unpredictable and not reflect the gravity of the immaterial loss incurred. Under these circumstances it is doubtful whether the amounts granted can provide fair compensation to the victim, and offer appeasement for her loss. Analogous negative repercussions are generated from current assessment practices for deterrence and loss spreading. To deter potential tortfeasors, the magnitude of pain and suffering damages should depend on the gravity of the losses and be easily expected to induce individuals to take precautions. Similarly, to ensure that liability insurance is sustainable and encourage its provision and purchase, the size of pain and suffering damages should be verifiable ex ante to allow incorporation of the losses into the premiums and product/service prices offered.

The assessment of pain and suffering damages as it is currently performed in many countries does not seem to take into account all the crucial elements that would allow the objectives of tort law and of the economic analysis of tort law to be attained. The preceding analysis clearly demonstrated that there is a large scope for improvement, which could be achieved by utilizing a measure that has been used so far to evaluate health treatments and medical interventions.

The proposed QALY approach can take into consideration elements that are important for the attainment of compensation and satisfaction, such as the intensity of the pain, the type, severity and duration of the injury, the loss of life expectancy, and the personal characteristics of the victim, and express them in the resulting awards in a predictable and consistent manner. Moreover, the QALY can offer the missing framework to estimate the ex ante determined damages; it can set the damages so as to ensure that the injurer correctly internalizes the costs the victim would be willing to pay and that the victim is not over-insured against her will. By treating immaterial losses arising from personal injuries in a way that is consistent with both deterrence and insurance considerations, the suggested framework can therefore strike a balance between the two goals with respect to the treatment of immaterial losses. Besides the abovementioned advantages of the QALY, chapter 5 also explained that the proposed approach is expected to result in a decrease in litigation costs and to facilitate speedier adjudication, consequently enhancing the overall reliability of the judicial system. Finally, chapter 6 examined whether, under certain conditions, the QALY framework could be able to address the possibility that victims (and judges) disregard the gradual improvement in life satisfaction after an adverse event due to hedonic adaptation and focusing illusion and thus claim for (or decide in favor of) a higher damage award than what would correspond to the actual losses incurred. If additional empirical evidence were indeed to corroborate that these misperceptions occur regularly, and at the same time legal scholarship were to reach the conclusion that they should be accounted for in the assessment of pain and suffering damages, then the proposed QALY framework could perform this task.

The method used to assess pain and suffering damages should, according to the previous chapters, take into consideration many different factors to be able to attain the goals of tort law as stipulated both by traditional legal theory and by law and economics. On the one hand, to achieve fair compensation and satisfaction, pain and suffering damages should reflect the total health reduction resulting from the personal physical injury. Therefore, factors such as the type, severity and duration of the injury, the pain and emotional strain incurred, as well as the loss in life expectancy, should figure in the assessment. On the other hand, to strike a balance between the goals of deterrence and insurance and promote both goals through the treatment of immaterial losses, pain and suffering damages should be based on the ex ante determined damages, namely the amount that a victim would be willing to forego before an accident occurs to reduce her expected immaterial losses.

Besides the ability to incorporate these features, the assessment should also generate consistent and predictable amounts. Consistency and predictability of the amounts will facilitate deterrence by allowing potential tortfeasors to take into consideration the prospect of having to pay a certain amount of damages if they inflict harm. Furthermore, it may also promote loss spreading by allowing insurers, product manufacturers and service providers to better predict the expected injury damages and incorporate them into the premiums offered. The analysis in the previous chapter showed that the assessment of pain and suffering damages should additionally be as accurate as necessary to reduce the administrative costs of justice. A proposal in this direction is to assess pain and suffering damages by taking into account the average losses resulting from a certain type of injury as well as the age of the victim. In any case, the assessment method implemented should strike a balance between the costs of additional accuracy and the benefits of that accuracy for the attainment of the aforementioned goals.